United States District Court, E.D. Texas, Sherman Division
ORDER OF DISMISSAL
L. MAZZANT UNITED STATES DISTRICT JUDGE.
Demont Menasco Herrod, a prisoner confined at F.C.I.
Beaumont, brings this motion to vacate, set aide or correct
his sentence pursuant to 28 U.S.C. § 2255. The motion
was referred to United States Magistrate Judge Christine A.
Nowak, who issued a Report and Recommendation (Dkt #12)
concluding that the motion should be denied. Herrod has filed
objections (Dkt #13).
is in custody pursuant to a conviction for the offense of
conspiracy to distribute and possess with intent to
distribute 5 kilograms or more of cocaine and 1, 000
kilograms or more of marijuana, in violation of 21 U.S.C.
§ 846. On June 14, 2013, Herrod was sentenced to 175
months of imprisonment. The sentence was formally entered on
July 3, 2013. On February 19, 2015, the conviction was
affirmed. United States v. Herrod, 595 F. App'x
402, 412 (5th Cir. 2015). Herrod did not file a petition for
a writ of certiorari.
present proceedings were begun on July 1, 2016. Herrod
focuses on the United States Sentencing Guidelines. Based on
his criminal history, he qualified as a career offender under
United States Sentencing Guidelines § 4B1.1. PSR ¶
27. He argues that he should not have been sentenced as a
career offender in light of the United States Supreme
Court's ruling in Johnson v. United States, 135
S.Ct. 2551(2015). Johnson, however, concerns the
application of a criminal statute, as opposed to the
Sentencing Guidelines. The Supreme Court recently declined to
extend the reasoning in Johnson to the Sentencing
Guidelines. Beckles v. United States, 137 S.Ct. 886,
895 (2017). The present motion lacks merit in light of
objections, Herrod again argues that he should not have been
sentenced as a career offender under the Sentencing
Guidelines. Since Beckles was decided, the Fifth
Circuit has repeatedly rejected cases by inmates trying to
extend Johnson to the Sentencing Guidelines.
United States v. Dotson, ___F. App'x___, 2017 WL
3098172, at *1 (5th Cir. July 20, 2017); United States v.
Taylor, ___ F. App'x___, 2017 WL 2703680 (5th Cir.
June 21, 2017); United States v. Holley, 689 F.
App'x 230 (5th Cir. 2017); United States v.
Garces, 686 F. App'x 252 (5th Cir. 2017); United
States v. Martinez, 682 F. App'x 304 (5th Cir.
2017). Moreover, the Fifth Circuit has repeatedly held that
the technical application of the United States Sentencing
Guidelines does not raise an issue of constitutional
dimension for purposes of § 2255 proceedings. United
States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir.
1998); United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992). The type of claim Herrod is bringing in this
case is not cognizable in a § 2255 proceeding.
light of the foregoing, the Government argues that the motion
is time-barred. On April 24, 1996, the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) was
signed into law. A one year statute of limitations was
enacted for motions to vacate, set aside or correct a
sentence. 28 U.S.C. § 2255(f). In general, a movant for
collateral relief has one year from “the date on which
the judgment became final” to file a motion challenging
his conviction. 28 U.S.C. § 2255(f)(1). The Supreme
Court has held that when a federal criminal defendant does
not file a petition for certiorari on direct review, the
one-year statute of limitations period starts to run when the
time for seeking such review expires. Clay v. United
States, 537 U.S. 522, 532 (2003). In such cases, a
conviction is final ninety days after the appellate court
issues a decision. Id. See Sup. Ct. R. 13(1).
present case, the Fifth Circuit affirmed Herrod's
conviction on February 19, 2015. The conviction became final
ninety days later since Herrod did not file a petition for a
writ of certiorari. It became final on May 20, 2015. The
present motion was due no later than one year later on May
20, 2016. It was not filed until June 20, 2016 (utilizing the
“mailbox rule”). The motion was not timely filed.
Moreover, because the Supreme Court did not hold that
Johnson applies to guideline career offenders on
collateral review, the motion is not subject to the
alternative deadline provided by 28 U.S.C. § 2255(f)(3).
The present § 2255 motion is time-barred and otherwise
objections focus solely on the claim that he was wrongfully
sentenced as a career offender under the United States
Sentencing Guidelines. He argues that he should be granted
relief despite Johnson and Beckles. See Objections,
page 4. Nonetheless, the case law on this matter is clear
that Herrod's claim is not cognizable in a § 2255
proceeding. Moreover, he failed to show or address the
conclusion that the present § 2255 motion is
time-barred. Relief is unavailable.
Report of the Magistrate Judge, which contains her proposed
findings of fact and recommendations for the disposition of
such action, has been presented for consideration, and having
made a de novo review of the objections raised by
Herrod to the Report, the Court is of the opinion that the
findings and conclusions of the Magistrate Judge are correct
and Herrod's objections are without merit. Therefore, the
Court hereby adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the
Court. It is accordingly
that Herrod's motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 is
DENIED and the case is
DISMISSED with prejudice. A certificate of
appealability is DENIED ...