United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
O'CONNER, UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's petition to vacate, set-aside,
or correct sentence pursuant 28 U.S.C. § 2255. For the
foregoing reasons, the Court dismisses the petition as barred
by the statute of limitations.
23, 2012, a jury found Petitioner guilty of bank robbery in
violation of 18 U.S.C. § 2113(a) and 2. On September 7,
2012, the Court sentenced Petitioner to 210 months'
to sentencing, on September 4, 2012, Petitioner filed a
motion for new trial under Fed. R. Crim. P. 33. (ECF Crim.
No. 80.) He alleged that (1) his non-testifying co-defendant,
Jeremy Butler, who was undergoing a competency examination at
the time, told fellow inmates that Petitioner did not know
that he was going to rob the bank; (2) Teddy Rogers, the
unindicted passenger in Petitioner's vehicle during the
robbery, would have testified-absent a threat of prosecution
from the government-that he and Petitioner lacked knowledge
that Butler was going to rob the bank; and (3) the
government's comment in closing argument that Teddy
Rogers was not indicted because he was facing a life sentence
in state court was untrue and created a manifest injustice.
sentencing, the Court denied Petitioner's motion for new
trial. The Court found that the evidence against Petitioner
“was overwhelming”; that the inmates'
statements were inadmissible and not “likely to produce
an acquittal”; that Petitioner had not produced newly
discovered evidence; that it had sustained Petitioner's
objection to the government's closing argument and cured
any prejudice with an instruction to the jury; and that Teddy
Rogers made a counseled decision not to testify. (ECF Crim.
No. 97 at 15-16.)
sentencing, on September 21, 2012, Petitioner filed a second
motion for new trial. (ECF Crim. No. 89.) He alleged newly
discovered evidence that co-defendant Butler's counsel
was seeking a competency hearing for Butler. Petitioner
claimed Butler lacked the mental capacity to form an intent
to commit bank robbery, which he argued supported his claim
that he was unaware Butler intended to rob a bank. The Court
denied the motion in a written order. (ECF Crim. No. 93.) The
Court concluded that Petitioner had “failed to show
that the post-trial finding that Butler is incompetent is
material, not merely cumulative or impeaching, and would
probably produce an acquittal.” (Id. at 3
(citing United States v. Gonzalez, 661 F.2d 488, 496
(5th Cir. 1981)).
September 23, 2012, Petitioner filed a direct appeal. On June
20, 2014, the Fifth Circuit affirmed his conviction and
sentence, as well as the denial of his motions for new trial.
See United States v. Anderson, 755 F.3d 782 (5th
Cir. 2014). Petitioner did not file a petition for writ of
25, 2016, Petitioner filed the instant § 2255 petition.
1. His sentence is unlawful under Johnson v. United
States, 135 S.Ct. 2551 (2015);
2. He is actually innocent; and
3. The prosecutor committed misconduct during closing
August 7, 2017, Petitioner filed a supplemental petition
arguing his counsel was ineffective for failing to challenge
the career offender provisions under §§ 4B1.1 and
4B1.2 of the sentencing guidelines. On August 18, 2016, and
July 18, 2017, the government filed motions to dismiss the
petition as barred by the statute of limitations. On August
17, 2017, the government ...