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Ayala-Rodriguez v. United States

United States District Court, S.D. Texas, Brownsville Division

November 9, 2017

JONI AYALA-RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Rolando Olvera United States District Judge.

         Before this Court is a pro se memorandum by Joni Ayala-Rodriguez (hereafter, "Petitioner") entitled "Memorandum in Support of Motion" (Docket No. 1), which this Court construes as a motion under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence by a person in federal custody (hereafter, "Petitioner's Motion"). After a do novo review of the record, the "Magistrate Judge's Report and Recommendation" (Docket No. 8) (hereafter, the "R&R") is hereby ADOPTED as follows and Petitioner's "Memorandum in Support of Motion" (Docket No. 1) (hereafter, "Petitioner's Motion") is hereby DISMISSED.

         I. BACKGROUND

         On January 15, 2015, a federal grand jury indicted Petitioner, charging him as an alien unlawfully found in the United States after deportation, having previously been convicted of a felony. United States v. Rodriguez, No. 1:15-cr-083-l, Criminal Docket No. 6 (hereafter, "CR Docket"). Petitioner subsequently pled guilty to the indictment on March 16, 2016. CR Docket No. 13. On January 13, 2017, Petitioner filed the instant ten (10) page motion which the clerk's office construed as a motion under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence by a person in Federal Custody.[1] Docket No. 1. On January 26, 2017, this Court notified Petitioner that he failed to contain an averment indicating that Petitioner's claims in his motion were made under penalty of perjury. Docket No. 4. As a result, this Court ordered that Petitioner complete a blank, thirteen (13) page §2255 form that included said averment. See Id. Petitioner never subsequently complied with said order.

         II. DISCUSSION

         Although Petitioner never supplemented his §2255 motion in accordance with this Court's order so that his claims were supported by a penalty of perjury averment, this Court will overlook said technical deficiency and rule on Petitioner's Motion based solely on the merits. After a de novo review, this Court finds that Petitioner's claims lack merit and are therefore dismissed.

         A. Procedural Issues with Petitioner's Motion

         Under Federal Rule of Civil Procedure 41, dismissal is proper if a plaintiff fails to comply with a court order, and the dismissal acts as an adjudication on the merits. Fed.R.Civ.P. 41(b); Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991) (asserting that the court has the power to dismiss sua sponte under Rule 41(b)). This Court informed Petitioner of his motion's procedural defect, as he failed to include a penalty of perjury averment, and sent him a thirteen (13) page, blank §2255 form on which to rewrite his motion. Alternatively, however, Petitioner could have refiled his original motion including the one-sentence penalty of perjury averment as such language was expressly provided to him. As Petitioner's task may not have been clear to a pro se plaintiff, this Court declines to dismiss Petitioner's pro se motion on the basis of a technical defect and will proceed to the merits of Petitioner's Motion instead. See Jackson v. City of Beaumont Police Dep't, 30 F.3d 1490 (5th Cir. 1994) (asserting that the reason a "generous construction" is given to pro se pleadings is the "desire to decide a complaint on the merits rather than on the procedural deficiencies that might result from a pro se petitioner's legal ignorance); Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting that allegations of pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers).

         B. Merits of Petitioner's Motion:

         Pursuant to 28 U.S.C. § 2255, a defendant may move to vacate, set aside or correct his sentence if: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the district court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). The nature of a §2255 collateral challenge is extremely limited, being reserved for instances of constitutional or jurisdictional magnitude. United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991).

         i. Qualification for the Fast-Track Program

         First, Petitioner appears to allege that he qualified for the "Fast-Track Program", which would have reduced his sentence, and the Court erred by failing to reduce his sentence in accordance with the Sentencing Guidelines and the fast-track program. See Docket No. 1, at 3-10. For purposes of stating a claim under §2255, a prisoner may not attack a court's technical application of the sentencing guidelines in a §2255 motion because such a claim is not cognizable under the statute. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam) ("A district court's technical application of the Guidelines does not give rise to a constitutional issue."); United States v. Arias-Lopez, No. CA C-12-148, 2013 WL 628694, at *4 (S.D. Tex. Feb. 19, 2013) ("A court's technical application of the sentencing guidelines is not cognizable in a §2255 motion.") (citations omitted).

         Although Petitioner presents ample evidence of the purpose and history behind the fast-track program, he provides negligible support as to how the program applies in his case. See Docket No. 3-10. Moreover, Petitioner does not contend that the sentence imposed was "in excess of the maximum authorized by law". 28 U.S.C. § 2255(a). Therefore, Petitioner's challenge to the court's technical application of the guidelines and whether to sua sponte provide the benefits of the fast-track program at sentencing is without merit.

         ii. Ineffective ...


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