United States District Court, N.D. Texas, Dallas Division
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
FISH, SENIOR UNITED STATES DISTRICT JUDGE.
habeas case under 28 U.S.C. § 2255, Adrian Castro
(petitioner) challenges his conviction of several counts in
Cause No. 3:04-CR-018-G, including two counts of using,
carrying, and brandishing a firearm during or in relation to
a crime of violence in violation of 18 U.S.C. §
924(c)(1)(A) (counts two and ten). On November 9, 2017, the
United States Magistrate Judge recommended that the motion to
vacate be denied with prejudice as barred by the statute of
limitations. (See docket entry 7.) Petitioner timely
filed objections. After reviewing the objections and
conducting a de novo review of those parts of the
findings, conclusions and recommendation (FCR) to which
objections have been made, I am of the opinion that the
findings and conclusions of the magistrate judge are correct,
and they are accepted as the findings and conclusions of the
challenged his convictions for violating § 924(c) as
invalid. He argued that the definition of a “crime of
violence” in § 924(c)(3)(B) of the Armed Career
Criminal Act (ACCA) as an offense “that by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense” is unconstitutionally vague in
light of Johnson v. United States, 135 S.Ct. 2551
(2015). He now objects to the recommendation that his motion
be denied as time-barred.
contends that the right he asserts was recognized in
Johnson, and he objects to the conclusion that
Johnson does not apply to § 924(c)(3)(B).
Although he recognizes that his argument is foreclosed by
precedent of the United States Court of Appeals for the Fifth
Circuit, he asserts that the United States Supreme Court
granted a petition for writ of certiorari to consider whether
18 U.S.C. § 16(b), which is similar to §
924(c)(3)(B), is unconstitutionally vague. See Lynch v.
Dimaya, 137 S.Ct. 31 (2016). He notes that there is a
circuit split on the issue of the vagueness of § 16(b).
Compare Golicov v. Lynch, 837 F.3d 1065, 1072 (10th
Cir. 2016) (“[h]aving carefully considered these
principles and precedents, we agree with the Sixth, Seventh,
and Ninth Circuits that 18 U.S.C. § 16(b) is not
meaningfully distinguishable from the ACCA's residual
clause and that, as a result, § 16(b), and by extension
8 U.S.C. § 1101(a)(43)(F), must be deemed
unconstitutionally vague in light of
Johnson”), with United States v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en
banc) (holding that § 16(b) is not unconstitutionally
Fifth Circuit has held that its decision in
Gonzalez-Longoria foreclosed argument that §
924(c)(3)(B) is unconstitutional in light of
Johnson, and that it is bound by that precedent even
though the Supreme Court has granted review in
Dimaya. United States v. Woodard, 697 F.
App'x 287, 288 (5th Cir. 2017). Petitioner's
objections regarding the timeliness of his § 2255 motion
based on whether Johnson applies to §
924(c)(3)(B) are overruled.
asks that this court withhold a ruling in his case until the
Supreme Court decides Dimaya. He alternatively asks
that his § 2255 motion be dismissed without prejudice so
that he may re-raise the issue if the Supreme Court holds in
Dimaya that the similarly worded § 16(b) is
unconstitutionally vague. Additionally, he requests a
certificate of appealability in light of the circuit split on
whether that statute, and by extension § 924(c)(3)(B),
is unconstitutionally vague.
request that the ruling in this case be withheld pending the
decision in Dimaya is also denied. The Fifth Circuit
has declined to stay a case involving the constitutionality
of § 16(b) pending the decision in Dimaya.
United States v. Ontiveros-Cedillo, 698 F. App'x
218, 219 (5th Cir. 2017). A dismissal with prejudice is
appropriate. If petitioner seeks to file a successive 28
U.S.C. § 2255 motion at some point in the future, he
must comply with the requirements 28 U.S.C. § 2244(b).
de novo review of those parts of the FCR to which
objections have been made shows that petitioner has failed to
demonstrate that the order is either clearly erroneous or is
contrary to law. See Fed. R. Civ. Proc. 72(a). His
objections are OVERRULED. The findings and
conclusions of the magistrate judge are correct, and they are
accepted as the findings and conclusions of the court.
reasons stated in the findings, conclusions and
recommendation of the United States Magistrate Judge, the
motion to vacate, set aside or correct sentence filed under
28 U.S.C. § 2255 is DENIED with
prejudice as barred by the statute of limitations.
accordance with Fed. R. App. P. 22(b) and 28 U.S.C. §
2253(c) and after considering the record in this case and the
recommendation of the magistrate judge, petitioner is
DENIED a certificate of appealability.
Although there is a circuit split on the issue of the
constitutionality of the language in § 924(c)(3)(B), the
Fifth Circuit has resolved the issue in this circuit and has
declined the opportunity to reconsider that decision in light
of the grant of certiorari review in Dimaya. The
court adopts and incorporates by reference the magistrate
judge's findings, conclusions and recommendation in
support of its finding that petitioner has failed to show (1)
that reasonable jurists would find this court's
“assessment of the constitutional claims debatable or
wrong, ” or (2) that reasonable jurists would find
“it debatable whether the petition states a valid claim
of the denial of a constitutional right” and
“debatable whether [this Court] was correct in its
procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
petitioner files a notice of appeal, he must pay the $505.00
appellate filing fee or submit a motion to proceed in
forma pauperis and a properly signed certificate of
inmate trust account.