United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER
MELINDA HARMON, UNITED STATES DISTRICT JUDGE.
before the Court in the above referenced proceeding is Movant
David Wilson Holiday's § 2255 Motion to Vacate, Set
Aside or Correct Sentence (Doc. 177); the Government's
Motion to Dismiss (Doc. 183); and Magistrate Judge
Stacy's Memorandum and Recommendation that the Court deny
the § 2255 Motion and grant the United States'
Motion to Dismiss (Doc. 189). Movant filed objections to the
Memorandum and Recommendation. (Doc. 190).
timely filed within fourteen days of entry of the United
States magistrate judge's memorandum and recommendation
must specifically identify the findings or recommendations
for which the party seeks reconsideration. 28 U.S.C. §
636(b)(1)(C); Fed.R.Civ.P. 72(b); Fed. R. Crim. P. 59(b)(2);
United States v. Moreno, No. CR H-03-235, 2017 WL
635503, at *2 (S.D. Tex. Feb. 16, 2017) (citing Thomas v.
Arn, 474 U.S. 140, 155 (1985)). The court does not have
to consider “frivolous, conclusive, or general
objections.” Moreno, 2017 WL 635503, at *2
(citing Battle v. U.S. Parole Comm'n, 834 F.2d
419, 421 (5th Cir. 1987) (per curiam)). Findings by the
magistrate judge to which the party specifically objects must
be reviewed de novo under 28 U.S.C. §
636(b)(1)(C). See United States v. Wilson, 864 F.2d
1219, 1221 (5th Cir. 1989) (per curiam).
the Movant untimely filed objections or did not specifically
object to findings of the magistrate judge, after a warning,
the Court will review the memorandum and recommendation only
to decide whether the memorandum and recommendation is
clearly erroneous or contrary to law. Gamez v. United
States, No. SA-06-CR-401-XR, 2014 WL 2114043, at *2
(W.D. Tex. May 20, 2014) (citing Wilson, 864 F.2d at
1221); see Quinn v. Guerrero, 863 F.3d 353, 358 (5th
Cir. 2017) (holding that where a party was advised that he
must timely file objections, and he did not timely file
objections, that he is entitled only to plain error review of
the magistrate judge's recommendation). The district
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C).
defendant has been convicted and has exhausted or waived his
right to appeal, a Court may presume that he “stands
fairly and finally convicted.” United States v.
Willis, 273 F.3d 592, 595 (5th Cir. 2001). Therefore
relief under § 2255 is limited to “transgressions
of constitutional rights and for a narrow range of injuries
that could not have been raised on direct appeal and would,
if condoned, result in a complete miscarriage of
justice.” United States v. Gaudet, 81 F.3d
585, 589 (5th Cir. 1996). The court's ability to reduce
or modify a sentence of imprisonment once it has been imposed
is restricted. United States v. Lopez, 26 F.3d 512,
515 (5th Cir. 1994) (per curiam). There are four grounds on
which a defendant may move to vacate, set aside, or correct
his sentence under § 2255: (1) “the sentence was
imposed in violation of the Constitution or laws of the
United States”; (2) “the [district] court was
without jurisdiction to impose such sentence”; (3)
“the sentence was in excess of the maximum authorized
by law”; and (4) the sentence was “otherwise
subject to collateral attack.” 28 U.S.C. §
2255(a). “A defendant can challenge his conviction
after it is presumed final only on issues of constitutional
or jurisdictional magnitude . . . and may not raise an issue
for the first time on collateral review without showing both
‘cause' for his procedural default and
‘actual prejudice' resulting from the error.”
United States v. Shaid, 937 F.2d 228, 232 (5th Cir.
1991) (citations omitted).
Court has carefully reviewed the filings, the Magistrate
Judge's Memorandum and Recommendation, and the applicable
law and finds the portion of the Memorandum and
Recommendation not specifically challenged by movant is not
erroneous in its factual findings nor contrary to law.
Accordingly, the Court hereby adopts the Magistrate
Judge's Memorandum and Recommendation as its own.
the Magistrate Judge's Memorandum and Recommendation
contained a warning about the consequences of failing to
object in writing. Despite the warning, the Movant filed his
objections late. Therefore, the objections need not be
considered de novo.
Magistrate Judge found that Movant's § 2255 Motion
is subject to dismissal because it is time-barred, none of
the alternative dates for commencement of the limitations
period apply, and Movant has not shown that the limitations
period should be equitably tolled. The Court agrees.
filed objections to the finding that his claim is
time-barred. Though his objections were filed past the
deadline set by the Magistrate Judge, the Court will still
consider and respond to them here. Holiday contends that the
Supreme Court cases Johnson v. United States, 135
S.Ct. 2251 (2015) and Welch v. United States, 136
S.Ct. 1257 (2016) render his sentence unconstitutional and
justify tolling the statute of limitations. Specifically, he
argues that these cases, along with United States v.
Garcia, No. 16-10863 (5th Cir. May 23, 2017), show that
the Court wrongly added a six-level enhancement to his
offense pursuant to U.S.S.G. § 2B3.1(b)(2)(B).
sentencing guideline states that if a firearm was used (but
not discharged) in an offense, a six-level increase in the
offense level is appropriate. U.S.S.G. § 2B3.1(b)(2)(B).
Thus, because Holiday's co-defendants, Stanley Snowmen
and Alvin Snowmen, used firearms in the offense,
Holiday's offense level was increased by six levels.
Holiday contends that this increase was premised on his
co-defendants' violation of 18 U.S.C. § 924(c), a
statute which Holiday argues is unconstitutionally vague.
Since, according to Holiday, 18 U.S.C. § 924(c) is
unconstitutionally vague, his sentence, which he argues was
based indirectly off of he co-defendants' violation of
§ 924(c), is improper and should be reduced.
argument fails for two reasons. First, an increase in offense
level under U.S.S.G. § 2B3.1(b)(2)(B) is not necessarily
premised on a finding of a violation of 18 U.S.C. §
924(c). Even if 18 U.S.C. § 924(c) was found to be
unconstitutionally vague, it does not mean that a sentence
calculated in light of U.S.S.G. § 2B3.1(b)(2)(B) would
be unconstitutional. Second and relatedly, the Supreme Court
recently held that any enhancement made to a sentence
pursuant to the Sentencing Guidelines does not invoke the
void-for-vagueness doctrine or implicate Holiday's due
process rights. See Beckles v United States, 137
S.Ct. 886, 892 (2017).
under 28 U.S.C. § 2253(c)(1)(B), “Unless a circuit
justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from . . .
the final order in a proceeding under section 2255.”
See also Fed. R. App. P. 22(b)(1) (“In a
habeas corpus proceeding in which the detention complained of
arises from . . . a 28 U.S.C. § 2255 proceeding, the
applicant cannot take an appeal unless a ...