United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Based on the relevant findings and applicable
law, the amended Motion Under 28 U.S.C. § 2255,
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (doc. 4) should be
DENIED with prejudice as barred by the
statute of limitations.
Silva (Movant) challenges his federal conviction and sentence
in Cause No. 3:14-CR-261-P. The respondent is the United
States of America (Government).
was convicted of conspiracy to distribute a controlled
substance in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(C) (Count One) and felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (Count Two). By judgment entered on April 6, 2015,
he was sentenced to 128 months' imprisonment for Count
One and 120 months' imprisonment for Count Two, with the
sentences to be served concurrently. (See doc. 80 at
He did not appeal.
initial § 2255 motion, signed on June 27, 2016, was
received on July 7, 2016. (See No. 3:16-CV-1987-G,
doc. 2 at 1.) It alleged that the residual clause of a career
offender sentencing guideline that increased his offense
level was unconstitutionally vague in light of Johnson v.
United States, 135 S.Ct. 2551 (2015).
STATUTE OF LIMITATIONS
2255 of Title 28 “establishes a ‘1-year period of
limitation' within which a federal prisoner may file a
motion to vacate, set aside, or correct his sentence under
that section.” Dodd v. United States, 545 U.S.
353, 356 (2005). It states that:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the