United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER
Honorable Hilda Senior United States District Judge
Gonzalez filed a pro se Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241 in the Northern District
of Texas. That court construed the motion as a motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255 and transferred it to this Court-the Court in
which Gonzalez was sentenced. D.E. 3.
motion seeks relief from his 240 month minimum enhanced
sentence on the grounds that the United States did not give
him timely notice of the enhancement which was filed the
morning of trial and that his Texas drug conviction does not
qualify as a predicate enhancement under more recent cases,
Mathis v. United States, 136 S.Ct. 2243 (2016) and
Hinkle v. United States, 832 F.3d 569 (5th Cir.
was convicted after a jury trial in 2013 of possession with
intent to distribute approximately 1560.8 kilograms of
marijuana. 21 U.S.C. § 841(a)(1), 841(b)(1)(A). At the
time of his arrest, Gonzalez was on probation for a 2007
Texas conviction for marijuana possession. Because the
government filed a § 851 enhancement the morning of
trial, Gonzalez' minimum mandatory sentence was 20 years
based upon the enhancement. After a jury's verdict of
guilty, the district court imposed a sentence of 20 years as
required by law. The Fifth Circuit Court of Appeals
filed a § 2255 motion to vacate, set aside or correct
sentence in 2015 that raised one issue-ineffective assistance
of counsel. After a hearing, the Court denied Gonzalez'
motion in 2017. Gonzalez appealed. While his § 2255
denial was on appeal, Gonzalez filed a Rule 60(b) motion in
which he claimed that his state drug conviction no longer
qualified as a proper predicate offense under § 851 and
§ 851 is unconstitutional. This court did not reach the
merits of Gonzalez' motion because it was a second or
successive § 2255 claim and Gonzalez had not obtained
permission to file it. Gonzalez' appeal of the denial of
his § 2255 is still pending before the Fifth Circuit
Court of Appeals.
present motion does not challenge the administration of his
sentence, nor does he raise an issue that can be addressed
under § 2255(e)'s savings clause. A petition filed
under § 2241 that raises errors that occurred at or
prior to sentencing should be construed as a § 2255
motion unless a petitioner shows that the remedy provided
under § 2255 is inadequate or ineffective to test the
legality of his detention in which case the motion may be
brought under § 2241. Robinson v. United
States, 812 F.3d 476, 476-77 (5th Cir. 2016). Gonzalez'
issues may be raised in a second § 2255 motion if he
obtains the Fifth Circuit's permission to file a second
or successive motion. Gonzalez already raised the some of his
present grounds in the Rule 60(b) motion, although he did not
appeal from the Court's construction of that motion as
second or successive.
is entitled to a single § 2255 motion unless he obtains
the permission of the Fifth Circuit Court of Appeals to file
a second motion. See Gonzalez, 545 U.S. at 531;
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.
2000); 28 U.S.C. § 2244 (b)(3)(A) ("Before a second
or successive application permitted by this section is filed
in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.")-
Gonzalez' motion does not indicate that he has sought or
obtained such permission. Without permission from the Fifth
Circuit, this Court does not have the power to adjudicate his
appeal may not be taken to the court of appeals from a final
order in a habeas corpus proceeding "unless a circuit
justice or judge issues a certificate of appealability."
28 U.S.C. § 2253(c)(1)(B). Although Gonzalez' has
not yet filed a notice of appeal, the § 2255 Rules
instruct this Court to "issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11, § 2255 Rules.
Certificate of Appealability (COA) "may issue. . . only
if the applicant has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2).
"The COA determination under § 2253(c) requires an
overview of the claims in the habeas petition and a general
assessment of their merits." Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). To warrant a grant
of the certificate as to claims denied on their merits,
"[t]he petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong." Slack v.
McDaniel, 529 U.S. 473, 484 (2000). This standard
requires a § 2255 movant to demonstrate that reasonable
jurists could debate whether the motion should have been
resolved differently, or that the issues presented deserved
encouragement to proceed further. United States v.
Jones, 287 F.3d 325, 329 (5th Cir. 2002) (relying upon
Slack, 529 U.S. at 483-84).
claims that the district court rejects solely on procedural
grounds, the movant must show both that "jurists of
reasons would find it debatable whether the petition states a
valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling." Slack, 529 U.S. at 484 (emphasis
on the above standards, the Court concludes that Gonzalez is
not entitled to a Certificate of Appealability on any of his
claims. Reasonable jurists could not debate the Court's
resolution of his claims, nor do these issues ...