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Guevara v. United States

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

March 12, 2018

RONALD GUEVARA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Ignacio Torteya III United States Magistrate Judge

         The Court is in receipt of Ronald Guevara's pro se “Motion Pursuant to 28 U.S.C. § 2255” (hereinafter, Guevara's “Motion” or “§ 2255 Motion”). Dkt. No. 1. The Government has filed a “Response and Motion to Dismiss” (hereinafter, the Government's “Motion” or “Motion to Dismiss”), which argues that Guevara's claims are barred and meritless. Dkt. No. 9 at 18-22. Subsequent to the filing of the Government's Motion, Guevara filed six additional submissions. Dkt. No. 10, Dkt. No. 11, Dkt. No. 12, Dkt. No. 14, Dkt. No. 14-1, Dkt. No. 14-2. These latter submissions are all attempts to assert a claim based upon the new rule of law announced by the Supreme Court in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015). Id. For the reasons provided below, it is recommended that the Court construe these latter submissions as amendments to Guevara's § 2255 Motion. Additionally, it is recommended that the Court: (1) DISMISS Guevara's § 2255 Motion, as amended; and (2) DECLINE to issue a certificate of appealability.

         I. Jurisdiction

         This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and § 2255.

         II. Background and Procedural History

         On September 24, 2013, Guevara pleaded guilty to one count of being an alien found unlawfully in the United States after deportation, having been previously convicted of a felony, in violation of 8 U.S.C. § 1326(a) and § 1326(b)(1). United States v. Guevara, No. 1:13-cr-00652-1, Dkt. No. 42 at 1.[1] After pleading guilty, Guevara filed a motion to substitute counsel, seeking to replace attorney Reynaldo G. Garza, III, with attorney Larry L. Warner. CR Dkt. No. 25. The Court granted Guevara's motion. CR Dkt. No. 27. On February 3, 2014, the Court sentenced Guevara to 57 months of imprisonment. CR Dkt. No. 42 at 2. Judgment was entered on February 14, 2014. Id. at 1.

         Guevara filed a Notice of Appeal on February 11, 2014. CR Dkt. No. 35. On November 03, 2014, the Court of Appeals for the Fifth Circuit affirmed Guevara's conviction and sentence in an unpublished opinion. CR. Dkt. No. 58; United States v. Guevara, 583 Fed.Appx. 412 (5th Cir. 2014). Guevara did not file a petition for certiorari with the United States Supreme Court. Dkt. No. 11 at 2.[2] Guevara filed his instant § 2255 Motion on May 1, 2015, asserting claims of trial court error and ineffective assistance of counsel. Dkt. No. 1 at 2-3.[3] On July 19, 2015, the Government filed its Motion to Dismiss, arguing that Guevara's claims are barred and meritless. Dkt. No. 9 at 2, 18-22.

         Subsequent to the filing of the Government's Motion, Guevara filed six additional submissions. Dkt. No. 10, Dkt. No. 11, Dkt. No. 12, Dkt. No. 14, Dkt. No. 14-1, Dkt. No. 14-2. In these submissions, Guevara attempts to assert a claim based upon the new rule of law announced by the Supreme Court in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015). Id. Guevara additionally filed a motion with the Court of Appeals, seeking permission to file a successive § 2255 motion on the grounds that the rule announced in Johnson v. United States provided him with a new claim. See Dkt. No. 13 at 1 (referencing Guevara's motion). The Court of Appeals denied Guevara's motion as premature because his initial § 2255 Motion was still pending before this Court. Id. at 2. The Court of Appeals then directed its Clerk to transfer Guevara's motion to this Court “for consideration in conjunction with his [initial] § 2255 motion.” Id. The Clerk transferred Guevara's motion and supporting submissions to this Court. See Dkt. No. 14, Dkt. No. 14-1, Dkt. No. 14-2. Thus, the following submissions are pending before the Court:

1. Guevara's initial § 2255 Motion. Dkt. No. 1.
2. The Government's Motion to Dismiss. Dkt. No. 9.
3. Guevara's “Application for Leave to File a Second or Successive Motion to Vacate, Set Aside or Correct Sentence 28 U.S.C. § 2255 by a Prisoner in Fewderal Custody” (hereinafter, Guevara's “First Application for Leave”). Dkt. No. 10 (errors in original).
4. Guevara's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (hereinafter, Guevara's “Second 2255 Motion”). Dkt. No. 11.
5. Guevara's “Memorandum in Support § 2255 Motion” (hereinafter, Guevara's “First Memorandum in Support”). Dkt. No. 12.
6. Guevara's “Application for Leave to Re-File a Second or Successive Motion to Vacate, Set Aside or Correct Sentence Under 28 USC § 2255 by a Prisoner in Federal Custody” (hereinafter, Guevara's “Second Application for Leave”). Dkt. No. 14.
7. Guevara's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (hereinafter, Guevara's “Third 2255 Motion”). Dkt. No. 14-1.
8. Guevara's “Memorandum in Support § 2255 Motion” (hereinafter, Guevara's “Second Memorandum in Support”). Dkt. No. 14-2.

         Guevara's Third 2255 Motion is identical to his Second 2255 Motion. Compare Dkt. No. 14-1, with Dkt. No. 11. But for the addition of a few pages of text, Guevara's Second Memorandum in Support is identical to his First Memorandum in Support. Compare Dkt. No. 14-2, with Dkt. No. 12. Finally, but for the addition of an introductory paragraph, Guevara's Second Application for Leave is identical to his First Application for Leave. Compare Dkt. No. 14, with Dkt. No. 10. Substantively, then, the arguments Guevara has presented to the Court are all contained within his § 2255 Motion, his Second 2255 Motion, his Second Memorandum in Support, and his Second Application for Leave. See Dkt. No. 1, Dkt. No. 11, Dkt. No. 14, Dkt. No. 14-2.

         As noted above, Guevara's Second Application for Leave, Second 2255 Motion, and Second Memorandum in Support all attempt to assert a claim based upon the new rule of law announced by the Supreme Court in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015). See Dkt. No. 11, Dkt. No. 14, Dkt. No. 14-2. More specifically, Guevara's Second Application for Leave, Second 2255 Motion, and Second Memorandum in Support all argue that the trial court enhanced his sentence pursuant to a provision containing a crime-of-violence definition that the Johnson Court later found to be unconstitutionally vague. Id. Because the Supreme Court has held that Johnson applies retroactively, Guevara contends that he is entitled to be resentenced without the enhancement. Dkt. No. 11 at 4, 10, 12; Dkt. No. 14 at 1-2; Dkt. No. 14-2 at 1-2, 7.

         In his § 2255 Motion, Guevara purports to raise five claims. See Dkt. No. 1 at 2-3. Two of these claims allege that the trial court erred in issuing his sentence. Id. at 3. He states that the Court erred in overruling his “objections to the judge's consideration in setting sentence ‘prior' to resolution of the alleged criminal charges that were ultimately dismissed, vacated, no-billed due to actual innocence.” Id. (errors and emphasis in original). Additionally, he claims that the Court erred in “[a]ppearing to have had a ‘tainted' perception towards Mr. Guevara: because of those alleged pending offenses against him that were involved in the judges sentencing making process when he was applying the 3553(a) sentencing factors.” Id. (errors in original). Guevara's remaining claims assert that he received ineffective assistance of counsel prior to pleading guilty and on appeal. Id. at 2.

         On January 25, 2018, the Court issued an Order and Notice. Dkt. No. 15. This Order and Notice informed Guevara of the possibility that the Court would apply Rule 56 of the Federal Rules of Civil Procedure to his claims and informed him of his burden under the Rule. Id. at 1-2 (citing Fed.R.Civ.P. 56). In relevant part, this Order and Notice also provided as follows:

Guevara is NOTIFIED that, to the extent that he wishes to provide evidence or any additional facts or argument in support of his § 2255 claims, he must do so on or before March 1, 2018. Additionally, Guevara is ORDERED to provide the Court with his current address on or before March 1, 2018, as the Bureau of Prisons' Inmate Locator reveals that Guevara was released from the Bureau of Prisons' custody on September 8, 2017. See https://www.bop.gov/inmateloc/ (last visited on January 25, 2018). Guevara is NOTIFIED that if he fails to comply with this Order, his case will be subject to dismissal with prejudice pursuant to Federal Rule of Civil Procedure 41(b). See Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.”).

Id. at 2-3. As of this twelfth day of March, 2018, Guevara has not updated his address, or otherwise provided the Court with any new information or evidence in ...


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