United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE
Russell James Longoria filed a “Motion to Stay, Hold,
Abeyance, Until Pending Case Has Been Resolved Under
Michael Herrold v. United States, 137 S.Ct. 310
(2016)” (D.E. 58). The Court construes the motion as a
request to open a § 2255 motion and hold it open until
the Supreme Court decides Herrold. The Court
concludes that it is not necessary to order a government
response because “it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” Rule
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts (§ 2255 Rules) (2018). For
the reasons stated herein, the Court dismisses Longoria's
motion because the Court lacks jurisdiction over the motion
and denies him a certificate of appealability.
was sentenced in 2013 to 188 months in the Bureau of Prisons
as an Armed Career Criminal after he was convicted of being a
felon in possession of a firearm. He did not appeal, but
filed a motion to vacate, set aside, or correct sentence in
which he challenged the use of his previous convictions (two
of which were Texas burglaries) as predicate offenses for
enhanced sentencing and claimed his counsel was ineffective.
D.E. 33, 36. After a hearing, the Court denied the motion and
entered final judgment on November 24, 2015. D.E. 53, 54. He
filed a second § 2255 after Johnson v. United
States, 135 S.Ct. 2551 (2015). The Court transferred his
motion to the Fifth Circuit as second or successive, but the
Fifth Circuit declined to grant him a certificate of
appealability. In his present filing, Longoria quotes from
what appears to be an Order on a petition he filed with the
United States Supreme Court, but this Court has not been able
to determine that he filed a petition for certiorari or any
now seeks relief based upon the recent en banc
decision of the Fifth Circuit Court of Appeals in Herrold
v. United States, 883 F.3d 517 (5th Cir. 2018), which
held that Texas burglary does not constitute generic burglary
and Texas burglary convictions no longer qualify as predicate
offenses pursuant to the Armed Career Criminal Act. A
petition for writ of certiorari in Herrold was filed
in April 2018 by the Solicitor General of the United States,
but has not yet been ruled on. United Sates v.
Herrold, No. 17-1445.
Longoria's present motion was filed after a previous
§ 2255 motion, his current motion is a second or
successive motion. In pertinent part, 28 U.S.C. §
second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals
to contain -
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h).
claim is second or successive, the movant is required to
seek, and acquire, the approval of the Fifth Circuit before
filing a second § 2255 motion before this Court. See
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.”).
motion does not indicate that he has sought or obtained
permission from the Fifth Circuit to file the present motion.
Until he does so, this Court does not have jurisdiction over
the motion. Accordingly, Longoria's motion is denied as a
second or successive § 2255 motion. See United
States v. Orozco-Ramirez, 211 F.3d 862, 869 (5th Cir.
2000) (district court properly dismissed second or successive