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Vargas-Guzman v. United States

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

April 18, 2019



          Sam S. Sheldon United States Magistrate Judge

         Petitioner Junior Rafael Vargas-Guzman, pro se, filed a Second/Successive § 2255 Motion challenging his conviction and 40-month sentence for illegal re-entry of a deported alien in violation of 8 U.S.C. §§ 1326(a) and 1326 (b)(2). ("Motion," Dkt. No. 1, Cr. Dkt. No. 73.)[1]The District Court has referred this matter to the undersigned United States Magistrate Judge. (Dkt. No. 8.) Now before the Court is the United States' Motion to Dismiss in which it is moving to dismiss the Motion due to lack of prosecution. (Dkt. No. 24.) Pursuant to 28 U.S.C. § 636(b)(1)(B), the Magistrate Judge respectfully submits this Report and Recommendation recommending that the Court GRANT Respondent's Motion to Dismiss, DENY Petitioner's Motion, and DISMISS this civil action without prejudice.

         I. Background A. Petitioner's Conviction and First § 2255 Motion

         On February 10, 2016, this Court sentenced Petitioner to 40 months' imprisonment after he pled guilty to a single count for illegal re-entry after prior deportation in violation of 8 U.S.C. § 1326. (Cr. Dkt. No. 36.) The Court previously summarized the circumstances of Petitioner's underlying criminal action and his subsequent appeal:

[Petitioner], a Dominican citizen, was once a legal permanent resident living in New York. He was deported in 2012 after three New York felony convictions, including second-degree robbery. Following deportation, he illegally re-entered the United States and was arrested in Laredo, Texas. On September 30, 2015, he was indicted for illegal re-entry following deportation. He pled guilty one month later. In December 2015, he filed a "Motion for Ineffective Assistance of Counsel" and a "Motion to Withdraw Plea of Guilty," claiming his attorney should have filed certain motions, should have provided him with certain documents, and should have collaterally attacked Defendant's prior deportation. The Court denied these motions, finding that [Petitioner] knowingly and voluntarily pled guilty to illegal re-entry following deportation and did not show sufficient likelihood of success if he were allowed to withdraw his guilty plea to collaterally attack his deportation. In January 2016, [Petitioner] moved again to dismiss his lawyer from this case, which the Court again denied.
The Court originally scheduled sentencing for January 22, 2016, but granted a continuance to allow [Petitioner] to review certain evidence. On February 10, 2016, [Petitioner] was sentenced to 40 months' imprisonment. [Petitioner] appealed the Court's denial of his Motion to Withdraw Guilty Plea. The Fifth Circuit affirmed the Court's judgment, finding that [Petitioner] failed to show "that he likely could have mounted a successful collateral attack on his deportation proceeding." United States v. Vargas-Guzman, 676 Fed.Appx. 370, 371 (5th Cir. 2017).

(Cr. Dkt. No. 62 at 1-2 (internal citations omitted).) Following his unsuccessful appeal, Petitioner filed his first § 2255 motion premised on four interrelated claims: (1) ineffective assistance of appellate counsel; (2) his New York robbery conviction was not a crime of violence; (3) ineffective assistance of counsel before the Board of Immigration Appeals; and (4) lack of subject matter jurisdiction. (Cr. Dkt. No. 60.) The Court subsequently denied this motion. (Cr. Dkt. No. 62.)

         B. The Successive Motion

         After obtaining consent from the Fifth Circuit Court of Appeals to file a successive § 2255 motion, Petitioner filed the instant Motion, which requests reconsideration of his conviction and sentence in light of a new constitutional rule created in Sessions v. Dimaya, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). (Dkt. No. 1, Dkt. No. 1-1.) "In Dimaya, the Supreme Court held that the definition of a 'crime of violence,' found at [18] U.S.C. § 16(b), was unconstitutionally vague as applied and incorporated into the immigration law." Melendez-Jimenez v. U.S., No. CR B:15-168-l, 2018 WL 3720064, at *5 (S.D. Tex. July 11, 2018), report and recommendation adopted, No. 1:15-CR-168-1, 2018 WL 3708503 (S.D. Tex. Aug. 3, 2018) (citing Dimaya, 138 S.Ct. at 1223).

         Petitioner argues that his prior deportation order was unlawfully premised on a finding, under 18 U.S.C. § 16(b), that his New York state conviction for attempted robbery was a "crime of violence." (Dkt. No. 6 at 3-7.) Therefore, Petitioner asserts that his conviction for illegal reentry following deportation must be reversed as it now lacks the requisite predicate prior deportation. (Id. at 7.) Petitioner further contends that the holding in Dimaya renders unlawful the 16-level sentencing enhancement he received (based on his prior robbery conviction, a "crime of violence"). (Id. at 3, Cr. Dkt. No. 26 at 5-6.)

         C. Petitioner's Release from Custody and His Failure to Update His Mailing Address

         After filing his successive Motion, Petitioner was subsequently released from prison on August 6, 2018. (Dkt. No. 24, Exh. A.) On August 12, 2018, Petitioner then filed a Notice of Change of Address requesting the Court serve him at the LaSalle ICE Processing Center in Trout, Louisiana. (Dkt. No. 7.) However, despite Petitioner filing a change of address form, the District Clerk continued to send mail to Petitioner's former address rather than his new address at the LaSalle ICE Processing Center. (Dkt. No. 25.) Upon discovery of this error, the undersigned ordered the District Clerk to send previously undelivered filings to Petitioner's last known address at the LaSalle ICE Processing Center to effectuate adequate service. (Id.) All of these filings were sent to the LaSalle ICE Processing Center but were returned to the District Clerk as undeliverable. (Dkt. No. 27.)

         On October 23, 2018, the undersigned ordered the United States to respond to the Motion. (Dkt. No. 11.) In this Order, the undersigned further instructed Petitioner to update the District Clerk of any change to his mailing address and that a failure to do so may result in dismissal due to his failure to prosecute. (Id.)

         Since filing the Change of Address, however, Petitioner can no longer be reached at LaSalle ICE Processing Center. See Online Detainee Locator System, U.S. Immigration and Customs Enforcement, ...

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