United States District Court, S.D. Texas, Laredo Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
Sheldon United States Magistrate Judge
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.)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.
Background A. Petitioner's Conviction
and First § 2255 Motion
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
[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.)
The Successive Motion
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  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).
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.)
Petitioner's Release from Custody and His Failure to
Update His Mailing Address
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.)
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.)
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, ...