United States District Court, E.D. Texas, Tyler Division
MEMORANDUM OPINION ADOPTING THE REPORT OF THE UNITED
STATES MAGISTRATE JUDGE
Clark, Senior District Judge.
Clifford Ray Ward, proceeding pro se, an inmate
confined at the Federal Penitentiary in Texarkana, Texas,
filed this motion to vacate, set aside, or correct his
sentence under section 2255. The case was referred to the
United States Magistrate Judge, the Honorable Judge K. Nicole
Mitchell, for findings of law, conclusions, and
recommendations for the disposition of the case.
in federal custody pursuant to a conviction for the offense
of conspiracy to possess with the intent to distribute
cocaine base, in violation of 21 U.S.C. § 846. On
January 23, 2013, Ward pleaded guilty pursuant to a
negotiated plea agreement. According to his final Presentence
Investigation Report, (PSR), Ward qualified as a career
offender under the United States Sentencing
Guidelines-particularly given his multiple, previous Texas
convictions for possession with the intent to deliver.
Pursuant to the plea agreement, on April 16, 2013, the Court
sentenced Ward to 144 months' imprisonment, or twelve
years. Ward did not file a direct appeal. He filed this
section 2255 motion on November 30, 2016.
Ward's Federal Claims
motion, Ward maintained that, under Mathis v. United
States, 136 S.Ct. 2243, 2248-57 (2016), and United
States v. Hinkle, 832 F.3d 569, 572-77 (5th Cir. 2016),
his previous Texas convictions for possession of cocaine,
with intent to deliver, did not qualify as “controlled
substance offenses.” He contended that he cannot be
classified as a career offender under the sentencing
guidelines because his convictions are not considered drug
trafficking crimes. In response, (Dkt. #9), the Government
argued Ward's motion is untimely and that Mathis
and Hinkle do not apply retroactively on collateral
review. Ward filed a reply to the Government's response,
contending that the Government has essentially conceded,
review of the pleadings, the Magistrate Judge issued a
Report, (Dkt. #14), recommending that Movant's motion be
dismissed, with prejudice, as untimely. Judge Mitchell also
recommended that Movant be denied a certificate of
appealability sua sponte. Specifically, Judge
Mitchell found that neither Mathis nor
Hinkle applies to his case because Mathis
did not create a new constitutional right and, crucially, the
United States Supreme Court did not explicitly hold that
Mathis applied retroactively. See Sharbutt v.
Vasquez, 749 Fed.Appx. 307, 308 (5th Cir. 2019) (Mem)
(“Moreover, Mathis does not apply
Mitchell explained that the Fifth Circuit specifically found
that Mathis does not set forth a new rule of
constitutional law that was made to apply retroactively to
collateral proceedings. See In re Lott, 838 F.3d
522, 523 (5th Cir. 2016) (per curiam) (denying successive
application under 28 U.S.C. § 2255(h) because
Mathis did not set forth a new rule of
constitutional law that has been made retroactive on
collateral review); see also Thompson v. United
States, 2017 WL 1629141, slip. op. at *2 (N.D. Tex. Apr.
13, 2017) (“However, Mathis did not announce a
new rule of constitutional law that has been made retroactive
to cases on collateral review.”).
Hinkle did not create a new constitutional right and
is not a Supreme Court opinion. See Unites States v.
Bermea, 2017 WL 821787, slip. op. at *2 (S.D. Tex. Mar.
2, 2017) (Although Hinkle changed the interpretation
of the effect of a particular type of conviction, it did not
write a new law and is not a retroactively applicable Supreme
objection, Movant argues that the procedural bar should not
apply and that his prior drug offenses would not qualify as
serious drug offenses. Movant maintains that both
Mathis and Hinkle were decided after the
time for which relief could be afforded, so he could not have
anticipated a change. He then repeats the legal language
surrounding the Fifth Circuit's opinion in
Hinkle. Movant then suggests that the Court
“extend” justice “to give [effect] to what
is now assumed good law.” (Dkt. # 18, pg. 2). This
assertion suggests that Movant is urging this Court to ignore
the federal precedent concerning retroactivity on collateral
review. Movant asks the Court to look beyond the
“retroactive effect, ” because he “is
definitely entitled to relief.”
objections must be overruled. As explained in her Report,
Judge Mitchell highlighted how an otherwise untimely section
2255 motion, based on a new constitutional right, may be
filed within one year from “the date on which the right
asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review.” See 28 U.S.C. § 2255(f)(3).
However, this exception does not extend to rights that have
not been made retroactive to cases on collateral review-such
as Movant's section 2255 motion. See, e.g.,
U.S. v. Williams, 402 Fed.App'x 945 (5th Cir.
Court understands that both Mathis and
Hinkle were decided after Movant was convicted and
sentenced. Nonetheless, because neither case was held to
apply retroactively, this Court cannot grant Movant relief.
To do so would ignore both Supreme Court and Fifth Circuit
precedent-precedent that is binding on this Court. See
Tyler v. Cain, 533 U.S. 656, 663 (2001) (“Quite
significantly, under this provision, the Supreme Court is the
only entity that can make a new rule retroactive. The new
rule becomes retroactive, not by the decisions of the
lower court or by the combined action of the Supreme
Court and the lower courts, but simply by the action of the
Supreme Court.”) (internal quotation omitted) (emphasis
added). Accordingly, Movant's objections must be
the Supreme Court held that the sentencing guidelines were
not subject to challenge for vagueness under the Due Process
Clause. Beckles v. U.S., 137 S.Ct. 886, 894 (2017).
The Fifth Circuit has thus routinely cited Beckles
in rejecting constitutional vagueness challenges to the
sentencing guidelines. United States v. Osorio, 734
Fed.Appx. 922, 924 (5th Cir. 2018); United States v.
Gonzales, 714 Fed.Appx. 367, 370 (5th Cir. 2017);
United States v. Rodriguez-Lopez, 697 Fed.Appx. 304,
305 (5th Cir. 2017). Here, given that Movant's PSR shows
that the sentencing guidelines were used to find that he is a
career offender, Movant's claims further lack merit.
Court has conducted a careful de novo review of the
record and the Magistrate Judge's proposed findings and
recommendations. See 28 U.S.C. §636(b)(1)
(District Judge shall “make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”). Upon such de novo review, the Court
has determined that the Report ...