United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE
Pedro Herrera Gomez, a former federal prisoner, filed a
pro se motion to vacate, set-aside, or correct
sentence under 28 U.S.C. § 2255. The District Court
referred the resulting civil action to the United States
magistrate judge pursuant to 28 U.S.C. § 636(b) and a
standing order of reference. For the following reasons, the
Court should dismiss the motion for lack of jurisdiction.
11, 2010, Gomez was sentenced to 93 months' imprisonment
and five years' supervised release for conspiring to
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846. (See Crim. Doc. 17 at
He began serving his term of supervised release on November
9, 2015. (See Id.). In August 2017, his
supervised-release jurisdiction transferred to the United
States District Court for the Northern District of Texas.
(See Crim. Docs. 1, 2). In November 2017,
Gomez's probation officer filed a Petition for Offender
under Supervision, (Crim. Doc. 4), stating that Gomez had
been arrested in May 2017, for possession of heroin.
(Id. at 2.). The petition also stated that Gomez
failed to attend substance-abuse treatment, to submit
required urine samples and monthly reports, and to meet with
or contact his probation officer. (Id. at 2-3). The
petition found that Gomez's violations were Grade C
violations, which, coupled with his criminal history category
of V, produced a Chapter 7 policy-statement range of seven to
13 months' imprisonment upon revocation of supervised
release, pursuant to the U.S. Sentencing Guidelines Manual
(U.S.S.G.). (Id. at 4).
December 2017, Gomez's probation officer filed an
addendum to the petition, noting that the previous petition
“reflected a Violation Grade C in error, ” and
that the correct grade was Grade B. (CR No. 17), which,
combined with the criminal history category of V, increased
his policy-statement imprisonment range to 18 to 24 months.
revocation hearing, the Court found “by a preponderance
of the evidence that the allegations contained in the
petition . . . [were] true, accepting them and understanding
that he has made a no contest plea as to the heroin
possession.” (Crim. Doc. 25 at 6-7.) The Court then
revoked Gomez's supervised release and sentenced him to
18 months' imprisonment with no additional
supervised-release term. (Id. at 29; Crim. Doc. 20).
Gomez did not file a direct appeal. (See Doc. 4 at
April 23, 2018, the Court received Gomez's timely-filed
amended § 2255 motion. (Doc. 4). In his motion, Gomez
argues that upon revocation of his supervised release, the
Court incorrectly calculated his sentencing guideline range.
(See id. at 7). The government filed a response
arguing Gomez's claim lacks merit. (Doc. 7). Gomez did
not file a reply.
§ 2255 motion is a petition for relief from a conviction
or sentence made by a prisoner under a federal sentence. Once
a person has served his federal sentence, he is no longer
“in custody” for purposes of § 2255. See
United States v. Esogbue, 357 F.3d 532, 534 (5th Cir.
2004). “The Supreme Court has held that a movant is not
‘in custody' under a conviction for the purpose of
§ 2254 relief where the sentence imposed for that
conviction has fully expired.” Id. (citing
Maleng v. Cook, 490 U.S. 488, 490-91 (1989). This
analysis “applies equally when a movant is no longer in
federal custody for the purpose of § 2255 relief where
the sentence imposed for that conviction has expired.”
Esogbue, 357 F.3d at 534 (citing Custis v.
United States, 511 U.S. 485, 497 (1994)).
an applicant need not be in actual physical custody to pursue
a habeas action, there must be some type of restraint on the
liberty of a person.” Mertan v. Holder, 667
F.3d 538, 539 (5th Cir. 2011) (citing Jones v.
Cunningham, 371 U.S. 236, 238-40 (1963). If a movant has
been released from federal prison, a federal court maintains
jurisdiction over his § 2255 motion if the movant
remains subject to a term of supervised release. See
United States v. Bejarano, 751 F.3d 280, 285 n.4 (5th
Cir. 2014). If, however, a movant has completed his sentence
of imprisonment, and he has no further term of imprisonment
or supervised release to serve, his § 2255 motion is
moot. See Spencer v. Kemna, 523 U.S. 1, 7 (1998).
review of the Federal Bureau of Prisons' website shows
that Gomez has been released from prison, following his
revocation of supervised release, (see
https://www.bop.gov/inmateloc/, search by BOP Register No.
15940-078)), and he is not subject to any additional term of
supervised release. (See Crim. Doc. 20 at 2).
Further, Gomez has not identified, nor is the Court aware of,
any present restraint on his liberty. Thus, Gomez is no
longer in federal custody, and the Court lacks jurisdiction
to review his § 2255 motion. See Spencer, 523
U.S. at 7; Esogbue, 357 F.3d at 534;
Mertan, 667 F.3d at 539. Gomez's § 2255
motion should be dismissed for lack of jurisdiction.
the Court had jurisdiction to address Gomez's motion, he
is not entitled to relief on his claim. Gomez asserts that
the Court misapplied the advisory sentencing guidelines, but
he cannot raise this type of challenge in a § 2255
motion. “Section 2255 motions may raise only
constitutional errors and other injuries that could not have
been raised on direct appeal that will result in a
miscarriage of justice if left unaddressed. Misapplications
of the Sentencing Guidelines fall into neither category and
hence are not cognizable in [section] 2255 motions.”
United States v. Williamson, 183 F.3d 458, 462 (5th
Cir. 1999); see also United ...