Diaz v. United States of America Do not docket in this case. File only in 4:11-CR-130., No. 4:2016cv01924 - Document 2 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:11-CR-130 (Defendant No. 01) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Diaz v. United States of America Do not docket in this case. File only in 4:11-CR-130. Doc. 2 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MARIANO DIAZ, #96528-079, § § § § § § § § § Petitioner/Defendant, v. UNITED STATES OF AMERICA, Respondent/Plaintiff. July 01, 2016 David J. Bradley, Clerk CIVIL ACTION NO. H-16-1924 (Criminal No. H-11-130-01) MEMORANDUM OPINION AND ORDER Defendant, Mariano Diaz, has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody ("§ 2255 Motion") (Docket Entry No. 78). The court has carefully reviewed Gallegos' motion as required by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts and concludes that a response to his motion is not required. On March 28, 2011, Diaz pleaded guilty to illegal reentry after conviction of an aggravated felony in violation of 18 U.S.C. §§ 1326(a) and (b) (2). On June 14, 2011, the court sentenced Diaz to 96 months in prison (Judgment in a Criminal Case, Docket Entry No. 28). The United States Court of Appeals for the Fifth Circuit dismissed his June 21, 2012, appeal Diaz as frivolous filed a Vacate, Set Aside, Custody (Docket Entry No. (Docket Entry No. Motion Under 28 or Correct Sentence By a 47). On August U.S.C. 44) . § On 2255 to Person in Federal 6, 2012, the court Dockets.Justia.com entered a Memorandum Opinion and Order and Final Judgment denying his § 2255 Motion (Docket Entry Nos. 54 and 55). In his to 18 U.S.C. No. 78, relief p. 2255 Motion Diaz alleges "Reduce sentence pursuant § 924 (e) (2) (B) (ii) ." § 4) (§ 2255 Motion, Docket Entry Apparently Diaz believes that he is entitled to because of the retroactive United States, 135 S. Ct. 2551 (2015). effect of Johnson v. In Johnson the Court held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e) (2) (B) (ii), for purposes of sentence enhancement § for a felon's possession of a firearm was unconstitutionally vague. In Welch v. United States, 136 S. Ct. 1257 (2016), the Court held that its decision in Johnson announced a substantive rule that applied retroactively on collateral review. Diaz's sentence was not based on the ACCA or on 18 U.S.C. § 16, and neither the ACCA nor 18 U.S.C. sentencing guideline range. affected increased violence." by 16 by any his provision advisory § 16 affected his advisory Nor was his sentencing guideline range of the guideline sentencing range based guidelines on a that "crime of Although Diaz's advisory guideline range was increased levels, the increase was based on his prior felony drug trafficking offense pursuant to USSG § 2L1.2(b) (1) (A) (i). Diaz is therefore not entitled to relief based on Johnson. 28 U.S.C. § 2255(h) states: A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-2- (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; or ( 2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. This provision jurisdictional successive bar habeas and to a 28 U.S.C. district petition until § 2244 (b) (3) (A) court's the act as a consideration of a court authorized the district court to consider it. explained above, § § 2255 (h) (2) of appeals has For the reasons does not apply. Because Diaz' s 2255 Motion is successive and he has not obtained authorization from the United States Court of Appeals for this court to consider it, his Motion Under 28 U.S.C. Correct Sentence By a § 2255 to Vacate, Person in Federal Custody Set Aside, or (Docket Entry No. 78) is DISMISSED. The Clerk of Court is ORDERED to provide a copy of this Memorandum Opinion and Order to Diaz and to the United States Attorney for the Southern District of Texas, and to file a copy of this Memorandum Opinion and Order in the corresponding civil action. SIGNED at Houston, Texas, on this the 30th day of June, 2016. SIM LAKE UNITED STATES DISTRICT JUDGE -3-
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