Civil Action No. 7:16-CV-420, Criminal No. 7:15-cr-996.


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

Editors Note
Applicable Law: 28 U.S.C. § 2255
Cause: 28 U.S.C. § 2255 Motion to Vacate / Correct Illegal Sentence
Nature of Suit: 510 Prisoner: Vacate Sentence
Source: PACER

Attorney(s) appearing for the Case

Jose Artemio Mendoza-Herrera, Plaintiff, Pro Se.

United States of America, Defendant, represented by Carolyn Ferko , U S Attorney Office & Mary Jane Harmon , Office of the US Attorney.


MICAELA ALVAREZ, District Judge.

Pending before the Court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody1 filed by Petitioner Jose Artemio Mendoza-Herrera ("Petitioner") to which the Government responded with a Motion for Summary Judgment.2 After considering the Petitioner's motion, the Government's motion for summary judgment and applicable law, the Government's motion is GRANTED and the Petitioner's motion is DISMISSED.

I. Brief Background

Petitioner was charged and convicted of violating 8 U.S.C. 1326. He was subsequently sentenced to a term of imprisonment which he is currently serving. Petitioner's judgment is now final as he did not appeal his judgment and the time for appeal has now expired. In the instant motion, Petitioner asserts he is entitled to relief pursuant to Johnson v. United States.3

II. Discussion

Under Title 28, United States Code, Section 2255 a federal prisoner who claims that his "sentence was imposed in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."4 Upon the filing of such a petition, the sentencing court must order a hearing to determine the issues and findings of fact "[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ."5

Here, Petitioner claims relief pursuant to Johnson v. United States.6 Because Petitioner raises a constitutional challenge to his sentence, his motion is properly asserted pursuant to 28 U.S.C. § 2255. However, Petitioner's motion fails for two reasons.

In Johnson v. United States, the Supreme Court found the "residual clause" of the Armed Career Criminal Act ("ACCA") to be unconstitutionally vague7 and then in Welch v. United States8 the Supreme Court held that the Johnson holding should be applied retroactively. Thus, a prisoner sentenced pursuant to the ACCA may be entitled to relief. Significant to the Court's decision here, Petitioner was not sentenced under the ACCA. Rather, Petitioner was convicted of violating 8 U.S.C. § 1326 and was sentenced pursuant to that statute. To the extent Petitioner claims the Johnson holding is applicable to sentencing guideline enhancements based on the crime of violence definition found in 18 U.S.C. § 16(b), the Fifth Circuit very recently rejected that argument in United States v. Gonzalez-Longoria.9 Furthermore, Petitioner did not receive a 18 U.S.C. § 16(b) enhancement. Therefore, Johnson does not afford Petitioner any relief.

III. Conclusion

It is clear from the face of Petitioner's Motion, as well as the record as it currently stands, that Petitioner is not entitled to relief under 28 U.S.C. § 2255. Accordingly, the Government's motion for summary judgment is GRANTED and Petitioner's Motion to Correct, Vacate, or Set Aside Sentence is DISMISSED. Additionally, should Petitioner seek a certificate of appealability, such is DENIED.



1. Dkt. No. 1.
2. Dkt. No. 6.
3. 135 S.Ct. 2552 (2016).
4. 28 U.S.C. § 2255.
5. Id.
6. 135 S.Ct. 2551 (2015).
7. Id.
8. 136 S.Ct. 1257 (2016).
9. No. 15-40041 (Fifth Circuit filed August 5, 2016).


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