Ontiberos-Silberio v. United States

• Decision Date: 29 January 2016
• Docket Number: Criminal No. B-13-282-1,Case No. 1:15-cv-213
• Parties: JOSE LUIS ONTIBEROS-SILBERIO, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Texas

JOSE LUIS ONTIBEROS-SILBERIO, Movant, v. UNITED STATES OF AMERICA, Respondent.

Case No. 1:15-cv-213

Criminal No. B-13-282-1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION

January 29, 2016

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

The Court is in receipt of Jose Luis Ontiberos-Silberio's pro se "Motion Under 28 U.S.C. § 2255" (hereinafter, Ontiberos-Silberio's "Motion or § 2255 Motion"). Dkt. No. 1. It is recommended that Ontiberos-Silberio's § 2255 Motion be dismissed as time-barred pursuant to 28 U.S.C. § 2255(f)(1). Additionally, it is recommended that the Court decline to issue a certificate of appealability.

I. Jurisdiction

This Court has jurisdiction over Ontiberos-Silberio's § 2255 Motion pursuant to 28 U.S.C. § 1331 and § 2255.

II. Background and Procedural History

On June 3, 2013, Ontiberos-Silberio pleaded guilty to being an alien unlawfully found in the United States after deportation, having previously been convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b). See United States of America v. Jose Ontiberos-Silberio, No. 1:13cr00282-1, Dkt. No. 33 at 1.¹ On November 7, 2013, Senior United States District Judge Hilda Tagle sentenced Ontiberos-Silberio to 46 months of imprisonment. Id. at 1-2. Judgment was entered on December 2, 2013. CR Dkt. No. 31 at 1. On December 20, 2013, the Court entered an Amended Judgment to correct a clerical mistake. CR Dkt. No. 33 at 1. Ontiberos-Silberio did not file a direct appeal.

On or about December 3, 2015, Ontiberos-Silberio filed his instant § 2255 Motion. Dkt. No. 1.² In his § 2255 Motion, Ontiberos-Silberio claims that he is entitled to relief pursuant to the "new rule of law" announced in Johnson v. United States, 135 S. Ct. 2551 (2015). Dkt. No. 1 at 1-3. The Court reviewed Ontiberos-Silberio's § 2255 Motion on December 4, 2015, and issued an Order to Show Cause. Dkt. No. 5. In relevant part, the Order to Show Cause stated:

On the face of the record currently before the Court, Ontiberos-Silberio's § 2255 Motion is untimely. See 28 U.S.C. § 2255(f) (providing a one-year limitations period for the filing of a § 2255 motion). Accordingly, Ontiberos-Silberio is ORDERED TO SHOW CAUSE as to why his § 2255 Motion should not be dismissed as untimely on or before January 15, 2016. If the Government wishes to waive itslimitations defense, it must file a notice to that effect on or before January 15, 2016. Ontiberos-Silberio is NOTIFIED that if he fails to comply with this Order, this civil action will be dismissed.

Id. at 1. The Government did not file a notice informing the Court of a wish to waive its limitations defense. But, on January 11, 2016, Ontiberos-Silberio filed a timely response to the Order to Show Cause. Dkt. No. 9. In his response, Ontiberos-Silberio suggests that he should be allowed to proceed because the new rule of law announced in Johnson v. United States "was not available at the time of his conviction." Id. at 1.

III. Legal Standards

Pursuant to 28 U.S.C. § 2255, a defendant may move to vacate, set aside or correct his sentence if (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the district court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). The nature of a § 2255 collateral challenge is extremely limited, being reserved for instances of constitutional or jurisdictional magnitude. United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If an error is not of constitutional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).

Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")³ amended 28 U.S.C. § 2255 to provide for a one-year limitations period applicable to motions filed under 28 U.S.C. § 2255. See 28 U.S.C.A. § 2255(f). Pursuant to § 2255(f), the one-year limitation period begins to run from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) 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; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C.A. § 2255(f).

IV. Discussion

A. Ontiberos-Silberio's Reliance on Johnson v. United States. Ontiberos-Silberio claims that he is entitled to § 2255 relief pursuant to the "new rule of law" announced in Johnson v. United States, 135 S. Ct. 2551 (2015). Dkt. No. 1 at 1-3. Liberally construing his arguments, he also indicates that his § 2255 Motion is not time-barred because the new rule announced in Johnson waspreviously unavailable to him. Dkt. No. 9 at 1-2. That is, he suggests that under § 2255(f)(3), his one-year limitations period will not expire until June 26, 2016, because the Supreme Court decided Johnson on June 26, 2015. Id.

In Johnson, the Supreme Court reviewed the lower court's application of 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"), to Samuel James Johnson's sentence. Johnson, 135 S. Ct. 2551, 2555. The ACCA requires federal courts to impose a minimum fifteen-year term of imprisonment upon repeat offenders who are convicted of unlawfully possessing a firearm under 18 U.S.C. § 992(g). 18 U.S.C. § 924(e). In relevant part, the ACCA provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years[.]

18 U.S.C. § 924(e)(1).

The ACCA provides six definitions for the term "violent felony." 18 U.S.C. § 924(e)(2)(B)(i)-(ii). A violent felony is any crime that: (1) "has as an element the use, attempted use, or threatened use of physical force against another person;" (2) constitutes burglary; (3) constitutes arson; (4) constitutes extortion; (5) involves the use of explosives; or (6) "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. "Courts have coined the first definition the 'force clause'; and the sixth definition, the 'residual clause.'" United States v. Curry, No. CR 10-111, 2015 WL 8478192, at *1 (E.D. La. Dec. 10, 2015) (citing United States v. Davis, 487 F.3d 282, 285 (5th Cir. 2007)).

The Supreme Court in Johnson held that imposing an increased sentence under the residual clause of the ACCA is a violation of due process because the clause is unconstitutionally vague. Johnson, 135 S. Ct. 2551, 2557 ("[T]he residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law."). The Supreme Court did not reach the issue of whether its ruling would apply retroactively. Id. at 2551; see also Santiago Valdez v. United States, No. 4:11-CR-065-A, 2015 WL 9593627, at *1 (N.D. Tex. Dec. 31, 2015) (recognizing that the Supreme Court in Johnson did not address retroactivity).

Recently, however, the Fifth Circuit has determined that Johnson does not apply retroactively. In re Williams, 806 F.3d 322, 325 (5th Cir. 2015). Still, other circuit courts of appeal have resolved the retroactivity question differently, and the Supreme Court has granted certiorari in Welch v. United States to resolve the issue. See Welch v. United States, No. 15-6418, 2016 WL 90594 (U.S. Jan. 8, 2016).

This Court need not wait for a Supreme Court determination regarding the retroactivity of the rule in Johnson because the rule in Johnson does not apply to Ontiberos-Silberio's conviction or sentence. As noted above, the Supreme Court in Johnson reviewed the lower court's application of § 924(e) to Johnson's sentence. Johnson, 135 S. Ct. 2551, 2555. In Ontiberos-Silberio's case, the Court did not sentence him pursuant to § 924(e). In fact, in sentencing him for violating 8 U.S.C. §§ 1326(a) and 1326(b), the Court did not apply any enhancement for the use or possession of a firearm. See CR Dkt. No. 19 (Final Presentence InvestigationReport); CR Dkt. No. 34 at 1 (Statement of Reasons, adopting the Final Presentence Investigation Report "without change"); CR Dkt. No. 33 (Amended Judgment).

Ontiberos-Silberio's Final Presentence Investigation Report ("PSR") gave him a "total offense level of 21 and a criminal history category of III," and stated that the advisory guideline "range for imprisonment" was 46 to 57 months. CR Dkt. No. 19 at 11. In calculating his base offense level and special offense characteristics, the PSR applied § 2L1.2(a) and § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines ("U.S.S.G"). Id. at 4. In calculating his criminal history score, the PSR applied U.S.S.G. § 4A1.1(c)-(d). Id. at 5-8. The Court adopted the PSR without change and imposed a 46-month sentence of imprisonment, a sentence which was at the low end of the advisory guideline range. CR Dkt. No. 34 at 1; CR Dkt. No. 33 at 2. Thus, even if the Supreme Court were to decide that the rule in Johnson applies retroactively, the rule would not provide Ontiberos-Silberio with a claim because the District Court did not apply § 924(e) when it sentenced him.

Relatedly, even the rationale supporting the rule in Johnson does not apply to provide Ontiberos-Silberio with relief....