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Garza v. United States

United States District Court, N.D. Indiana, Hammond Division

July 4, 2019

MARK T. GARZA
v.
UNITED STATES OF AMERICA

          OPINION AND ORDER

          JAMES T. MOODY JUDGE UNITED STATES DISTRICT COURT.

         Mark Garza has filed a motion (DE # 30) challenging his sentence pursuant to 28 U.S.C. § 2255. For the reasons identified below, Garza's motion will be denied.

         I. BACKGROUND

         On December 15, 2011, this court accepted Garza's plea agreement, and entered judgment convicting Garza of unlawful possession of a firearm by a felon, pursuant to 18 U.S.C. § 922(g). (DE # 28.) The court sentenced Garza to a 84-month term of imprisonment, a 3-year term of supervised release, and imposed a $100 special assessment. (Id.) In calculating his sentence, this court determined that Garza's base offense level was 24, on the basis that he had two prior felony convictions for “crimes of violence” as defined by § 4B1.2. See also U.S.S.G. § 2K2.1(a)(2) (2011). Garza's two prior felony convictions were: (1) a 2005 Indiana conviction for criminal recklessness; and (2) a 2009 Illinois conviction for burglary.

         Garza now moves to vacate his sentence on the basis that this court's use of the Sentencing Guideline's “residual clause” in § 4B1.2 to calculate his sentence is unconstitutional in light of Johnson v. United States, 135 S.Ct. 2551 (2015).

         II. LEGAL STANDARD

         Section 2255 allows a person convicted of a federal crime to seek to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255. This relief is available only in limited circumstances, such as where an error is of jurisdictional or constitutional magnitude, or where there has been an error of law that “constitutes a fundamental defect which results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal citation and quotation marks omitted). Motions to vacate a conviction or correct a sentence ask a court to grant an extraordinary remedy to a person who has already had an opportunity for full process. Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006). A motion under § 2255 “is neither a recapitulation of nor a substitute for a direct appeal.” Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (internal citation and quotation marks omitted). A court may deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Shipman v. United States, 925 F.3d 938. 943 (7th Cir. 2019).

         Rule 4 of the Rules Governing § 2255 Proceedings requires the court to promptly examine the motion. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” Id.

         III. DISCUSSION

         Garza's motion to vacate must be summarily dismissed pursuant to Rule 4 because his motion is neither timely nor meritorious.

         Prisoners seeking to challenge their sentence pursuant to § 2255 must move to do so within one year from the latest of the following:

(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 ...

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