United States District Court, N.D. Indiana, Hammond Division
MARK T. GARZA
UNITED STATES OF AMERICA
OPINION AND ORDER
T. MOODY JUDGE UNITED STATES DISTRICT COURT.
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.
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.
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).
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).
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.”
motion to vacate must be summarily dismissed pursuant to Rule
4 because his motion is neither timely nor meritorious.
seeking to challenge their sentence pursuant to § 2255
must move to do so within one year from the latest of the
(1) the date on which the judgment of conviction becomes
(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
(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