United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
F. KING MAGISTRATE JUDGE.
has filed a 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his federal sentence entered under the
above criminal docket number. The matter is before the Court
on Movant's § 2255 motion and motion to date back
, Respondent's response , and Movant's
reply . For the reasons discussed below, Movant's
motion to vacate and motion to date back are due to be
pleaded guilty to conspiracy to possess with intent to
distribute methamphetamine, and, by judgment entered on
February 4, 2016, the Court imposed a sentence of ninety-two
months. (J., ECF No. 119). On December 20, 2016, the Eleventh
Circuit Court of Appeals affirmed the judgment against
Movant. (USCA Op., ECF No. 144; J. USCA, ECF No. 145). The
record does not indicate that Movant sought further direct
review in the United States Supreme Court.
21, 2017,  Movant filed a motion for appointment of
counsel to determine whether a sentencing guidelines
amendment and 18 U.S.C. § 3582(c) (governing sentence
modification) applied to his case. (Mot. to Appoint Counsel,
ECF No. 146). The Court denied the motion. (Order of Aug. 9,
2017, ECF No. 147).
October 12, 2017,  Movant filed a motion for leave to file a
pro se motion for a sentence reduction. (Mot. for
Leave to File, Conclusion, ECF No. 148). Movant asked the
Court to reduce his sentence to sixty months and “for
another opportunity to grant me a Motion for Leave to File a
Pro se Motion in order to find a remedy for my sentence
reduction, through a 2255 or 2241 petition for writ of habeas
corpus.” (Mot. for Leave to File at 1).
Court denied the motion as follows -
Defendant appears to seek the Court's permission to file
a motion for sentence reduction, a motion to attack his
sentence under 28 U.S.C. § 2255, or a petition for a
writ of habeas corpus under 28 U.S.C. § 2241. Defendant
also requests that the Court reduce his sentence to sixty
(60) months incarceration.
Defendant's Motion is denied. If Defendant requests that
his sentence be reduced or modified, he must file a motion
that clearly states the basis for the requested relief and
the legal authority for the Court to consider the request. It
is unclear what specific relief Defendant requests in his
Motion, other than a sentence reduction. Defendant has not
shown that he is entitled to a sentence reduction under one
of the narrow exceptions provided for under the law.
(Order of Oct. 30, 2017, at 2, ECF No. 149).
January 22, 2018,  Movant filed a second (identical) motion
for leave to file a pro se motion for a sentence
reduction. (Second Mot. for Leave to File, ECF No. 150). The
Court denied the second motion for the reasons already stated
in its earlier order. (Order of Feb. 6, 2018, ECF No. 151).
April 2018, Movant filed in the Eleventh Circuit Court of
Appeals an application for leave to file a second or
successive § 2255 motion. In re: Jose
Vega-Cervantes, No. 18-11696-H (11th Cir. May 23, 2018).
The Eleventh Circuit denied the application and found that
Movant had ...