r- . iri; [)cfSTRJ(7 c_'6i,m-· -- I NORTt-l.ERY DJSTr:rcT OF 'l1IX.As 

l .• ·7 

IN THE UNITED STATES DISTRICT cduRT ocr -3 2022 ! 

NORTFHOERR: :oI:TTHRIDCITVIo:Io~XAS ~;;~,K~/~~-~~~COURT 

~~. D.::1mty ~~----' 

LONNIE LEE ROTENBERRY, § 

§ 

Movant, § 

§ 

vs. § NO. 4:22-CV-722-A 

§ (NO. 4:16-CR-121-A) 

UNITED STATES OF AMERICA, § 

§ 

Respondent. § 

MEMORANDUM OPINION AND ORDER 

Came on for consideration the motion of Lonnie Lee 

Rotenberry, movant, under 28 U.S.C. § 2255 to vacate, set aside, 

or correct sentence by a person in federal custody. The court, 

having considered the motion, the government's response, the 

reply, the record, including the record in the underlying 

criminal case, No. 4:16-CR-121-A, styled "United States v. 

Ashleigh Lyn Allen, et al.," and applicable authorities, finds 

that the motion must be dismissed as untimely. 

I. 

Background 

The record in the underlying criminal case reflects the 

following: 

On May 18, 2016, movant was named along with others in a 

two-count information charging him in count two with conspiracy 

to possess with intent to distribute a mixture and substance 

Case 4:22-cv-00722-A Document 7 Filed 10/03/22 Page 1 of 7 PageID 28
containing a detectable amount of methamphetamine, in violation 

of 21 U.S.C. § 846. CR Doc. 1 92. On May 26, 2016, movant appeared 

before the court with the intent to enter a plea of guilty. CR 

Doc. 98. Movant and his attorney signed a waiver of indictment. 

CR Doc. 100. They also signed a factual resume setting forth the 

maximum penalties faced by movant, the elements of the offense, 

and the stipulated facts establishing that movant had committed 

the offense. CR Doc. 99. Movant testified under oath at 

arraignment that: He waived the return of an indictment; he 

understood that he should never depend or rely upon any 

statement or promise by anyone as to what penalty would be 

assessed against him and that his plea must not be induced or 

prompted by any promises, mental pressure, threats, force, or 

coercion; he had discussed with his attorney how the sentencing 

guidelines might apply in his case; the court would not be bound 

by the stipulated facts and could take into account other facts; 

the guideline range could not be determined until the 

presentence report ("PSR") had been prepared; his term of 

imprisonment could be as much as twenty years; he understood the 

elements of the offense and he admitted that all of them 

existed; he had read and understood the information; he had read 

1 The "CR Doc. ___ " reference is to the number of the item on the docket in the underlying criminal case, No. 4: 16-

CR-121-A. 

2 

Case 4:22-cv-00722-A Document 7 Filed 10/03/22 Page 2 of 7 PageID 29
and understood the factual resume and understood everything in 

it; he was satisfied with his representation; no threats or 

promises had been made to induce him to plead guilty; and, the 

stipulated facts in the factual resume were true. CR Doc. 306. 

The probation officer prepared the PSR, which reflected 

that movant's base offense level was 32. CR doc. 145, 1 24. He 

received a two-level enhancement for possession of a firearm. 

Id. 1 25. He received a two-level and a one-level reduction for 

acceptance of responsibility. Id. 11 31, 32. Based on a total 

offense level of 31 and a criminal history category of VI, his 

guideline imprisonment range was 188 to 235 months. Id. 1 102. 

Movant filed objections, CR Doc. 177, and the probation officer 

prepared an addendum to the PSR. CR Doc. 192. The court 

determined that movant had not accepted responsibility for his 

conduct and that his total offense level was 34 and the 

guideline imprisonment range 262 to 327 months. CR Doc. 307 at 

13-14. The court sentenced movant to a term of imprisonment of 

240 months. CR Doc. 259. He appealed. CR Doc. 271. The attorney 

appointed to represent him on appeal filed briefs in accordance 

with Anders v. California, 386 U.S. 738 (1967), and the court of 

appeals agreed with the assessment that the appeal presented no 

nonfrivolous issues for appellate review. CR Doc. 329. On 

February 23, 2018, the appeal was dismissed. CR Doc. 328. 

3 

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II. 

Grounds of the Motion 

As best the court can tell, movant alleges that he pleaded 

guilty to count one of the information, but was wrongfully 

sentenced under count two. Doc. 2 1. In a document titled "Amended 

Petition" filed August 25, 2022, movant alleges that he received 

ineffective assistance of counsel because his appeal was never 

exhausted. Doc. 4. Thus, he maintains that limitations does not 

apply. 

III. 

Standards of Review 

A. Limitations 

A one-year period of limitation applies to motions under 

§ 2255. The limitation period runs 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 government 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. 

2 The "Doc. "reference is to the number of the item on the docket in this civil action. 

4 

Case 4:22-cv-00722-A Document 7 Filed 10/03/22 Page 4 of 7 PageID 31
28 U.S.C. § 2255(f). Typically, the time begins to run on the date 

the judgment of conviction becomes final. United States v. Thomas, 

203 F.3d 350, 351 (5th Cir. 2000). A criminal judgment becomes 

final when the time for seeking direct appeal expires or when the 

direct appeals have been exhausted. Griffith v. Kentucky, 479 U.S. 

314, 321 n.6 (1987) 

B. Section 2255 

After conviction and exhaustion, or waiver, of any right to 

appeal, courts are entitled to presume that a defendant stands 

fairly and finally convicted. United States v. Frady, 456 U.S. 

152, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-

32 (5th Cir. 1991). A defendant can challenge his conviction or 

sentence after it is presumed final on issues of constitutional 

or jurisdictional magnitude only, and may not raise an issue for 

the first time on collateral review without showing both •cause• 

for his procedural default and •actual prejudice• resulting from 

the errors. Shaid, 937 F.2d at 232. 

Section 2255 does not offer recourse to all who suffer 

trial errors. It is reserved for transgressions of 

constitutional rights and other narrow injuries that could not 

have been raised on direct appeal and would, if condoned, result 

in a complete miscarriage of justice. United States v. Capua, 

5 

Case 4:22-cv-00722-A Document 7 Filed 10/03/22 Page 5 of 7 PageID 32
656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other 

words, a writ of habeas corpus will not be allowed to do service 

for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974); 

United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). 

Further, if issues "are raised and considered on direct appeal, a 

defendant is thereafter precluded from urging the same issues in 

a later collateral attack." Moore v. United States, 598 F.2d 439, 

441 (5th Cir. 1979) (citing Buckelew v. United States, 575 F.2d 

515, 517-18 (5th Cir. 1978)). 

IV. 

Analysis 

The record reflects that movant's appeal was dismissed on 

February 23, 2018. Thus, his judgment became final on May 24, 

2018, the date the time for filing a petition for writ of 

certiorari expired. Clay v. United States, 537 U.S. 522, 525 

(2003). He had until May 24, 2019, in which to file his motion 

under§ 2255. He did not deposit his motion in the prison mail 

system until August 14, 2022, more than three years too late. 

Doc. 1 at 2. 

Movant argues that limitations never ran because there is 

no final judgment. He refers to Exhibit D, his notice of appeal, 

CR Doc. 271, and Exhibit E, a letter dated January 10, 2017, 

from the court of appeals to the court reporter regarding her 

6 

Case 4:22-cv-00722-A Document 7 Filed 10/03/22 Page 6 of 7 PageID 33
request for an extension of time to complete a transcript. Doc. 

4 attachs. The documents do not support the argument. 

In his reply, movant argues that limitations has not run 

due to fraud, arguing that he did not plead guilty to count 2 of 

the information. The record reflects otherwise. Movant's motion 

is untimely and must be dismissed. 

V. 

Order 

The court ORDERS that movant's motion be, and is hereby, 

dismissed as untimely. 

Pursuant to Rule 22(b) of the Federal Rules of Appellate 

Procedure, Rule ll(a) of the Rules Governing Section 2255 

Proceedings for the United States District Courts, and 28 U.S.C. 

§ 2253(c) (2), for the reasons discussed herein, the court further 

ORDERS that a certificate of appealability be, and is hereby, 

denied, as movant has not made a substantial showing of the 

denial of a constitutional right. 

SIGNED October 3, 2022. 

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