DAVID 

vs. 

UNITED 

IN 

SHEPPARD, 

; 

D1:·;THJC.T COL'.RT 

•,·111n 1 i 1-:·· r:w;·necr or TEXA.s 

1-.-

THD ""'TED STATES v,sTR,oT louRT 

NORTHERN DISTRICT OF TEXAS CUR'" 1 .. S .. r.J.l:·:·.T·lUCTC.'OUICT 

FORT WORTH DIVISION lJv....... ····--- - ___ 0-:pUl)'._. __ . __ ~ 

§ 

§ 

Petitioner, § 

§ 

§ NO. 4:22-CV-834-A 

§ (NO. 4:16-CR-021-A) 

STATES OF AMERICA, § 

§ 

Respondent. § 

MEMORANDUM OPINION AND ORDER 

Movant, David Sheppard, filed a document titled, "Petition 

for Writ of Mandamus," which the court has interpreted as a 

motion under 28 U.S.C. § 2255. By order signed September 23, 

2022, the court gave movant notice of its intent so to construe 

the document and an opportunity to withdraw or amend same. 

Movant did not make a timely response to the order. Accordingly, 

the court ordered service of the motion and a response from the 

government. Movant then filed a motion for reconsideration, 

again urging that he is entitled to mandamus relief. The court, 

having considered the motions, the government's response 

(labeled a motion to dismiss), the record, including the record 

in the underlying criminal case, No. 4:16-CR-021-A, styled 

•united States of America v. Cleto Tarin, et al.," the record, 

and applicable authorities, finds that the motion under§ 2255 

Case 4:22-cv-00834-A Document 11 Filed 12/14/22 Page 1 of 6 PageID 49
must be dismissed and the motion for reconsideration must be 

denied. 

I. 

Background 

The record in the underlying criminal case reflects the 

following: 

On February 10, 2016, movant was named along with others in 

a two-count indictment charging him in count two with conspiracy 

to possess with intent to distribute a mixture and substance 

containing a detectable amount of methamphetamine, in violation 

of 21 U.S.C. § 846. CR Doc.i 37. Movant entered a plea of guilty. 

CR Doc. 214. He signed a factual resume setting forth the 

maximum penalty he faced, the elements of the offense, and the 

stipulated facts establishing that he committed the offense. CR 

Doc. 215. The probation officer prepared the presentence report 

("PSR"), which reflected that movant's base offense level was 

32. CR Doc. 298, 1 31. He received a two-level increase for 

importation, id. 1 32, and a two-level increase for maintaining 

a drug premises. Id. 1 33. He received a two-level and a onelevel decrease for acceptance of responsibility. Id. 11 39, 40. 

Based on a total offense level of 33 and a criminal history 

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

CR-021-A. 

2 

Case 4:22-cv-00834-A Document 11 Filed 12/14/22 Page 2 of 6 PageID 50
category of VI, movant's guideline imprisonment range was 235 to 

293 months. However, the statutorily authorized maximum sentence 

was twenty years, so the guideline range became 235 to 240 

months. Id. 1 140. Movant filed objections to the PSR. CR Doc. 

455. The probation officer prepared an addendum to the PSR, 

accepting the objection as to the drug premises enhancement. CR 

Doc. 371. The probation officer prepared a second addendum 

regarding drug purity. CR Doc. 436. 

The court sentenced movant to a term of imprisonment of 235 

months. CR Doc. 448. He appealed. CR Doc. 450. His conviction 

and sentence were affirmed. United States v. Sheppard, 694 F. 

App'x 282 (5th Cir. 2017). He did not file a petition for writ 

of certiorari. 

II. 

Ground of the Motion 

Movant urges one issue in support of the relief he seeks. 

He says that he should not have received a two-level enhancement 

for importation. Doc.' 1. at 1. 

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

3 

Case 4:22-cv-00834-A Document 11 Filed 12/14/22 Page 3 of 6 PageID 51
III. 

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. 

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). 

IV. 

Analysis 

In this case, movant's conviction and sentence were 

affirmed on July 27, 2017. Sheppard, 694 F. App'x 282. He did 

not file a petition for writ of certiorari, so his judgment 

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became final on October 25, 2017, when the time for filing such 

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

(2003). Movant did not seek relief based on his underlying 

judgment until August 31, 2022, almost four years after the oneyear limitations period expired. 28 U.S.C. § 2255(f). 

Movant does not offer any excuse for failing to timely file 

his motion. In fact, he does not address limitations at all. He 

simply argues that he should be entitled to mandamus relief. 

Doc. 8. A motion under§ 2255, rather than a mandamus action, is 

the means for challenging a federal conviction and sentence. A 

movant cannot circumvent limitations on filing a§ 2255 motion 

by labeling the relief he seeks a petition for mandamus. See 

Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000); United 

States v. Jefferson, 95 F. App'x 544 (5th Cir. 2004). 

Limitations notwithstanding, movant could not prevail in 

any event. First, misapplication of the sentencing guidelines is 

not cognizable on collateral review. United States v. 

Williamson, 183 F.3d 458, 462 (5th Cir. 1999). Second, movant's 

claim was raised on appeal and cannot be considered here. United 

States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986). And, third, 

movant cannot show that he could prevail on the merits, as the 

Fifth Circuit has already determined that the court properly 

5 

Case 4:22-cv-00834-A Document 11 Filed 12/14/22 Page 5 of 6 PageID 53
applied the two-level enhancement for importation. Sheppard, 694 

F. App'x at 283. 

V. 

Order 

The court ORDERS that movant's motion under 28 U.S.C. § 2255 

be, and is hereby, dismissed, and his motion for reconsideration 

be, and is hereby, denied. 

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 December 14, 2022. 

JOH McBRYDE 

Se ior United States Distric 

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