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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TIMOTHY MARTIN CASAREZ, 31346-177,)

MOVANT, )

) 3:04-CR-018-G(2)

v. ) 3:05-CV-1450-G

) ECF

UNITED STATES OF AMERICA, )

RESPONDENT. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the

United States District Court for the Northern District of Texas. The Findings, Conclusions and

Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. Procedural Background

On July 20, 2004, Movant pled guilty to (1) theft of mail, money or other property by use

of a deadly weapon, in violation of 18 U.S.C. § 2114, and (2) using, carrying, and brandishing a

firearm during or in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). 

Movant was sentenced to a total of 471 months confinement. He did not appeal his conviction.

On July 13, 2005, Movant filed this motion to vacate, set-aside, or correct sentence

pursuant to 28 U.S.C. § 2255. He states his conviction and sentence are unlawful under United

 

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In Booker, the Supreme Court extended to the Federal Sentencing Guidelines the rule

announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and reaffirmed in Blakely v.

Washington, 542 U.S. 296 (2004), that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts established by a

plea of guilty or jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, 543 U.S. at 244; see also, Padilla v. United States, 416 F.3d 424,

426 n.1 (5th Cir. 200). The Booker Court also excised certain statutory provisions that made the

Guidelines mandatory, thereby rendering them advisory only. Booker, 543 U.S. at 245.

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States v. Booker, 543 U.S. 220 (2005).1 He also argues he received ineffective assistance of

counsel. 

II. Discussion

The Fifth Circuit Court of Appeals has squarely held that Booker does not apply

retroactively on collateral review to a first § 2255 motion. See United States v. Gentry, 432 F.3d

600, 605 (5th Cir. 2005). Thus, Booker does not provide a basis for relief to a defendant, such as

the one in this case, whose conviction became final before the case was decided. Id. at 603-04 &

n.2. Accordingly, Movant’s claim pursuant to Booker should be denied.

Additionally, Movant’s claim of ineffective assistance of counsel is wholly conclusory. 

Movant states: “Counsel was ineffective during the Plea Agreement/ (sic) of the Proceedings.” 

(Pet. at 7). Movant does not state how his counsel was ineffective. Movant’s conclusory

allegations fail to establish that he is entitled to relief. See Ross v. Estelle, 694 F.2d 1008, 1012

(5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in

habeas proceedings). Movant’s motion pursuant to 28 U.S.C. § 2255 should be denied.

 

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RECOMMENDATION

For the foregoing reasons, the Court recommends that the motion to correct, vacate or

set-aside sentence pursuant to 28 U.S.C. § 2255 be denied. 

Signed this 15th day of May, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and

recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must serve and

file written objections within ten days after being served with a copy. A party filing objections

must specifically identify those findings, conclusions or recommendation to which objections are

being made. The District Court need not consider frivolous, conclusory or general objections. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to

the proposed findings, conclusions and recommendation within ten days after being served with

a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of

the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. 

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

 

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