U.S. v. Venancio-Dominguez

11 Citing cases

  1. Marshall v. U.S.

    CIVIL CASE NO. 3:10cv519, [Criminal Case No. 3:07cr283] (W.D.N.C. Dec. 10, 2010)

    " [Doc. 6, at 2]. The Government also stated that the change in law announced by the Supreme Court in Flores-Figueroa should be applied retroactively to this case on collateral review, citing United States v. Venancia-Dominguez, 660 F. Supp.2d 717 (E.D. Va. 2009). As a result, the Government has conceded that the Petitioner is actually innocent of Count Twenty-two and seeks vacatur of the Petitioner's conviction and sentence as to that count. [Id.].

  2. United States v. Herbert

    CASE NO. 5:97-CR-30024-1 (W.D. Va. Jun. 21, 2016)

    The Director of the Bureau of Prisons ("BOP") has not made a motion pursuant to 18 U.S.C. § 3582(c)(1)(A). Where the Director of the BOP has not made a motion for a reduction in sentence, district courts lack jurisdiction to grant a petitioner relief. See, e.g., Rabb v. Wilson, No. 1:13cv999, 2015 WL 731475, at *7 (E.D. Va. Feb. 19, 2015) ("As the Director of the BOP has not made such a motion on petitioner's behalf, there is no jurisdiction to consider the petitioner's request."); United States v. Venancio-Dominguez, 660 F. Supp. 2d 717, 719 (E.D. Va. 2009) ("The Director of the Bureau of Prisons did not file a motion, and therefore, the defendant's reliance upon this statute as a basis for relief is misplaced."). Accordingly, the Court lacks jurisdiction to amend Herbert's sentence.

  3. Schoultz v. United States

    C/A No.: 8:13-cv-03140-GRA (D.S.C. Jan. 6, 2014)   Cited 4 times

    Whether a new rule applies retroactively to cases on collateral review depends on whether it is a substantive rule or a procedural rule. United States v. Venancio-Dominguez, 660 F. Supp. 2d 717, 721 (E.D. Va. 2009). New substantive rules will generally apply retroactively, while new procedural rules will not. Id.

  4. Schoultz v. United States

    C/A No.: 8:13-cv-03140-GRA (D.S.C. Dec. 12, 2013)   Cited 4 times

    Whether a new rule applies retroactively to cases on collateral review depends on whether it is a substantive rule or a procedural rule. United States v. Venancio-Dominguez, 660 F. Supp. 2d 717, 721 (E.D. Va. 2009). New substantive rules will generally apply retroactively, while new procedural rules will not. Id. However, the Alleyne rule—requiring facts which increase the mandatory minimum sentence to be treated as elements that must be submitted to the jury and found beyond a reasonable doubt—is a procedural rule rather than a substantive rule.

  5. Rogers v. United States

    CIVIL NO. 10-8-GPM (S.D. Ill. Oct. 2, 2012)

    See also Rogers v. Hollingsworth, 2010 WL 2680806 (S.D. Ill 2010) at *3 ("It appears that the Supreme Court's decision in Flores-Figueroa may have created a 'newly recognized' statutory right which is retroactive to cases on collateral review, and, therefore, Petitioner has one year from the date that Flores-Figueroa was decided (May 24, 2009) to pursue relief pursuant to § 2255."); Short v. United States, 2009 WL 3698431 (E.D. Mo. 2009) at *14 ("The Supreme Court's decision in Flores-Figueroa appears to qualify as a new substantive rule, because it narrows the scope of 18 U.S.C. § 1028A(a)(1) by interpreting the word 'knowingly' to require the government to prove the defendant knew the means of identification that he unlawfully transferred, possessed, or used belonged to another person."); United States v. Venancio-Dominguez, 660 F.Supp.2d 717, 721 (E.D. Va. 2009) ("[I]t would appear that the Supreme Court's decision in Flores-Figueroa would qualify as a substantive rule because it narrows the scope of 18 U.S.C.§ 1028A(a)(1) by interpreting the word "knowingly."). III. PROCEDURAL DEFAULT

  6. Maddox v. Farley

    CASE NO. 1:11 CV 2032 (N.D. Ohio Apr. 30, 2012)

    He claims the Flores-Figueroa Court created a new rule of substantive criminal law that applies retroactively to final convictions. To support his argument, Maddox relies significantly on United States v. Venancio-Dominguez, 660 F. Supp.2d 717 (E.D. Va. 2009), a decision from the United States District Court for the Eastern District of Virginia, which held that Flores-Figueroa was a new rule of substantive law that applied retroactively to a final conviction. Based on this application, the Venancio-Dominguez court determined that the Court decision rendered the defendant actually innocent and vacated his conviction for aggravated theft.

  7. U.S. v. Mellor

    Case No. 7:07-cr-00003, (Civil Action No. 7:10-cv-80225) (W.D. Va. Sep. 9, 2010)   Cited 5 times
    Holding not deficient counsel's failure to argue that reimbursed individuals were not victims under U.S.S.G. §2B1.1

    The parties do not dispute the fact thatFlores-Figueroa announced a new rule of substantive criminal law and is therefore retroactively-applicable to final convictions.See United States v. Berry, 369 Fed. Appx. 500, 502 (4th Cir. 2010); United States v. Venancio-Dominguez, 660 F. Supp. 2d 717, 721 (E.D. Va. 2009). Because Mellor chose not to argue in her direct appeal that § 1028A(a)(1) required proof that she knew the stolen information belonged to another person, her claim is procedurally defaulted.Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999).

  8. Kowal v. U.S.

    No. C09-0125-LRR, No. CR06-0133-LRR (N.D. Iowa Jun. 3, 2010)   Cited 1 times

    The court assumes without deciding that Flores-Figueroa applies retroactively to final convictions. Cf. United States v. Venancio-Dominguez, 660 F. Supp. 2d 717, 720-21 (E.D. Va. 2009) (holding that Flores-Figueroa is retroactively applicable on collateral review). Despite such assumption, the court concludes that the Supreme Court's decision in Flores-Figueroa does not entitle the movant to relief because he failed to demonstrate either cause for failing to raise on direct review the issue of whether a defendant must know the means of identification belonged to another person or actual innocence.

  9. Culver v. U.S.

    Civ. Case No. 2:09-cv-728, Crim. Case No. 2:07-cr-263 (S.D. Ohio Apr. 21, 2010)   Cited 2 times

    The Court acknowledges that some conflict remains withing the federal district courts regarding whether Flores-Figueroa applies retroactively to cases on collateral review. See, e.g., United States v. Venancio-Dominguez, 660 F. Supp. 2d 717 (E.D. Va. 2009) (concluding that Flores-Figueroa applies retroactively to cases on collateral review); Short v. United States, No. 4:09-CV-763, 2009 WL 3698431, at *14 (E.D. Mo. Nov. 3, 2009) (applying Flores-Figueroa retroactively and noting disagreement with United States v. Ingram, 613 F. Supp. 2d 1069, 1086 n. 6 (N.D. Iowa 2009)). Because the United States does not object and, in fact, agrees that Petitioner's sentence on this Count should be vacated, the Court need not and does not address the issue of retroactivity.

  10. Rivas v. U.S.

    CIVIL CASE NO. 3:09cv429, [Criminal Case No. 3:08cr55] (W.D.N.C. Dec. 7, 2009)

    ed an unauthorized second or successive § 2255 motion since the Petitioner's attorney withdrew the motion presented in Rivas I. Once characterized as a successive § 2255 motion, the Government argues, Flores-Figueroa would not apply retroactively to this case absent a certification by the Fourth Circuit. 28 U.S.C. § 2255(h)(2) ("A second or successive motion must be certified . . . by a panel of the appropriate court of appeals to contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."); see also, Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (only the Supreme Court can find a new rule is retroactively applicable to cases on collateral review); Short v. United States, 2009 WL 3698431 **14 n. 6 (E.D.Mo. 2009) (Flores-Figueroa retroactive to first § 2255 motion but not to second absent certification); accord, United States v. Fernandez-Cruz, 2009 WL 3488352 (D.Md. 2009); United States v. Venancio-Dominguez, ___ F.Supp.2d ___, 2009 WL 3234217 (E.D.Va. 2009). While AEDPA [Anti-Terrorism and Effective Death Penalty Act of 1996] imposes gatekeeping restrictions on "second or successive" motions, it does not define what constitutes a "second or successive" motion. Courts have uniformly rejected a literal reading of the phrase.