MEMORANDUM OPINION AND ORDER

PHILIP R. MARTINEZ, District Judge.

On this day, the Court considered Movant Esequiel Hernandez's pro se "Memorandum in Support of His Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255" (ECF No. 163) [hereinafter "Motion"], filed on June 14, 2017.1 In his Motion, Movant challenges the reasonableness of the sentence that the Court imposed in his case following his guilty-plea conviction for conspiracy to possess with the intent to distribute marijuana. Movant claims the Court erred when it enhanced his sentence based on his conviction for possessing marijuana.2 He asks the Court to resentence him without the enhancement.3

Because it plainly appears from Movant's Motion and the record that Movant is not entitled to § 2255 relief, the Court will deny his Motion. The Court will additionally deny him a certificate of appealability.

I. BACKGROUND AND PROCEDURAL HISTORY

In late 1997, an unindicted co-conspirator disclosed to Drug Enforcement Administration special agents that Movant had joined his narcotics-trafficking organization to help facilitate the shipment of marijuana from El Paso, Texas, to Florida, New York, North Carolina, Oklahoma, and other domestic locations.4 The co-conspirator further revealed that Movant managed "stash houses" in El Paso and organized marijuana shipments for him.5

A grand jury returned a one-count indictment charging Movant and others with conspiracy to possess with the intent to distribute more than 100 kilograms of marijuana.6 Movant pleaded guilty, pursuant to the terms of a plea agreement.

In Movant's presentence investigation report, the probation officer noted that the Drug Quantity Table in the Sentencing Guidelines for the amount of marijuana attributed to Movant established a base offense level of 34.7 The probation officer added a two-level upward adjustment for Movant's leadership role and a two-level upward adjustment because Movant failed to appear at his original sentencing hearing.8 The probation officer also attributed one criminal history point to Movant for a prior conviction for possession of more than five but less than fifty pounds of marijuana under Docket Number 940D78987 in the 210th Judicial District Court of El Paso, County, Texas,9 and two criminal history points because Movant was on probation at the time he committed the instant offense.10 Based on a total offense level of 38 and a criminal history category of II, Movant's guideline imprisonment range was 262 to 327 months.11 The Court adopted the presentence investigation report without change12 and sentenced Movant within the guidelines range to 288 months' imprisonment.13 The Court subsequently reduced the sentence to 230 months' imprisonment.14

Movant claims that, in light of Mathis v. United States, 136 S.Ct. 2243 (2016), United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017), the Court should resentence him because his convictions "under Texas Health & Safety Code 481.112(a) do not qualify as prior convictions for enhanced penalty under 28 U.S.C. § 851."15 He asks the Court to resentence him without an enhancement.16

II. APPLICABLE LAW

A § 2255 motion "`provides the primary means of collateral attack on a federal sentence.'"17 Relief under § 2255 is warranted for errors that occurred at trial or at sentencing.18 Before a court will grant relief pursuant to § 2255, a movant must "establish that either (1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack."19

A § 2255 motion is subject to a one-year limitations period.20 A federal prisoner must file a § 2255 motion within one year from the date on which (1) the judgment became final; (2) the government-created impediment to filing the motion was removed; (3) the United States Supreme Court initially recognized, and made retroactively applicable to cases on collateral review, the legal predicate for the motion; or (4) the petitioner could have discovered, through due diligence, the factual predicate for the motion.21

The one-year limitations period is not jurisdictional and is subject to equitable tolling.22 Equitable tolling is not, however, available for "garden variety claims of excusable neglect."23 It "is permitted only `in rare and exceptional circumstances.'"24

Ultimately, the movant bears the burden of establishing his claims of error by a preponderance of the evidence.25 "If it plainly appears from the motion . . . and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion. . . ."26

III. ANALYSIS

Movant claims that, in light of Mathis, Hinkle, and Tanksley, the Court erred when it enhanced his punishment based on his prior state-court felony conviction for a violation of Texas Health & Safety Code 481.112(a).27 He asks the Court to resentence him without the enhancement.28

In Mathis, the Supreme Court outlined the process by which a district court should determine, for the purposes of the Armed Career Criminal Act, if a defendant's prior state-court conviction was one of the enumerated violent felonies listed in 18 U.S.C. § 924(e)(2)(B)(ii).29 Prior to Mathis, the Supreme Court required a district court to compare the elements of the state crime with the generic version of the enumerated federal offense. If the state crime was "the same as, or narrower than, the relevant generic offense," then the state crime qualified as an enumerated offense.30 The Supreme Court reaffirmed this approach in Mathis, but added that, because the inquiry focused on the generic offense, a court "may not ask whether the defendant's conduct — his particular means of committing the crime — falls within the generic definition."31 Accordingly, the Supreme Court concluded that if the elements of the state law crime are broader than the generic version of an enumerated federal offense, then the state law conviction could not serve as a predicate for career offender status under the Armed Career Criminal Act.32

In Hinkle, the Fifth Circuit Court of Appeals held that a prior conviction for delivery of a controlled substance, in violation of Texas Health & Safety Code § 481.112(a),33 could not "serve as a predicate offense under the Career Offender Guideline provision, which is [Sentencing Guideline] § 4B1.1."34 The Fifth Circuit reasoned that "[t]he `delivery' element of Hinkle's crime of conviction criminalize[d] a `greater swath of conduct than the elements of the relevant [Guidelines] offense.'"35 The Fifth Circuit further explained that, although Circuit precedent previously permitted sentencing courts to use a "modified categorical approach" and ascertain from state-court records whether the actual method of delivery constituted a controlled substance offense under the Sentencing Guidelines, "Mathis makes clear that sentencing courts may no longer do so."36

Finally, in Tanksley, the Fifth Circuit held that Texas Health & Safety Code "[s]ection 481.112(a) is an indivisible statute to which the modified categorical approach does not apply" because it "criminalizes a greater swath of conduct than the elements of the relevant [Guidelines] offense."37 Thus, the Fifth Circuit concluded that the offense of possession with the intent to deliver a controlled substance under § 481.112(a) did not qualify as a "controlled substance offense under the Sentencing Guidelines."38

As the Court noted above, a § 2255 motion is subject to a one-year limitations period, which, in most cases, begins to run when the judgment becomes final.39 In this case, Movant timely appealed his sentence, and the Fifth Circuit affirmed the Court's judgment on December 21, 2012.40 Movant did not pursue further direct appeals. Thus, Movant's conviction became final on March 21, 2013, when the 90-day period for filing a petition for writ of certiorari expired.41 Hence, Movant's time period for filing a § 2255 motion expired on March 21, 2014. Movant filed his Motion on June 14, 2017.42 Thus, he filed his Motion over three years beyond the deadline.

As the Court noted above, § 2255's limitations period is extended "if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."43 Movant asserts that his Motion is timely because it relies on the recent decisions in Mathis, Hinkle, and Tanksley:44

Movant's reliance on Mathis to extend the limitations period is misplaced. In Mathis, the Supreme Court held that a modified categorical approach was not appropriate for indivisible statutes.46 Thus, Mathis "provided helpful guidance for determining whether a predicate statute of conviction is divisible."47 However, the Supreme Court also indicated in Mathis that its decision was dictated by prior precedent and that it was not announcing a new rule.48 Multiple courts have subsequently concluded that "Mathis did not set forth a new rule of constitutional law that has been made retroactive to cases on collateral review."49 Because Mathis was not made retroactively applicable to cases on collateral review, the Court cannot read it as triggering a new, one-year period for Movant to obtain § 2255 relief.

Movant's reliance on the Fifth Circuit's opinions in Hinkle and Tanksley to trigger the limitation period is similarly misplaced. In both Hinkle and Tanksley, the Fifth Circuit applied Mathis on direct appeal; thus, the defendants in those cases did not suffer the same time-bar issue applicable to Movant's collateral attack.50 Furthermore, Hinkle and Tanksley neither wrote new law, nor constituted retroactively applicable Supreme Court decisions.

Additionally, Movant does not claim that the Government impeded his efforts to file a motion or that he could not have timely discovered the facts supporting his claim through the exercise of due diligence. Therefore, the Court concludes that Movant's § 2255 Motion is time barred and, because his case presents no rare and exceptional circumstances, that he is not entitled to equitable tolling.

Although the statute of limitations is typically considered an affirmative defense, a district court may raise the defense on its own motion and dismiss a petition prior to any answer if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court."51 A district court may not dismiss a motion as untimely on its own initiative, however, unless a movant first has fair notice and an opportunity to respond.52

In this case, the Court finds that even if the Motion were not time barred, Movant is not entitled to relief on the merits of his claim because the law he cites does not apply retroactively. Simply stated, the Court properly applied the controlling law at the time of Movant's sentencing, and the subsequent decisions in Mathis and Hinkle are not retroactively applicable to his case on collateral review.

Furthermore, the Court did not "enhance" Movant's punishment under the Career Offender Guidelines based on his prior conviction in a Texas state court for possession of marijuana.53 Instead, the Court attributed one criminal history point to Movant for the marijuana offense and two criminal history points because Movant was on probation at the time he committed the instant offense.54

Consequently, Movant is clearly not entitled to § 2255 relief on the merits of his claim. Under these circumstances, granting Movant an opportunity to explain the delay in filing his § 2255 Motion is unnecessary.

IV. CERTIFICATE OF APPEALABILITY

A petitioner may not appeal a final order in a habeas corpus proceeding "[u]nless a circuit justice or judge issues a certificate of appealability."55 "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."56 To warrant a grant of the certificate as to claims that the district court rejects solely on procedural grounds, the movant must show both that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."57

In this case, reasonable jurists could neither debate the denial of Movant's § 2255 Motion on procedural or substantive grounds, nor find that the issues presented are adequate to deserve encouragement to proceed.58 Accordingly, the Court will not issue a certificate of appealability.59

V. CONCLUSION AND ORDERS

Because it plainly appears from Movant's § 2255 Motion and the record that his claim is time barred and, in any event, he is not entitled to relief on its merits,60 the Court concludes that it should deny his Motion.61 The Court further concludes that it should deny Movant a certificate of appealability. The Court, therefore, enters the following orders:

IT IS ORDERED that Movant Esequiel Hernandez's pro se "Memorandum in Support of His Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255" (ECF No. 163) is DENIED, and his civil cause is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Movant Esequiel Hernandez is DENIED a CERTIFICATE OF APPEALABILITY.

IT IS ALSO ORDERED that all pending motions, if any, are DENIED as moot.

IT IS FINALLY ORDERED that the District Clerk shall CLOSE this case.