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Jesus Gamez v. Janis Jack ( 2010 )


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  •      IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2010
No. 10-40007
Summary Calendar                    Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS ALBERTO GAMEZ,
Defendant-Appellant
Consolidated with
No. 10-40009
Summary Calendar
JESUS ALBERTO GAMEZ,
Petitioner-Appellant
v.
THE HONORABLE JUDGE JANIS GRAHAM JACK,
Respondent-Appellee
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 7:01-CR-85-1
USDC No. 2:09-CV-236
No. 10-40007
c/w No. 10-40009
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Jesus Alberto Gamez, currently Texas prisoner # 1200696, pleaded guilty
in 2001 in federal court to importation of marijuana and received a 30-month
sentence, to be followed by a three-year term of supervised release.                      On
December 9, 2005, the Probation officer issued a superseding petition for
revocation of the supervised release term, alleging drug use and adding a claim
that Gamez had been convicted in state court of aggravated assault and was
serving a 10-year sentence. Although the court issued an arrest warrant, it has
not yet been served on Gamez. Gamez filed a
    28 U.S.C. § 2254
     petition, arguing
that the use of his state conviction in federal revocation proceedings constituted
a violation of the Double Jeopardy Clause. The district court concluded that the
petition was more properly construed as a motion in the criminal case. Because
Gamez was not challenging his state conviction by arguing that he was “in
custody in violation of the Constitution or laws or treaties of the United States,”
his pleading did not constitute a § 2254 petition. See § 2254(a). Additionally,
because Gamez is not serving a federal sentence and has not yet been sentenced
to serve a future federal sentence, he may not proceed under
    28 U.S.C. § 2255
    .
See § 2255(a); Simmons v. United States,
    437 F.2d 156
    , 159 (5th Cir. 1971). The
district court’s construction of Gamez’s motion as arising in the criminal case is
not error.
The court denied Gamez’s motion, finding no potential double jeopardy
violation. To the extent that he is challenging that ruling, no such constitutional
error exists because the purpose of a sentence imposed for violating the terms
of supervised release is to punish the defendant for the breach of trust, rather
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
2
No. 10-40007
c/w No. 10-40009
than for the criminal offense giving rise to the revocation. See United States v.
Payan,
    992 F.2d 1387
    , 1396-97 (5th Cir. 1992); see also United States v. Zamora-
Vallejo,
    470 F.3d 592
    , 596 n.6 (5th Cir. 2006) (noting that while conduct
resulting in revocation might constitute a new criminal offense, that conduct is
not being punished twice if the defendant receives two sentences).
Gamez also argues that he is suffering a constitutional violation because
the federal authorities have failed to execute the outstanding arrest warrant and
the district court has failed to hold a revocation hearing. Even assuming that
this court will consider these arguments for the first time on appeal, they are
meritless. Gamez is not entitled to a revocation hearing until the arrest warrant
is executed. United States v. Tippens,
    39 F.3d 88
    , 90 (5th Cir. 1994). Although
a prisoner may allege a due process violation based on a delay between the
issuance of the warrant and its execution, see
    id.,
     Gamez has not made such an
argument. As noted above, his double jeopardy argument is meritless. To the
extent that Gamez is arguing that removal of the federal detainer may permit
him to obtain early parole on his state conviction, he has no constitutionally
protected liberty interest in parole under Texas law. See Johnson v. Rodriguez,
    110 F.3d 299
    , 305 (5th Cir. 1997). Gamez thus has not shown that he suffered
a due process violation arising from the delay in executing his arrest warrant for
the federal revocation provisions.     The judgment of the district court is
AFFIRMED.
3