United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
April 10, 2014, pursuant to a written plea agreement [D.E.
34], Isabel Marquez Fajardo ("Fajardo" or
"petitioner") pleaded guilty to one count of
conspiracy to distribute and possess with intent to
distribute 500 grams or more of cocaine in violation of 21
U.S.C. § 846. See [D.E. 15, 32, 34]. On July 16, 2014,
the court sentenced Fajardo to 60 months' imprisonment
[D.E. 53, 59]. Fajardo did not appeal her conviction or
August 2, 2016, Fajardo moved under 28 U.S.C. § 2255
"for [a] minor role adjustment and sentence
reduction" [D.E. 80]. On November 14, 2016, Fajardo
re-filed her motion as a motion to vacate, set aside, or
correct her sentence pursuant to section 2255, arguing that
under Amendment 794 to the United States Sentencing
Guidelines, which changed the definition of a "minor
participant" under U.S.S.G. § 3B1.2, Fajardo
qualified as a minor participant [D.E. 82]. On February 27,
2017, the government moved to dismiss Fajardo's motion to
vacate [D.E. 87]. As explained below, the court grants the
government's motion to dismiss.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests whether the complaint is
legally and factually sufficient. See Ashcroft v.
Iqbal. 556 U.S. 662, 677-78 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 562-63, 570 (2007);
Coleman v. Md. Court of Appeals. 626 F.3d 187, 190
(4th Cir. 2010), affd. 566 U.S. 30 (2012);
Giarratano v. Johnson 521 F.3d 298, 302 (4th Cir.
2008): accord Erickson v. Pardus, 551 U.S. 89, 93-94
(2007) (per curiam). In considering a motion to dismiss, a
court need not accept as true legal conclusions drawn from
the facts. See, e.g.. Iqbal. 556 U.S. at
678. Similarly, a court "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano, 521 F.3d at 302
(quotation omitted); see Iqbal. 556 U.S. at 677-79.
Moreover, a court may take judicial notice of public records
without converting a motion to dismiss into a motion for
summary judgment. See, e.g.. Fed.R.Evid. 201;
Tellabs, Inc. v. Makor Issues & Rights. Ltd..
551 U.S. 308, 322 (2007); Philips v. Pitt Ctv. Mem'l
Hosp.. 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a
section 2255 motion to vacate, set aside, or correct a
sentence, the court also may consider the motion itself as
well as "the files and records of the case." 28
U.S.C. § 2255(b); see United States v. McGill.
11 F.3d 223, 225-26 & n.1 (1st Cir. 1993).
2255(f) contains a one-year statute of limitations. Section
2255(f) provides that the one-year clock is triggered by one
of four conditions, whichever occurs last:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental 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
(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(t)(1)-(4);see Johnson v. United
States. 544 U.S. 295, 299-300 (2005); Whiteside
v. United States. 775 F.3d 180, 182-83 (4th Cir.
2014) (en banc). A criminal appeal must be filed within
fourteen days after the court enters judgment of conviction.
See Fed. R. App. P. 4(b)(1)(A)(i). If a defendant does not
appeal her judgment, a conviction becomes final for purposes
of section 2255's statute of limitations when the
fourteen-day appeal period expires. See Clay v. United
States, 537 U.S. 522, 532 (2003). But cf United
States v. Sanders. 247 F.3d 139, 142 (4th Cir. 2001)
(holding that a conviction becomes final for purposes of
section 2255's statute of limitations on the date
judgment is entered if a defendant fails to file a direct
judgment of conviction was entered on July 16, 2014 [D.E.
59]. Therefore, under Clay, her judgment became
final on July 31, 2014, and her period within which to file a
section 2255 motion ended on July 31, 2015. See,
e.g.. Clay. 537 U.S. at 532. Fajardo, however, did
not file her section 2255 motion until August 2, 2016 [D.E.
80]. Thus, Fajardo's section 2255 motion is untimely
under section 2255(f). Furthermore, Fajardo has not alleged
that any governmental action prevented her from filing a
timely motion, that her motion is based on a right newly
recognized by the Supreme Court, or that her motion is based
on facts that could not have been discovered earlier through
the exercise of due diligence. Accordingly, Fajardo's
section2255 motion is untimely under section 2255(f).
Fajardo may not bring her claim under section 2255.
Fajardo's section 2255 motion is premised on the
court's failure to apply an offense-level reduction
pursuant to U.S.S.G. § 3B1.2, but a petitioner generally
may not use section 2255 to challenge the calculation of her
advisory guideline range. See United States v.
Foote. 784 F.3d 931, 936-40 (4th Cir. 2015);
United States v. Present. 190 F.3d 279,
283-84 (4th Cir. 1999); see also Whiteside, 775 F.3d
at 183-87; United States v. Mikalajunas, 186 F.3d
490, 495-96 (4th Cir. 1999). Furthermore, Fajardo waived
"all rights to contest [her] conviction or sentence in
any post-conviction proceeding, including one pursuant to 28
U.S.C. § 2255, excepting [a]... motion based upon
grounds of ineffective assistance of counsel or prosecutorial
misconduct not known to [Fajardo] at the time of
[Fajardo's] guilty plea." [D.E. 34] 1-2; see [D.E.
32] (minute entry for Fajardo's Rule 11 hearing).
Fajardo's current motions are not based upon ineffective
assistance of counsel or prosecutorial misconduct, and
Fajardo knowingly and voluntarily entered into her plea
agreement which included the waiver of postconviction rights.
Therefore, because Fajardo's claims are not cognizable
under section 2255 and because Fajardo waived her rights to
initiate these post-conviction proceedings under section
2255, Fajardo has failed to state a claim upon which relief
may be granted under section 2255.
the court were to construe Fajardo's section 2255 motion
as a motion for a sentence reduction under 18 U.S.C. §
3582(c), Fajardo would not be entitled to relief. Only
certain amendments to the Sentencing Guidelines apply
retroactively, and that list does not include Amendment 794,
which updated section 3B1.1. See U.S.S.G. § IB
1.10(a)(2)(A), (d); Kemp v. -United States.
Nos. 7:14-CR-9-FL-2, 7:16-CV-315-FL, 2017 WL 455403, *1 (E.D.
N.C. Feb. 2, 2017) (unpublished).
reviewing the claims presented in Fajardo's motions, the
court finds that reasonable jurists would not find the
court's treatment of Fajardo's claims debatable or
wrong, and that the claims deserve no encouragement to
proceed any further. Accordingly, the court denies a
certificate of appealability. See 28 U.S.C. § ...