United States District Court, E.D. North Carolina, Northern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 123]. The government has moved to dismiss
the petition, [DE 131], petitioner has responded, [DE 137,
138], and the matter is ripe for disposition. For the reasons
discussed below, the government's motion to dismiss is
granted and petitioner's motion is dismissed.
November 14, 2013, petitioner pleaded guilty, pursuant to a
written plea agreement, to conspiracy to commit health care
fraud and wire fraud, in violation of 18 U.S.C. § 1349.
[DE 57, 59]. On May 15, 2014, petitioner was sentenced to a
total of 53 months' imprisonment. [DE 85, 90]. Petitioner
did not appeal his judgment.
August 12, 2016, petitioner filed a motion to vacate under 28
U.S.C. § 2255 alleging that Amendment 794 of the United
States Sentencing Guidelines was retroactively applicable,
resulting in a minor-role reduction of his sentencing range.
[DE 123]. On November 28, 2016, petitioner filed a motion for
summary judgment as to his § 2255 motion, reasserting
the arguments he made in his initial motion. [DE 133].
Respondent filed a motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, arguing that petitioner
has failed to state a claim upon which relief can be granted.
[DE 131]. On December 7, 2016, the Court, upon
respondent's motion and for good cause shown, allowed
respondent to file its motion to dismiss out of time and
deemed the motion timely filed. [DE 135].
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible.'" Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "Under § 2255(b), [u]nless the motion and
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court must grant a
prompt hearing to determine the issues and make findings of
fact and conclusions of law with respect thereto."
United States v. Thomas, 627 F.3d 534, 539 (4th Cir.
2010) (internal quotation omitted). However, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
has identified no basis upon which to his sentence may be
reduced or vacated. Petitioner relies on a recent amendment
to the Sentencing Guidelines, Amendment 794, to argue that he
should be granted relief for having only a minor role in the
offense. However, Amendment 794 is not retroactively
applicable on collateral review. U.S.S.G. § 1B1.10 lists
those Guideline amendments that have been made retroactively
applicable to defendants on collateral review, and Amendment
794 is not listed. Additionally, petitioner has not
identified any court which has applied such amendment
retroactively on collateral review. See, e.g., United
States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir.
2016) (holding that Amendment 794 is retroactively applicable
to cases on direct appeal); United States v.
Perez-Carrillo, No. 7:14-CR-00050, 2016 WL 4524246, at
*1 (W.D. Va. Aug. 26, 2016) ("The United States
Sentencing Commission did not make Amendment 794 retroactive
to all cases."). Consequently, petitioner is not
entitled to relief under Amendment 794 and has failed to
state a claim upon which relief can be granted.
of the Rules Governing Section 2255 Cases provides that
"the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." A certificate of appealability shall not
issue absent "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that an assessment of the
constitutional claims is debatable and any dispositive
procedural ruling dismissing such claims is also debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). As
reasonable jurists would not find this Court's dismissal
of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
for the foregoing reasons, respondent's motion to dismiss
[DE 131] is GRANTED, petitioner's motion to vacate
pursuant to 28 U.S.C. § 2255 [DE 123] is DISMISSED, and
petitioner's motion for summary ...