United States District Court, E.D. North Carolina, Southern 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 413, 417]. The government has moved to
dismiss the petition, [DE 420], petitioner has responded, [DE
432], 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 17, 2014, petitioner pleaded guilty, pursuant to a
written plea agreement, to conspiracy to distribute a
quantity of heroin, in violation of 21 U.S.C. § 846. [DE
156 at 4]. On November 13, 2015, the Court sentenced
petitioner to 24 months' imprisonment and 3 years'
supervised release. [DE 340]. Petitioner did not appeal her
August 8, 2016, petitioner filed the instant motion under
§ 2255. [DE. 413]. Petitioner re-filed a signed version
of that motion on August 23, 2016. [DE 417]. Petitioner
argues that her sentence should be reduced in light of an
amendment to the sentencing guidelines. [DE 413 at 4; DE 417
at 4]. The government moved to dismiss the motion pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief may be granted. [DE 420].
Petitioner responded, asserting again that she is entitled to
the sentence reduction and moving for leave to file a motion
under 18 U.S.C, § 3582(c)(2). [DE 432].
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
BellAtl. 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 determincthe 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 her sentence may be
reduced or vacated. First, petitioner's motion amounts to
a challenge to her advisory guideline range, and such a
challenge is not cognizable on collateral review. United
States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015)
(discussing United States v. Foote, 784 F.3d 931,
932-33 (4th Cir. 2015). Additionally, petitioner relies on a
recent amendment to the Sentencing Guidelines, Amendment 794,
to argue that she 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 420] is GRANTED and petitioner's motion to vacate
pursuant to 28 U.S.C. § 2255 [DE 413, 417] ...