United States District Court, E.D. North Carolina, Eastern 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 32, 37]. The government has moved to dismiss
the petition, [DE 40], 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.
March 25, 2015, petitioner pleaded guilty, pursuant to a
written plea agreement, to conspiracy to distribute and
possess with the intent to distribute 500 grams or more of
cocaine, 28 grams or more of cocaine base (crack), and a
quantity of marijuana, in violation of 21 U.S.C. § 846.
[DE 15, 17]. On July 9, 2015, the Court sentenced petitioner
to 72 months' imprisonment and 5 years' supervised
release. [DE 25, 26]. Petitioner did not pursue a direct
appeal. On October 31, 2016, petitioner filed the instant
motion under 28 U.S.C. § 2255. [DE 32, 37]. Petitioner
raises two claims: (1) that her sentence should be reduced in
light of an amendment to the sentencing guidelines [DE 37 at
4]; and (2) that her criminal history category was
incorrectly calculated as part of the process of establishing
petitioner's advisory guidelines range [DE 37 at 5]. The
government responded, arguing that the motion should be
dismissed for failure to state a claim upon which relief can
be granted. [DE 33].
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 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 her sentence may be
reduced or vacated. Petitioner, in her first claim for
relief, 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. Petitioner's
second claim 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).
these reasons, petitioner cannot state a claim upon which
relief may be granted and her § 2255 petition is
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 40] is. GRANTED and petitioner's motion to vacate
pursuant to 28 U.S.C. § 2255 [DE 32, 37] ...