United States District Court, S.D. Ohio, Western Division
OPINION AND ORDER
Michael R. Barrett Judge
matter is before the Court on Petitioner Dorothy Clisby's
pro se Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence. (Doc. 212). The United States
has filed a Response in Opposition. (Doc. 214).
plead guilty to one count of Conspiracy to Possess with
Intent to Distribute Heroin in Excess of One Kilogram. On
July 28, 2014, this Court sentenced Petitioner to 100 months
of imprisonment and 15 years of supervised release. (Doc.
151). Petitioner filed an appeal, but later voluntarily
withdrew the appeal. (Docs. 177, 184). The appeal was
dismissed on August 27, 2014. (Id.)
November 3, 2016, Petitioner filed her Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence.
Petitioner asserts one ground for relief in her Motion: she
is entitled to a sentence reduction under Amendment 794 to
Sentencing Guideline § 3B1.2 for having a minor role in
prisoner seeking relief under 28 U.S.C. § 2255 must
allege either “(1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” Mallett v. United States, 334 F.3d
491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir. 2001)).
November 1, 2015 -- over a year after Petitioner was
sentenced --Amendment 794 took effect. Amendment 794
clarified the circumstances in which U.S.S.G § 3B1.2 may
be applied to reduce a defendant's offense level if the
defendant played only a minimal or minor role in the
offense. Because Amendment 794 is a clarifying
amendment, it has been held to apply retroactively to cases
on direct appeal. United States v. Carter, 662
Fed.Appx. 342, 349 (6th Cir. 2016) (citing United States
v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016)).
However, “[w]here, as here, a defendant did not
challenge [her] sentence on direct appeal, a clarifying
amendment may provide the basis for § 2255 relief only
if it brings to light a ‘complete miscarriage of
justice.'” Diaz v. United States, No.
16-6834, 2017 WL 6569901, at *1 (6th Cir. June 23, 2017)
(quoting Grant v. United States, 72 F.3d 503, 506
(6th Cir. 1996)). While Petitioner did object to certain
calculations in the PSR - including an adjustment for the
role she played in the offense - counsel for Petitioner
withdrew the objection regarding the role in the offense
during the sentencing hearing. (Doc. 136, PAGEID #541; Doc.
203, PAGEID # 917-18). The failure to press the issue when
given the opportunity to do so impairs Petitioner's
argument that justice requires retroactive application of the
amendment. Accord United States v. Lee, No. CR
6:13-045-DCR, 2016 WL 6699139, at *2 (E.D. Ky. Nov. 14,
2016). Therefore, Petitioner is not entitled to § 2255
addition, the Sixth Circuit has explained that Amendment 794
is not among those the Sentencing Commission has designated
for retroactive effect on collateral review. Diaz v.
United States, No. 16-6834, 2017 WL 6569901, at *2 (6th
Cir. June 23, 2017) (citing U.S.S.G. § 1B1.10(d)).
Therefore, Petitioner would not be eligible for relief even
if her motion was construed as a request for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2). See
to 28 U.S.C. § 2255(b), the Court determines that the
instant motion and the files and records of this case, in
conjunction with review of the files and record, conclusively
show that Petitioner is not entitled to relief. Therefore, a
hearing is not necessary to determine the issues and make the
findings of fact and conclusions of law with respect thereto.
Accord Smith v. United States, 348 F.3d 545, 550-51
(6th Cir. 2003). The claims raised are conclusively
contradicted by the record and the law of the Sixth Circuit
and the United States Supreme Court. Accordingly,
Petitioner's Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Doc. 212) is hereby
the Court will not issue a certificate of appealability. The
Court concludes that the claim raised by Petitioner in her
motion, which has been decided on the merits, is not
debatable among reasonable jurists, could be resolved
differently on appeal or is adequate to deserve encouragement
to proceed further. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000) (citing Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)). In addition, Petitioner has not
made a substantial showing of the denial of a constitutional
right. See 28 U.S.C. § 2253(c); see
also Fed. R. App. P. 22(b).
IS SO ORDERED.
Amendment 794 added the following
language to Application Note 3(C) to U.S.S.G. §
In determining whether to apply subsection (a) or (b),
or an intermediate adjustment, the court should consider the