United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
J. LODGE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Randi Seferos'
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255. On October 7, 2013, Petitioner plead
guilty to one count of Possession of Methamphetamine with
Intent to Distribute. (1:13-cr-00129-7-EJL, Dkt. 259.) On
March 4, 2014, this Court sentenced Petitioner to a 110-month
term of incarceration with the Bureau of Prisons followed by
a 120-months of supervised release. (Id., Dkt. 530.)
Petitioner did not file a direct appeal.
September 1, 2016, Ms. Seferos filed the instant § 2255
motion. (Dkt. 1.)Her motion seeks relief under Amendment
794, which amended U.S.S.G. § 3B1.2. Amendment 794
changed the language of the commentary to § 3B1.2 to
allow for the broader and more uniform application of the
mitigating role sentencing factor. Ms. Seferos asks that she
be given the benefit of a minor or minimal role, and that she
be given that benefit retroactively and resentenced.
(1:16-cv-00399-EJL, Dkt. 1.) The Court notes Ms. Seferos was
already given the benefit of a two-level reduction for being
a minor participant in the criminal activity, and thus
construes her motion as a request for an additional two-level
reduction for being only a minimal participant.
(1:13-cr-00129-EJL, Dkt. 444, p. 26, ¶ 122.)
Petitioner brings her claim under 28 U.S.C. § 2255, she
has not provided any evidence that she is entitled to relief
under that statute. She does not claim that her sentenced was
rendered without jurisdiction, that her sentence is illegal,
or that her constitutional rights have been infringed.
However, even if Petitioner had claimed appropriate
justification for relief under § 2255, her claim would
Ms. Seferos' motion is untimely under § 2255. Such
motion must be brought within one year from the latest of:
(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(f).
Seferos' judgment became final over two years ago and
passage of Amendment 794 does not restart the clock for the
§ 2255 statute of limitations. Accordingly, Ms.
Seferos' motion is untimely.
a court is generally required to use the guidelines manual in
effect on the date a defendant is sentenced. Dorsey v.
United States, 132 S.Ct. 2321, 2332 (2012); see
also U.S.S.G. § 1B1.11(a) (requiring use of
“the Guidelines Manual in effect on the date that the
defendant is sentenced.”) Further, the United States
Sentencing Commission did not make Amendment 794 retroactive
to all cases. See U.S.S.G. § 1B1.10(d) (2015)
(listing retroactive guideline amendments). Although, in
United States v. Quintero-Leyva, 823 F.3d 519, 523
(2016), the Ninth Circuit held Amendment 794 is a clarifying
amendment that applies retroactively on direct review, it did
not extend this holding to cases like Petitioner's, where
collateral-rather than direct-review is sought.
Ms. Seferos suggests she ought to be given retroactive
benefit of a clarifying amendment issued after she was
sentenced. Such request must be brought as a motion under 18
U.S.C. § 3582, not a § 2255 motion. See
Hamilton v. United States, 67 F.3d 761, 763 (9th Cir.
1995) (holding that a § 2255 claim can only be based on
a claim of lack of jurisdiction, constitutional error, an
error resulting in a “complete miscarriage of justice,
” or “a proceeding inconsistent with the
rudimentary demands of fair procedure.”). Even if the
Court were to construe Petitioner's motion as a §
3582 motion, her claim fails because Amendment 794 is
not retroactive for purposes of a § 3582 motion. See
Quintero-Levya, 823 F.3d at 523 (holding that Amendment
794 was a “clarifying amendment”); United
States v. Stokes, 300 Fed.Appx. 507, 508 (9th Cir. 2008)
(a “clarifying amendment” does not apply
retroactively in a motion for reduction of a sentence under
denying a § 2255 motion, the Court is required to also
determine whether Petitioner is entitled to a certificate of
appealability. Under 28 U.S.C. § 2253 a certificate of
appealability “may issue … only if the applicant
has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
This Court, however, has concluded that Petitioner's
§ 2255 motion is without merit. Thus, for the reasons
set forth above, the Court concludes that Petitioner has ...