United States District Court, S.D. Illinois
LIBBY J. FRENCH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on petitioner Libby J.
French's Motion to Vacate, Set aside or Correct Sentence
pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government
has not filed a response and the time for doing so has not
expired. However, a response from the government is not
required by the Court. For the following reasons, the Court
denies Ms. French's motion.
March 28, 2013, pursuant to a plea agreement, Ms. French
pleaded guilty to one count of conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. § 846 and one
count of maintaining a place to manufacture methamphetamine
in violation of 21 U.S.C. § 856(a)(1). See United
States v. French, Case No. 12-cr-40104 (Doc. 48). On
July 25, 2013, the undersigned Judge sentenced Ms. French to
87 months imprisonment, four years supervised release, a $200
special assessment, and a $300 fine. (Doc. 71, 12-cr-40104).
Although the Court found that Ms. French was substantially
involved in the process, there was no aggravating or
mitigating role adjustment. (Doc. 62, 12-cr-40104). However,
the Court did consider mitigating circumstances in awarding
Ms. French a below the advisory guideline range sentence.
(Doc. 78, 12-cr-40104 Ms. French did not file a direct
French's § 2255 motion argues that Amendment 794
with regard to a mitigating role reduction should be applied
retroactively to her sentence. She also argues that her
sentence should be reduced since she did not receive any
personal financial gain and only participated in the offenses
due to her addiction.
Court must grant a § 2255 motion when a defendant's
“sentence was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255.
However, “[h]abeas corpus relief under 28 U.S.C. §
2255 is reserved for extraordinary situations.”
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996). “Relief under § 2255 is available only for
errors of constitutional or jurisdictional magnitude, or
where the error represents a fundamental defect which
inherently results in a complete miscarriage of
justice.” Kelly v. United States, 29 F.3d
1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper
to deny a § 2255 motion without an evidentiary hearing
if, “the motion and the files and records of the case
conclusively demonstrate that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b); see Sandoval v.
United States, 574 F.3d 847, 850 (7th Cir. 2009). No
evidentiary hearing has been conducted in this matter as the
records and files clearly demonstrate that Ms. French is not
entitled to any relief.
794 to the United States Sentencing Guidelines became
effective on November 1, 2015. Although Amendment 794 has
been held retroactive on direct appeal, it has not been held
retroactive for collateral review. See U.S.S.G
§§ 1B1.10(d)(listing covered amendments for
retroactivity); U.S. v. Quintero-Leyva, 823 F.3d.
519, 521 nt 1 (9th Cir. 2016)(holding that
Amendment 794 applies retroactively in direct appeals, but
declining to determine whether the amendment applies to
“a defendant who has exhausted his direct appeal can
move to reopen sentencing proceedings.”). The
petitioner has not cited to any controlling case law that
Amendment 794 applies retroactively. As such, the Court
properly used the sentencing guideline manual in effect on
the date of the petitioner's sentencing. See
U.S.S.G § 1B1.11.
Court is unsure of the second argument within the
petitioner's § 2255 motion stating that she received
no financial gain. “[T]he degree to which the defendant
stood to benefit from the criminal activity” would be a
consideration for the Court if Amendment 794 had applied
retroactively to the petitioner. See U.S.S.G §
3B1.2 (application note 3(C)(v)). However, since the
amendment does not apply, the assertion that the petitioner
received no financial gain does not indicate an error of
constitutional or jurisdictional magnitude that would warrant
relief under § 2255.
the Court has reviewed the correspondence attached to the
petitioner's § 2255 motion. The Court commends the
petitioner for completing the Residential Drug Abuse Program
and her participation in continuing education while
incarcerated. However, while these efforts are commendable,
they are not a basis for relief under § 2255.
Certificate of Appealability.
denied Ms. French's motion, the Court must grant or deny
a certificate of appealability. See Rule 11(a) of
the Rules Governing Section 2255 Proceedings for the United
States District Courts; 28 U.S.C. § 2253(c). Section
2253(c)(2) provides that a certificate of appealability may
issue only if a petitioner has made a substantial showing of
the denial of a constitutional right. Ms. French has made no
such showing. Therefore, the Court denies a certificate of
appealability. Pursuant to Rule 11(a), Ms. French may not
appeal the denial of a certificate of appealability, but she
may seek a certificate from the Court of Appeals for the
this Court DENIES Ms. French's § 2255 Motion (Doc.
1) and DISMISSES this action. The Court DIRECTS the Clerk of
Court to enter judgment accordingly. ...