United States District Court, S.D. Illinois
ASHLEY M. ATTAWAY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on petitioner Ashley M.
Attaway'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. Attaway's motion.
29, 2014, Ms. Attaway pleaded guilty to one count of
conspiracy to distribute methamphetamine in violation of 21
U.S.C. § 846. See United States v. Attaway,
Case No. 13-cr-40118-JPG-2 (Doc. 78). On September 11, 2014,
the undersigned Judge sentenced Ms. Attaway to 188 months
imprisonment, five years supervised release, a $100 special
assessment, and a $100 fine. (Doc. 98, 13-cr-40118). The
Court found that there were no aggravating or mitigating role
adjustments. (Doc. 91, 13-cr-40118).
Attaway's § 2255 motion argues that Amendment 794
with regard to a mitigating role reduction should be applied
retroactively to her sentence. There are no addition facts
and/or arguments within her motion.
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. Attaway 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 with regard to
Ms. Attaway's participation in the offense. See
U.S.S.G § 1B1.11.
Certificate of Appealability
denied Ms. Attawy'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. Attaway has made no
such showing. Therefore, the Court denies a certificate of
appealability. Pursuant to Rule 11(a), Ms. Attaway may not
appeal the denial of a certificate of appealability, but she
may seek a certificate from the Court of Appeals for the
Court notes that Ms. Attaway's motion appears to be a
standard format with her name inserted. The Court has
received several of these motions within the past month and
all have incorrectly asserted that Amendment 794 applies
retroactively. The Court is concerned that this standard
motion is being distributed throughout the petitioner's
facility and warns that by filing this motion, the petitioner
has subjected herself to the second or successive filing
requirements contained in 28 U.S.C. § 2255, ¶ 8.
on the above, this Court DENIES Ms. Attaway's § 2255
Motion (Doc. 1) and DISMISSES this action.
Court DIRECTS the Clerk of Court to enter judgment
accordingly. Further, the Court DENIES ...