United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge
matter is now before the Court on Petitioner Maneno’s
§ 2255 Motion to Vacate, Set Aside, or Correct Sentence
and Motion for Leave to File an Amended Motion. For the
reasons set forth below, Petitioner’s Motion  is
filed this § 2255 action seeking to vacate, set aside,
or correct her sentence seeking a reduction in sentence for
her “minor role” in her criminal conduct.
Although she cites no authority in support of her contention,
the Court presumes that she is referring to a role reduction
pursuant to Amendment 794 to the Sentencing Guidelines and
the Ninth Circuit opinion in United States v.
Quintero-Leyva, 823 F.3d 519 (2016). Petitioner pled
guilty to conspiracy to manufacture methamphetamine and was
sentenced to 60 months’ imprisonment in May 2015. She
did not pursue a direct appeal.
petitioner may avail herself of § 2255 relief only if
she can show that there are “flaws in the conviction or
sentence which are jurisdictional in nature, constitutional
in magnitude or result in a complete miscarriage of
justice.” Boyer v. United States, 55 F.2d 296,
298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995).
Section 2255 is limited to correcting errors that
“vitiate the sentencing court’s jurisdiction or
are otherwise of constitutional magnitude.” Guinan
v. United States, 6 F.3d 468, 470 (7th Cir. 1993),
citing Scott v. United States, 997 F.2d 340 (7th
Cir. 1993). A § 2255 motion is not, however, a
substitute for a direct appeal. Doe v. United
States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116
S.Ct. 205 (1995); McCleese v. United States, 75 F.3d
1174, 1177 (7th Cir. 1996). Federal prisoners may not use
§ 2255 as a vehicle to circumvent decisions made by the
appellate court in a direct appeal. United States v.
Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698.
Petitioner claims in her § 2255 Motion that her sentence
is invalid because Amendment 794 to the Sentencing Guidelines
entitles her to a reduction for having played a minor role in
the offense. Initially, the Court notes that errors in the
application of the sentencing guidelines cannot be raised in
2255 motions as long as a defendant’s sentence is
within the range provided by the statute of offense.
United States v. Wisch, 275 F.3d 620, 625 (7th Cir.
2001) (holding that sentencing guideline calculation errors
are nonconstitutional and are therefore not reviewable in
Amendment 794 became effective on November 1, 2015, and
applies to U.S.S.G. § 3B1.2 to arguably make it easier
for a defendant to qualify for a mitigating role in the
offense and receive a lower sentence. However, Amendment 794
has not been made retroactive to cases on collateral review.
Even in Quintero-Leyva, the Ninth Circuit only extended the
change to apply to cases pending on direct appeal and
specifically declined to address whether the amendment was
available to defendants who had exhausted their direct
appeal. 823 F.3d at 521, n. 1. Assuming that the Seventh
Circuit agrees that Amendment 794 is applicable on direct
review, this would still not allow Petitioner to benefit from
the decision as her direct appeal became final months before
the amendment became effective.
Petitioner is not entitled to relief at this time. The case
is dismissed without prejudice to refiling if and when
Amendment 794 is made retroactive to afford relief on
obtain a certificate of appealability, a petitioner must make
“a substantial showing of the denial of a
constitutional right.” 28 U.S.C § 2253(c)(2). The
petitioner must also show that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
the claims are based on an erroneous interpretation of the
holding in Quintero-Leyva as well as the applicability of
Amendment 794. No reasonable jurist could conclude that
Petitioner’s claims were not either devoid of factual
support or premature at ...