Dodson v. USA

Filing 7

ORDER DISMISSING CASE with prejudice, denying 28 U.S.C. Section 2255 petition and declining to issue certificate of appealability. The Court DIRECTS the Clerk of the Court to issue judgment. Signed by Judge David R. Herndon on 11/10/16. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DENISE DODSON,
Petitioner,
v.

No. 16-1044-DRH

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
This matter is before the Court on Dodson’s motion to vacate, set aside, or
correct sentence, pursuant to 28 U.S.C. § 2255 (Docs. 1).

The government

opposes the motion (Doc. 3). Based on the following, the Court denies the motion.
Further, having closely examined the record, the Court concludes that an
evidentiary hearing is not necessary in this matter. 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; Cooper v. United States, 378 F.3d 638, 641–42 (7th Cir. 2004) (district court
did not abuse its discretion in denying petitioner an evidentiary hearing where
petitioner did not provide additional facts or assertions that would warrant a
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hearing).

Id. at

649. The

decision

is

a

discretionary

one. Id. at

653; Jackson, 953 F .2d at 1071.
On April 23, 2014, the grand jury charged Dodson with conspiracy to commit
bank robbery and bank robbery in an indictment. See United States v. Dodson,
14-CR-30066-DRH, Doc. 1. On August 19, 2015, without the benefit of a plea
agreement, Dodson plead guilty to the charges in the indictment. Id. at 56, 57 &
58. On October 9, 2015, the Court sentenced Dodson to 60 months imprisonment
on Count 1 and 70 months on Count 2 to run concurrently. Id. at 65 & 69. Prior
to the sentencing, Dodson filed objections to the Presentence Investigation Report
(“PSR”) arguing for a decrease in offense level for a mitigating role in the offense.
During sentencing, the Court overruled that objection and declined to apply a
mitigating role adjustment. Dodson did not appeal her sentence or conviction.
On September 16, 2016, Dodson filed this Section 2255 petition arguing in
three claims that she is entitled to a “minor role” reduction based on a recent
amendment to the advisory federal sentencing guidelines manual. Specifically,
Dodson relies on Amendment 794 which amended § 3B1.2 of the United States
Sentencing Guidelines and took effect on November 1, 2015 (after Dodson’s
sentencing and judgment). The government opposes the motion (Doc. 3). The
Court turns to the merits of the motion.
28 U.S.C. § 2255 Standard
“[R]elief under § 2255 is an extraordinary remedy because it asks the district
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court essentially reopen the criminal process to a person who already has had an
opportunity for full process.”
Cir. 2007).

Almonacid v. United States, 476 F.3d 518, 521 (7th

Under Section 2255, relief “is available when the ‘sentence was

imposed in violation of the Constitution or laws of the United States,’ the court
lacked jurisdiction, the sentence was greater than the maximum allowed by law, or
it is otherwise subject to collateral attack.”

Torzala v. United States, 545 F.3d

517, 521 (7th Cir. 2008)(quoting 28 U.S.C. § 2255). A Section 2255 motion is not
a substitute for a direct criminal appeal nor is it a means by which a defendant may
appeal the same claims a second time. See Varela v. United States, 481 F.3d 932,
935 (7th Cir. 2007)(Section 2255 motion is “neither recapitulation of nor a
substitute for a direct appeal.”)(citation omitted).

As such, if a Section 2255

petitioner does not raise a claim on direct appeal, that claim is barred from the
Court’s collateral review unless the petitioner can demonstrate cause for the
procedural default and actual prejudice from the failure to appeal. See Sandoval

v. United States, 574 F.3d 847, 850-51 (7th Cir. 2009); Torzala, 545 F.3d at 522.
Analysis
In this case, Amendment 794 is not applicable to persons already sentenced.
Sentencing courts utilize the Guideline manuals in effect on the date the defendant
is sentenced. U.S.S.G § 1B1.11. The applicable policy statements provide that a
reduction is authorized only when a retroactively applicable Guideline amendment
has “the effect of lowering the defendant’s applicable guideline range.” U.S.S.G §
1B1.10(a)(2)(B).

Section 1B1.10 lists all Guideline Amendments that the
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Sentencing commission has made retroactively applicable to defendants on
collateral review, rather than direct appeal, and Amendment 794 is not listed in §
1B1.10 as retroactively applicable. Because Amendment 794 is not retroactively
applicable, Dodson is not entitled to relief and her motion must be denied.
Dodson has not shown that her sentence was “imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255.
Thus, the Court rejects Dodson’s 28 U.S.C. § 2255 petition/motion. Finally, the
Court notes that letting Dodson’s conviction and sentence stand would not result in
a fundamental miscarriage of justice.

Murray v. Carrier, 477 U.S. 478, 495

(1986).
Under the 2009 Amendments to Rule 11(a) of THE RULES GOVERNING SECTION
2255 PROCEEDINGS, the “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Thus, the Court
must determine whether petitioner’s claims warrant a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2).
A habeas petitioner does not have an absolute right to appeal a district
court’s denial of his habeas petition; he may appeal only those issues for which a
certificate of appealability have been granted.

See Sandoval, 574 F.3d at 852. A

habeas petitioner is entitled to a certificate of appealability only if he can make a
substantial showing of the denial of a constitutional right.
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Miller-El v. Cockrell,

537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2). Under this standard, petitioner
must demonstrate 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.’” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Where a district court denies a habeas petition on procedural grounds, the
court should issue a certificate of appealability only if (1) jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. See Slack, 529 U.S. at 485.
As to petitioner’s claims, the Court finds that reasonable jurists would not
debate that the petition does not present a valid claim of the denial of a
constitutional right, or that this Court is barred from reviewing the merits of
petitioner’s claim.

Reasonable jurists could not debate that the petition should

have been resolved in a different manner. Therefore, the Court declines to certify
any issues for review pursuant to 28 U.S.C. § 2253(c).

Conclusion
Accordingly, the Court DENIES Dodson’s motion under 28 U.S.C. § 2255
motion to vacate, set aside or correct sentence by person in federal custody. The
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Court DISMISSES with prejudice this cause of action. The Court ORDERS the
Clerk of the Court to enter judgment reflecting the same.

Further, the Court

DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.
.
Signed this 10th day of November, 2016.

Digitally signed by
Judge David R.
Herndon
Date: 2016.11.10
16:23:05 -06'00'

United States District Court

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