Attaway v. USA

Filing 2

MEMORANDUM AND ORDER, The Court DENIES Ms. Attaway's § 2255 Motion (Doc. 1) and DISMISSES this action. The Court DIRECTS the Clerk of Court to enter judgment accordingly. The Court DENIES a certificate of appealability. Signed by Judge J. Phil Gilbert on 9/21/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ASHLEY M. ATTAWAY,
Petitioner,
vs.

Case No. 16-cv-01047-JPG

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This 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.
1. Background
On May 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. 13cr-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 fine1. (Doc. 98, 13-cr-40118). The Court found that there were no aggravating or
mitigating role adjustments. (Doc. 91, 13-cr-40118).

1

The 2013 United States Sentencing Guidelines, incorporating all guideline amendments, was used to calculate
defendant’s offense level and recommended sentencing range.

Ms. 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.
2. Analysis
The 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.
Amendment 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

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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.
3. Certificate of Appealability
Having 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
Seventh Circuit.
4. Conclusion.
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.
Based on the above, this Court DENIES Ms. Attaway's § 2255 Motion (Doc. 1) and
DISMISSES this action.

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The Court DIRECTS the Clerk of Court to enter judgment accordingly. Further, the
Court DENIES a certificate of appealability.
IT IS SO ORDERED.
DATED: 9/21/2016

s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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