Lopez v. USA

Filing 5

MEMORANDUM OPINION: For the reasons set forth above, the Court holds petitioner's conviction and sentencing were not in violation of the Constitution or laws of the United States. Accordingly, her motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255, [Doc. 667], will be DENIED and her motion DISMISSED. Signed by District Judge J Ronnie Greer on 01/09/2019. (Copy of Memo mailed to June Lopez) (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
JUNE GEMINI LOPEZ,
Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

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Nos. 2:13-CR-37(12)
2:16-CV-329

MEMORANDUM OPINION
This matter is before the Court on the “Motion To Vacate, Set Aside, Or Correct A
Sentence Pursuant to 28 U.S.C. § 2255,” [Doc. 667], 1 filed by June Gemini Lopez (“Lopez” or
“petitioner”). Petitioner filed a supplement to her § 2255 motion on March 27, 2017. [Doc. 677].
The United States has responded in opposition, [Doc. 715]. The matter is now ripe for disposition.
The Court has determined that the files and records in the case conclusively establish that the
petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary.
For the reasons which follow, the petitioner’s § 2255 motion lacks merit, and the motion will be
DENIED.
I.

FACTUAL BACKGROUND
A sealed eight-count superseding indictment was filed on June 11, 2013, [Doc. 55],

charging petitioner and 13 co-defendants with conspiracy to distribute and possess with the intent
to distribute 280 grams or more of cocaine base (“crack”) in violation of 21 U.S.C. §§ 846 and
841(a)(1), 841(b)(1)(A) (Count One). Some of petitioner’s co-defendants were charged in the

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All references are to docket entries in Case No. 2:13-CR-37 unless otherwise indicated.

remaining counts of the indictment with additional drug offenses, (Counts Two-Six), as well as
possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A) (Count Seven), and money laundering in violation of 18 U.S.C. § 1956(h) (Count
Eight).
A plea agreement was filed on September 24, 2013, [Doc. 135], in which petitioner agreed
to plead guilty to the lesser included offense of Count One, that is, conspiracy to distribute and
possess with the intent to distribute 28 grams or more of cocaine base (“crack”). Petitioner’s
change of plea hearing was held November 1, 2013. Following multiple continuances, petitioner’s
sentencing hearing was held on March 11, 2015. Petitioner was sentenced to 78 months of
imprisonment to be followed by an 8 year term of supervised release. [Doc. 572]. Petitioner’s
judgment was entered on March 23, 2015. Petitioner’s instant motion to vacate was filed on
October 25, 2016. [Doc. 667]. Petitioner refiled the motion with only slight variations on March
27, 2017. [Doc. 677].
II.

STANDARD OF REVIEW
This Court must vacate and set aside petitioner’s sentence if it finds that “the judgment was

rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise
open to collateral attack, or that there has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable to collateral attack. . . .” 28 U.S.C.
§ 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face
of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal
the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the
court may summarily dismiss the § 2255 motion under Rule 4.

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When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief.
Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O’Malley v. United States, 285 F.2d 733, 735
(6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of
verity, are not sufficient to warrant a hearing.” O’Malley, 285 F.2d at 735 (citations omitted). A
motion that merely states general conclusions of law without substantiating allegations with facts
is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v.
Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996). To warrant relief under 28 U.S.C. § 2255
because of constitutional error, the error must be one of constitutional magnitude which had a
substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F. 3d 352, 354 (6th
Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht
to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and
must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir. 1978), cert. denied,
439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a
fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an
egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512
U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996), cert. denied, 517
U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a
significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152
(1982).
III.

ANALYSIS
Petitioner’s sole claim in her § 2255 motion is that she is entitled to a “sentence reduction

pursuant to the retroactive [A]mendment 794.” [Doc. 667 at 1]. Amendment 794 clarifies when a

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defendant may be eligible for a minor-role reduction, requiring that courts consider whether a
defendant engages in activity “that makes him substantially less culpable than the average
participant.” USSG app. C, amend. 794 (2015). Petitioner argues that she is “‘substantially less
culpable’ than the co-defendants [in] her case” because she was “a user[,] not a dealer.” [Doc. 667
at 2]. In response, the government argues that petitioner’s claim is untimely, precluded by the
waiver provision in her plea agreement, and substantively without merit, as Amendment 794 has
not been designated as a retroactive amendment by the U.S. Sentencing Commission. [Doc. 715].
First, the Court must determine whether petitioner’s § 2255 petition is timely filed. 28
U.S.C. § 2255 provides, in relevant part:
A 1-year period of limitations shall apply to a motion under this section. The
limitation period shall run from the latest of –
(1) the date on which the judgment of conviction became final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental actions;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4).

There is no dispute that petitioner’s § 2255 petition was filed over a

year after her judgment became final. Since the judgment of conviction was entered on March 23,
2015, the judgment became final when the defendant’s right to appeal his sentence expired, that
is, April 6, 2015. Petitioner’s motion to vacate pursuant to § 2255 was not filed until October 25,
2016, nearly a year and a half after the judgment became final.

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Petitioner, however, attempts to demonstrate that her motion is proper pursuant to the
enumerated paragraph (3), above. Petitioner requests a sentence reduction “pursuant to the
retroactive [A]mendment 794 to the U.S.S.G. specified under United States v. Quintero-Leyva,
[823 F.3d 519 (9th Cir. 2016)] and pursuant to 28 U.S.C. § 2255.” [Doc. 667]. Petitioner is correct
that on November 1, 2015, Guideline § 3B1.2 (pertaining to the mitigating role adjustment) was
modified by Amendment 794. See USSG app. C, amend. 794 (2015). This Amendment therefore
went into effect after petitioner was sentenced. However, as discussed below, Amendment 794
has not been made retroactive by the Supreme Court, and therefore renders petitioner’s motion
untimely and her claim without merit.
Federal courts are forbidden, as a general matter, to modify a term of imprisonment once
it has been imposed, but the rule of finality is subject to a few narrow exceptions.” Freeman v.
United States, 131 S. Ct. 3685, 2690 (2011) (internal citation and quotation marks omitted).
Section 3582(c) provides that a “court may not modify a term of imprisonment once it has been
imposed except” in three limited circumstances. 18 U.S.C. § 3582(c). First, upon motion of the
Director of the Bureau of Prisons, a court may reduce the term of imprisonment if it finds special
circumstances exist. 18 U.S.C. § 3582(c)(1)(A)(i), (ii). Second, a court may modify a sentence if
such modification is “otherwise expressly permitted by statute or by Rule 35 of the Federal Rules
of Criminal Procedure.” Id. § 3582(c)(1)(B). Finally, a court may modify a sentence if “a
sentencing range . . . has subsequently been lowered by the Sentencing Commission pursuant to
28 U.S.C. 994(o).” 18 U.S.C. § 3582(c)(2).
As noted above, § 3582(c) authorizes a reduction for a defendant “who has been resentenced
to a term of imprisonment based on a sentencing range that has been subsequently lowered by the
Sentencing Commission pursuant to 28 U.S.C. § 994(o) . . ., if such a reduction is consistent with

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applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
“Section 1B1.10 of the Sentencing Guidelines contains the policy statement for § 3582(c)(2).
Subsection 1B1.10(a) provides that the court may reduce the defendant’s term of imprisonment if
the applicable guideline range has subsequently been lowered by one of the amendments named in
subsection (d).” United States v. Bonds, 839 F.3d 524, 529 (2016). Because Amendment 794 is
not listed in USSG § 1B1.10(d), it does not apply retroactively under § 3582(c)(2). See United
States v. Watkins, 655 F. App’x 478, 479 (6th Cir. 2016) (“if no amendment listed in § 1B1.10(d)
lowers the defendant’s ‘applicable guideline range’, then a sentence reduction is inconsistent with
§ 1B1.10 and, therefore, not authorized by § 3582(c)(2).”) (citing USSG § 1B1.10(a)(2)(B)).
Amendment 794 has also not been held to be retroactively applicable for cases on collateral review
by the Supreme Court.
Petitioner argues that United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016) applies
to her case and allows for retroactive application of Amendment 794. However, the Ninth Circuit
held only that Amendment 794 applied retroactively on direct appeal. See Johnson v. United States,
2016 WL 6084018 at *2 (S.D. Ohio Oct. 17, 2016) (finding that Quintero-Leyva “did not hold that
such [retroactive] relief [under Amendment 794] is available on collateral review, and other courts
have concluded that it is not.”). Petitioner’s § 2255 motion seeks collateral review of her sentence,
and therefore Quintero-Leyva does not apply to her case. Petitioner’s argument that she is entitled
to a sentence reduction pursuant to Amendment 794 is without merit.
Petitioner’s argument for a minor role reduction under Amendment 794 is her only claim
for relief in her § 2255 petition. In her accompanying letter, 2 she requests that the Court appoint

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Petitioner’s letter attached to her § 2255 motion also explains that a detainer issued by Sullivan County is
preventing her from receiving a sentence reduction for participating in the Residential Drug Abuse Program
(“RDAP”), and from receiving placement in a halfway house. This Court, however, has no jurisdiction to provide
relief to the petitioner in this matter, as it is clearly settled that after a defendant is sentenced, the Bureau of Prisons,

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her counsel as she pursues her claim. However, a defendant’s constitutional right to counsel does
not extend to postconviction collateral attacks. See Pennsylvania. Finley, 481 U.S. 551, 555
(1990); Johnson v. Avery, 393 U.S. 483, 487-88 (1969). Further, petitioner’s sole claim does not
state a claim for relief that the Court can grant and is meritless. For those reasons, petitioner’s
request for appointment of counsel is likewise DENIED.
IV.

CONCLUSION
For the reasons set forth above, the Court holds petitioner’s conviction and sentencing were

not in violation of the Constitution or laws of the United States. Accordingly, her motion to vacate,
set aside or correct her sentence pursuant to 28 U.S.C. § 2255, [Doc. 667], will be DENIED and
her motion DISMISSED.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit Court of Appeals disapproves of the issuance of blanket denials of certificates of
appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). The district court must “engage in
a reasoned assessment of each claim” to determine whether a certificate is warranted. Id. at 467.
Each issue must be considered under the standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000). Id.
A certificate of appealability should issue if petitioner has demonstrated a “substantial
showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To warrant a grant of the
certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s

not the district judge, has authority to determine when a sentence is deemed to commence, whether defendant should
be awarded credit for good time, and the place of confinement. 18 U.S.C. §§ 3585(a) and (b), 3621(b), 3624(b). These
statements in petitioner’s letter do not relate to her claim for relief under § 2255, and do not raise a claim under which
the Court can provide relief.

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assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473
(2000). Having examined each of petitioner’s claims under the Slack standard, the Court finds
that reasonable jurists could not find that the dismissal of his claims was debatable or wrong.
Therefore, the Court will DENY a certificate of appealability.
A separate judgment will enter.
ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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