Opinion
CRIMINAL ACTION FILE NO. 4:03-CR-70-1-HLM-WEJ CIVIL ACTION FILE NO. 4:16-CV-249-HLM-WEJ
08-26-2016
MARIA BERNABE, BOP ID 55379-019, Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. § 2255 FINAL REPORT AND RECOMMENDATION
Proceeding pro se, Maria Bernabe filed on August 15, 2016, a "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" [50] ("§ 2255 Motion") and a "Motion for Minor Role Adjustment And Sentence Reduction Based on United States v. Quitero-Leyva and Pursuant to Amendment 794 and 28 U.S.C. § 2255" [51] ("Sentence Reduction Motion"). The Honorable Harold L. Murphy (A) kept the Sentence Reduction Motion in Chambers and ordered the United States to respond, see Order of Aug. 15, 2016 [52], and (B) referred the § 2255 Motion to the undersigned.
In her § 2255 Motion, Ms. Bernabe "seeks a sentence reduction for a minor role pursuant to [United States Sentencing Guideline §] 3B1.2's [A]mendment 794." § 2255 Motion at Ground One. This is not a claim appropriately brought pursuant to § 2255.
Simply put: "Section 2255 does not provide a remedy for every alleged error in conviction and sentencing." Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 2836 (2015). Consequently, this Court lacks the authority to review a claim brought in a § 2255 motion "unless the claimed error constitute[s] 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). "A misapplication of advisory sentencing guidelines" falls short of this standard because it "does not violate an 'ancient' right, nor does it raise constitutional concerns." Spencer, 773 F.3d at 1140. Rather, "[a] prisoner may challenge a sentencing error as a 'fundamental defect' on collateral review [only] when [s]he can prove that [s]he is either actually innocent of [her] crime or that a prior conviction used to enhance [her] sentence has been vacated." Id. at 1139. Because Ms. Bernabe alleges neither of these things, her sentence reduction claim cannot be brought under § 2255. Ms. Bernabe should pursue the relief she has requested through her Sentence Reduction Motion.
Because it is "plainly apparent from the motion . . . that the moving party is not entitled to relief [under § 2255]," this Court "must dismiss the motion." 28 U.S.C. foll. § 2255, Rule 4(b). Accordingly, the undersigned RECOMMENDS that Ms. Bernabe's § 2255 Motion be DISMISSED.
Because Ms. Bernabe has not identified any reasonably debatable ground for relief, she does not meet the requisite standard for issuance of a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (requiring a two-part showing (1) "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," and (2) "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); see also Spencer, 773 F.3d at 1138 (holding that the Slack v. McDaniel standard will be strictly applied prospectively). Accordingly, the undersigned RECOMMENDS that a Certificate of Appealability be DENIED.
The Clerk is DIRECTED to terminate the referral to the undersigned.
SO RECOMMENDED, this 26th day of August, 2016.
/s/_________
WALTER E. JOHNSON
UNITED STATES MAGISTRATE JUDGE