United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge.
Shi-Anne Cotman, a federal inmate proceeding pro se,
brings this motion pursuant to 28 U.S.C. § 2255
("§ 2255 Motion," ECF No. 180). The Government
has moved to dismiss, asserting, inter alia, that
the relevant statute of limitations bars relief. (ECF No.
193.) Despite the provision of notice pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Cotman filed no reply. For the reasons set forth below,
Cotman's § 2255 Motion (ECF No. 180) will be DENIED.
November 5, 2013, Cotman was charged with: conspiracy to
interfere with commerce by threats and violence, (Count One),
and interference with commerce by threats and violence,
("Hobbs Act robbery"), by robbing a McDonald's
in Chesterfield, Virginia, (Count Two). (Indictment 1-7, ECF
April 22, 2014, pursuant to a written plea agreement, Cotman
pled guilty to Count One, and the Government agreed to
dismiss Count Two. (ECF No. 72, at 1, 7.) On October 21,
2014, the Court sentenced Cotman to 48 months of
imprisonment. (ECF No. 134, at 2.) Cotman did not
November 21, 2016, Cotman placed the present § 2255
Motion in the prison mail system. (§ 2255 Mot.
The Court deems the § 2255 Motion filed as of that date.
See Houston v. Lack, 487 U.S. 266, 276
(1988). In her § 2255 Motion, Cotman contends that she
is entitled to relief on the following grounds:
Claims 1 and 2 Under Amendment 794 to United States Sentencing
Guidelines ("USSG"), Cotman qualified as a minor
participant in the criminal activity, and thus, was entitled
a decrease of 2 offense levels. (§ 2255 Mot. 4-5.)
Claim 3 "United States v. Johnson, that the
defendant was sentenced under the ACCA clause which is
unconstitutional and ... void for vagueness."
(Id. at 7.)
explained below, it is unnecessary to assess the timeliness
of the action because Cotman's claims lack merit and are
subject to summary dismissal. See United States v.
Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (noting that a
district court may summarily dismiss a § 2255 motion
where "files, and records 'show conclusively that
the movant is not entitled to relief" (quoting
United States v. Day, 969 F.2d 39, 41-12 (3d Cir.
The Court will Dismiss Claims 1 and 2 Because Amendment 794
does Not Retroactively Apply on Collateral
Claims 1 and 2, Cotman contends that, pursuant to Amendment
794, she qualifies as a minor participant in the criminal
activity, and thus, was entitled to a decrease of 2 offense
levels in her Sentencing Guidelines offense level. (§
2255 Mot. 4-5.) Amendment 794 amended § 3B1.1 of the
United States Sentencing Guidelines and took effect on
November 1, 2015. United States v. Quintero-Leyva,
823 F.3d 519, 522 (9th Cir. 2016). This amendment issued
after Cotman's conviction became final in November 2014,
when she failed to appeal the judgment.
28 U.S.C. § 2255, a federal prisoner may move to set
aside a sentence on the grounds 'that the 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(a). "A
non-constitutional error, however, may only serve as a basis
for collateral attack when it involves 'a fundamental
defect which inherently results in a complete miscarriage of
justice.'" United States v. Newbold, 791
F.3d 455, 459 (4th Cir. 2015) (quoting United States v.
Addonizio, 442 U.S. 178, 185 (1979)). "This
standard is only satisfied when a court is presented with
'exceptional circumstances where the need for the remedy
afforded by the writ of habeas corpus is apparent.'"
United States v. Foote, 784 F.3d 931, 936 (4th Cir.
2015) (quoting Hill v. United States, 368 U.S. 424,
428 (1962)). The United States Court of Appeals for the
Fourth Circuit has concluded that "sentencing a
defendant pursuant to advisory Guidelines based on a career
offender status that is later invalidated does not meet this
remarkably high bar." Id.
this high bar, numerous courts have concluded that inmates
may not utilize § 2255 to "receive the benefit of
an amendment to the Sentencing Guidelines that was not in
effect at the time that he [or she] was sentenced."
Orji, 2017 WL 1091784, at *1 (rejecting inmate's
claim brought via § 2255 that he was entitled to relief
under Amendment 794); see Drayton v. United States,
Nos. 7:14-CR-78-BO-9, 7:16-CV-292-BO, 2017 WL 1437068, at *1
(E.D. N.C. Apr. 21, 2017) (explaining that Amendment 794 does
not apply on collateral review); United States v.