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United States v. Cotman

United States District Court, E.D. Virginia, Richmond Division

November 18, 2019

UNITED STATES OF AMERICA
v.
LONDON SHI-ANNE COTMAN, Petitioner.

          MEMORANDUM OPINION

          M. Hannah Lauck United States District Judge.

         London 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.

         I. Procedural History

         On 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 No. 1.)

         On 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.[1] (ECF No. 134, at 2.) Cotman did not appeal.

         On November 21, 2016, Cotman placed the present § 2255 Motion in the prison mail system. (§ 2255 Mot. 13.)[2] 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[3] 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.)

         As 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. 1992))).

         II. Analysis

         A. The Court will Dismiss Claims 1 and 2 Because Amendment 794 does Not Retroactively Apply on Collateral Review

         In 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.

         Under 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.

         Given 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. ...


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