United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris Magistrate Judge.
ORDER DENYING PETITION TO REDUCE SENTENCE UNDE
AMENDMENT 794, DENYING CERTIFICATE OF APPEALIBILITY AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON United States District Judge.
August 8, 2012 a two-count indictment was issued charging
Petitioner Klosowski with conspiracy to possess with intent
to distribute heroin in violation of 21 U.S.C. §§
846 and 841(b)(1)(C), and knowing distribution of heroin in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). A superseding indictment issued on August 22,
2012 then charged Klosowski with ten additional counts,
including distribution of heroin in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C), distribution of
heroin within 1, 000 feet of a school in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 860(a), and
use of a person under the age of 18 to assist in distributing
heroin in violation of 21 U.S.C. §§ 841(a)(1)
841(b)(1)(C), and 861(a)(2). On March 12, 2013 Klosowski pled
guilty to conspiring both to possess heroin with intent to
distribute, and to distribute 100 grams or more of heroin
within 1, 000 feet of a school. ECF No. 34. Klosowski was
then sentenced on June 13, 2013 to 262 months of
imprisonment, 16 years of supervised release, and a special
assessment of $100. ECF No. 28. Judgment was entered on June
20, 2013. Id.
filed an appeal with the Sixth Circuit on June 20, 2013, and
on April 16, 2014, the Sixth Circuit affirmed his sentence.
ECF No. 40. In so affirming, the Sixth Circuit rejected
Klosowski's claim that his guilty plea was neither
knowing nor voluntary, and instead found that the plea
agreement was clear and that Klosowski had received the
sentence for which he had bargained. Id. The Sixth
Circuit declined to address Klosowski's claim that his
counsel had been ineffective on the grounds that the record
was not sufficiently developed to address the claim.
April 8, 2015, Klosowski filed a motion to vacate his
sentence under 28 U.S.C. § 2255, arguing that his
counsel had provided ineffective assistance, and that his
guilty plea was not entered knowingly or voluntarily. ECF No.
41. On April 29, 2015, Respondent United States moved to
dismiss Klosowski's petition, arguing that the petition
was both untimely and barred by the terms of his Rule 11 plea
agreement. ECF No. 46. On February 12, 2016, Magistrate Judge
Patricia T. Morris issued her report, recommending granting
Respondent's motion to dismiss and denying and dismissing
Klosowski's motion to vacate his sentence. ECF No. 61.
Klosowski's objections were overruled and the report and
recommendation was adopted by this Court on April 27, 2016.
See ECF No. 68. Specifically, this Court found that
the Sixth Circuit already determined that Klosowski had
entered his guilty plea knowingly and voluntarily, and that
Klosowski had not pled an ineffective assistance of counsel
claim upon which relief could be granted of under
Strickland v. Washington, 446 U.S. 668 (1994).
now brings a “petition” for the retroactive
application of Amendment 794, which establishes a sentence
reduction for those who are found to have played minor roles
in conspiracies. In United States v. Quintero-Leyva,
the Ninth Circuit held that Amendment 794 applied
retroactively on direct appeal. 823 F.3d 519, 523 (9th Cir.
2016). The Sixth Circuit has subsequently adopted the
reasoning and holding of Quintero-Levya. United
States v. Carter, No. 15-3618, 2016 WL 5682707, at *6
(6th Cir. Oct. 3, 2016). Amendment 794 has not, however, been
held to be retroactive on collateral appeal. See
Aguas-Landaverde v. United States, No. 2:15-CR-00183,
2016 WL 5341799, at *2 (S.D. Ohio Sept. 23, 2016), report and
recommendation adopted, No. 2:15-CR-00183(2), 2016 WL 6070480
(S.D. Ohio Oct. 17, 2016) (collecting cases); United
States v. Tapia, No. 8:14-CR-30-T-23TBM, 2016 WL
4815150, at *1 (M.D. Fla. Sept. 14, 2016); United States
v. Perez-Carrillo, No. 7:14CR00050, 2016 WL 4524246, at
*1 (W.D. Va. Aug. 26, 2016); Young v. United States,
No. 3:16-CV-3139, 2016 WL 4472937, at *2 (C.D. Ill. Aug. 24,
proper avenue for a defendant seeking a sentence reduction
based on an amendment to the Sentencing Guidelines is to file
a motion under 18 U.S.C. § 3582(c)(2).”
Young, 2016 WL 4472937, at *2. Construing
Petitioner's motion as a motion for relief under §
3582(c)(2), Petitioner is not entitled to relief. A district
may resentence a defendant pursuant to a sentencing guideline
amendment only if the Sentencing Commission has determined
that the amendment is retroactive. United States v.
Horn, 679 F.3d 397, 400 (6th Cir. 2012). Amendments that
have been deemed retroactive are listed in U.S.S.G.
1B1.10(d), and Amendment 794 is not listed. See Logan v.
United States, No. 5:12 CR 286, 2016 WL 5338060, at *5
(N.D. Ohio Sept. 23, 2016). Thus Petitioner's motion is
Petitioner may appeal this Court's dispositive decision,
a certificate of appealability must issue. See 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court rejects a habeas claim on the merits, the
substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the district
court's assessment of the constitutional claim debatable
or wrong. See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). “A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). In applying that standard, a district court may
not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit
of the petitioner's claims. Id. at 336-37.
“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
considered the matter, the Court concludes that Petitioner
has failed to make a substantial showing of the denial of a
constitutional right. Accordingly, a certificate of
appealability is not warranted in this case. The Court
further concludes that Petitioner should not be granted leave
to proceed in forma pauperis on appeal, as any
appeal would be frivolous. See Fed. R. App. P.
it is ORDERED that Petitioner's motion for a reduction of
his sentence under ...