RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

JOHN C. NIVISON, Magistrate Judge.

In this action, Petitioner Nichole Terry moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct her sentence. (Motion, ECF No. 169.) Petitioner contends that she is entitled to a reduction in the sentence based on Amendment 794 to the United States Sentencing Guidelines.1 (Motion at 4.)

In 2010, following a guilty plea, Petitioner was convicted of (1) conspiracy to distribute and to possess with intent to distribute oxycodone, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C); (2) possession with intent to distribute oxycodone, 21 U.S.C. § 841(a)(1), (b)(1)(C); and (3) possession of a firearm in furtherance of a drug felony, 18 U.S.C. § 924(c). (Judgment at 1.) The Court sentenced Petitioner to 160 months in prison. (Id. at 2.) Petitioner did not appeal from the judgment or the sentence.

The Government seeks summary dismissal because, according to the Government, the motion is time-barred, the claim is non-justiciable, and the guidelines amendment is not retroactively applicable. (Response, ECF No. 180.)

Following a review of the record, Petitioner's motion, and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

DISCUSSION

A request for a sentence reduction based on an amendment to the sentencing guidelines is governed by 18 U.S.C. § 3582(c)(2), which permits reductions "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2).2 "Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect, 28 U.S.C. § 994(u). This power has been implemented in USSG § 1B1.10, which sets forth the amendments that justify sentence reduction." Braxton v. United States, 500 U.S. 344, 348 (1991); see United States v. Havener, 905 F.2d 3, 7 (1st Cir. 1990) (holding that USSG § 1B1.10(a) "expressly forbids retroactive application" of amendments that do not appear on the list of sentencing guidelines amendments included in section 1B1.10(d)).3

Because Amendment 794 is not listed in USSG § 1B1.10(d), sentencing reductions under Amendment 794 are not authorized. In other words, Amendment 794 is not retroactive to a sentence imposed before the November 1, 2015, effective date of the amendment. Petitioner, therefore, is not entitled to relief under section 3582(c)(2).

Petitioner's attempt to secure a reduction of her sentence pursuant to 28 U.S.C. § 2255 also fails. Under section 2255, a person may move to vacate his or her sentence on one of four grounds: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction" to impose its sentence; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772-74 (1st Cir. 1994) (holding that the petitioner's claim of errors in the application of the sentencing guidelines did not amount to a miscarriage of justice). None of the grounds set forth in section 2255(a) applies to Petitioner's claim, as Petitioner's claim is based on a non-retroactive guidelines change that occurred after Petitioner was sentenced. Petitioner, therefore, has not asserted a claim within the scope of section 2255.

Furthermore, even if relief were potentially available under section 2255, Petitioner did not file the motion within the limitation period provided under section 2255(f).4 Petitioner's section 2255 motion is not timely under section 2255(f)(1), because the motion was not filed within one year of the date on which the 2010 judgment became final.5 Section 2255(f)(4) does not apply because Petitioner's request is based on an amendment to the sentencing guidelines rather than on newly discovered facts. See Barreto-Barreto v. United States, 551 F.3d 95, 99 n.4 (1st Cir. 2008) (holding that "the discovery of a new legal theory does not constitute a discoverable `fact' for purposes of § 2255(f)(4)"). Petitioner's allegations do not raise an issue under any other provision of section 2255(f).6

In sum, Petitioner has not asserted a basis for relief under 28 U.S.C. § 2255, and 18 U.S.C. § 3582(c)(2) does not permit relief because Amendment 794 is not retroactively applicable under USSG § 1B1.10(a), (d). Accordingly, Petitioner is not entitled to relief.

CONCLUSION

Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. In addition, I recommend that the Court deny Petitioner's motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).

NOTICE