REPORT AND RECOMMENDATION

G. R. SMITH, Magistrate Judge.

After withdrawing a previous 28 U.S.C. § 2255 motion that sought to invalidate a career offender sentencing enhancement (docs. 1169, 1172),1 Anthony Knight now seeks § 2255 relief again. Doc. 1177. This time, however, he asks the Court to reduce his sentence in light of a November 1, 2015 amendment to the Sentencing Guidelines' "mitigating role" adjustment. Id. at 4; U.S.S.G. § 3B1.2. Preliminary review under Rule 4 of the Rules Governing Section 2255 Proceedings shows that his motion must be denied. In his first post-conviction motion, Knight tried to "file for the retroactivity in the Johnson case."2 Doc. 1168 at 1. He had never before filed a § 2255 motion, but the relief he sought was only available pursuant to that provision. See doc. 1170 at 2. The Court thus notified him that it intended to recharacterize his motion accordingly, and warned him of the potential consequences for any subsequent § 2255 motions (like this one) should it be denied. Id. at 2-3. Knight ultimately (and wisely) withdrew his motion and avoided triggering those consequences. Doc. 1172.

In his present motion (legally his "first" under § 2255), Knight points out that he originally received no mitigating role adjustment to his Guidelines sentence because he was classified as a career offender. Doc. 1177 at 4. Amendment 794 to U.S.S.G § 3B1.2, he says, changes something about that (what, he does not say) and entitles him to resentencing. Id.

That amendment merely "clarified the factors to consider for a minor-role adjustment" — it did not substantively change § 3B1.2. United States v. Casas, 632 F. App'x 1003, 1004 (11th Cir. 2015); see also United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). "The threshold inquiry," therefore, "is whether [Knight's] claim that his sentence is contrary to a subsequently enacted clarifying amendment is cognizable under § 2255." Burke v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998).

Burke mirrors this case, the only salient differences being the Guidelines enhancement at issue (obstruction of justice there, "minor role" here) and the number of the amendment underlying the defendant's claim (794 here, 347 in Burke). Id. at 1330. By voluntarily dismissing his appeal before decision, Burke effectively didn't appeal, just like Knight. Id. at 1331. Then, two years after Burke's sentencing (almost five years in Knight's case), the Sentencing Commission "added amendment 347 to the obstruction-of-justice enhancement provision." Id. Burke, also like Knight, "subsequently moved pursuant to 28 U.S.C. § 2255 for a modification and correction of his sentence based on this amendment." Id.

Because "§ 2255 is not a substitute for direct appeal," the Eleventh Circuit held that "nonconstitutional claims" like Burke's and Knight's "can be raised on collateral review only when the alleged error constitutes a "`fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.'" Burke, 152 F.3d at 1331 (quoting Reed v. Farley, 512 U.S. 339, 348 (1994)). "Insofar as amendment [794] is a clarifying amendment effecting no change in the substantive law, [Knight]," like Burke, "was afforded the opportunity to" challenge the denial of a minor role adjustment "at his original sentencing and on direct appeal." Id. at 1332. He never did.3 "Considering all of the circumstances, [the Court] cannot say that the alleged mis-application of the sentencing guidelines in this case was fundamentally unfair or that it constituted a miscarriage of justice sufficient to form the basis for collateral relief." Id.

Accordingly, Anthony Knight's § 2255 motion should be DENIED. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb.9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.") (emphasis added). Any motion for leave to appeal in forma pauperis therefore is moot.

SO REPORTED AND RECOMMENDED.