EDWARD J. LODGE, District Judge.
This matter is before the Court on Petitioner Randi Seferos' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. On October 7, 2013, Petitioner plead guilty to one count of Possession of Methamphetamine with Intent to Distribute. (1:13-cr-00129-7-EJL, Dkt. 259.) On March 4, 2014, this Court sentenced Petitioner to a 110-month term of incarceration with the Bureau of Prisons followed by a 120-months of supervised release.
On September 1, 2016, Ms. Seferos filed the instant § 2255 motion. (Dkt. 1.)
Although Petitioner brings her claim under 28 U.S.C. § 2255, she has not provided any evidence that she is entitled to relief under that statute. She does not claim that her sentenced was rendered without jurisdiction, that her sentence is illegal, or that her constitutional rights have been infringed. However, even if Petitioner had claimed appropriate justification for relief under § 2255, her claim would fail.
First, Ms. Seferos' motion is untimely under § 2255. Such motion must be brought within one year from the latest of:
28 U.S.C. § 2255(f).
Ms. Seferos' judgment became final over two years ago and passage of Amendment 794 does not restart the clock for the § 2255 statute of limitations. Accordingly, Ms. Seferos' motion is untimely.
Second, a court is generally required to use the guidelines manual in effect on the date a defendant is sentenced. Dorsey v. United States, 132 S.Ct. 2321, 2332 (2012); see also U.S.S.G. § 1B1.11(a) (requiring use of "the Guidelines Manual in effect on the date that the defendant is sentenced.") Further, the United States Sentencing Commission did not make Amendment 794 retroactive to all cases. See U.S.S.G. § 1B1.10(d) (2015) (listing retroactive guideline amendments). Although, in United States v. Quintero-Leyva, 823 F.3d 519, 523 (2016), the Ninth Circuit held Amendment 794 is a clarifying amendment that applies retroactively on direct review, it did not extend this holding to cases like Petitioner's, where collateral—rather than direct—review is sought.
Finally, Ms. Seferos suggests she ought to be given retroactive benefit of a clarifying amendment issued after she was sentenced. Such request must be brought as a motion under 18 U.S.C. § 3582, not a § 2255 motion. See Hamilton v. United States, 67 F.3d 761, 763 (9th Cir. 1995) (holding that a § 2255 claim can only be based on a claim of lack of jurisdiction, constitutional error, an error resulting in a "complete miscarriage of justice," or "a proceeding inconsistent with the rudimentary demands of fair procedure."). Even if the Court were to construe Petitioner's motion as a § 3582 motion,
When denying a § 2255 motion, the Court is required to also determine whether Petitioner is entitled to a certificate of appealability. Under 28 U.S.C. § 2253 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). This Court, however, has concluded that Petitioner's § 2255 motion is without merit. Thus, for the reasons set forth above, the Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right. The Court therefore declines to issue a certificate of appealability.