United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the court on initial review of defendant
Kathleen Fischer's pro se motions to vacate
under 28 U.S.C. § 2255, Filing No. 123, and 28 U.S.C.
§ 2241, Filing No. 126.
Fischer entered a plea of guilty to one count of distribution
or possession with intent to distribute 500 grams or more of
a methamphetamine mixture. That charge carries a ten-year
mandatory minimum sentence. 21 U.S.C. §§ 841(b)(1).
binding plea agreement pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), Fischer agreed to a sentence of 180
months (fifteen years) based on her “role in the
offense, criminal history, and acceptance of
responsibility.” Filing No. 78, Plea Agreement
at 6. She also agreed to forfeit some currency and to pay the
government the sum of approximately $3, 400. Id.
Other than the statement quoted above, the plea agreement did
not refer to any calculations under the Guidelines. In
exchange for the guilty plea, the government agreed not to
file an Information of convictions for felony drug offenses
or violent crimes under 21 U.S.C. § 851. It also agreed
not to seek forfeiture of real property to the government.
The plea agreement also contemplated cooperation. See Filing
presentence investigation report (“PSR”)
indicates that Fischer's suggested Guidelines range would
have been 262 to 327 months based on her status as a career
offender for having two prior convictions of felony drug
offenses. Filing No. 97, PSR (Sealed) at 9; see U.S.S.G.
§ 4B1.1. Under the Guidelines' career-offender
provision, Fischer's base offense level was 37, less 3
levels for acceptance of responsibility, resulting in a total
offense level 34 at criminal history category
Id. The plea agreement does not mention or refer to
filed a motion to vacate under 28 U.S.C. § 2255 on
August 1, 2013. Filing No. 103. She contended, inter
alia, that her attorney had failed to file an appeal.
Id. The motion was denied as untimely on initial
review. Filing No. 104. She later filed a motion to reduce
her sentence under 18 U.S.C. § 3582(c)(2) based on
Guidelines Amendment 782, which retroactively reduced the
base offense levels for drug offenses by two levels.
Filing No. 109. Fischer's appointed counsel
later moved to withdraw, stating that Fischer did not qualify
for an Amendment 782 sentence reduction because she had been
sentenced as a career offender. Filing No. 111 and Filing No.
now seeks relief based on Amendment 794 to U.S.S.G. 3B1.2.
That amendment relates to Guidelines commentary on the use of
minor and minimal participant downward adjustments in
Guidelines calculations. She asserts that under the revised
commentary text she is entitled to a four-level reduction in
her Guidelines sentence for her minimal participation.
also contends, under 28 U.S.C. § 2241, that she is
entitled to a sentence reduction by reason of several recent
Supreme Court cases.
the Rules Governing Section 2255 Proceedings for the United
States District Courts (“2255 Rules”), the court
must perform an initial review of the defendant's §
2255 motion. See 28 U.S.C. § 2255, Rule 4(b). The rules
provide that unless “it plainly appears from the face
of the motion and any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to
relief in the district court, ” the court must order
the United States Attorney to respond to the motion.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
28 U.S.C. § 2255(b); Sinisterra v. United
States, 600 F.3d 900, 906 (8th Cir. 2010). A motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
“second or successive” § 2255 motion cannot
be entertained by the trial court without prior approval by
the Court of Appeals. 28 U.S.C. §§ 2244(b)(3) and
2255(h). Without pre-approval from the appropriate circuit
court, a trial court cannot exercise jurisdiction over a
second or successive § 2255 motion. See Boykin v.
United States, 242 F.3d 373 (8th Cir. 2000) (unpublished
attacking a sentence is properly entertained in a § 2255
petition in the sentencing court, whereas a claim attacking
the execution of that sentence should be brought in a §
2241 petition in the jurisdiction of incarceration.
Nichols v. Symmes,553 F.3d 647, 649 (8th Cir.
2009). “A petitioner who seeks to challenge his
sentence or conviction generally must do so in the sentencing
court through § 2255 and cannot use § 2241 to
challenge the conviction without ...