Opinion
Cause No. CR 14-96-GF-BMM Cause No. CV 17-89-GF-BMM
11-21-2017
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. TERRY LEROY BRASDA, Defendant/Movant.
ORDER DENYING MOTION TO RECONSIDER AND DENYING CERTIFICATE OF APPEALABILITY
The Court denied Defendant Brasda's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 on October 18, 2017. Brasda is a federal prisoner proceeding pro se. Brasda now asks the Court to explain why the ruling on his motion does not follow the commentary to Amendment 794. See Letter (Doc. 851) at 1-2.
The commentary Brasda quote does not constitute commentary by the United States Sentencing Commission. see Id. at 1. The Commission's commentary does not refer to 28 U.S.C. § 2255. Further, Brasda misunderstood the decisions cited in his § 2255 motion. None of them arose under or refer to 28 U.S.C. § 2255. See United States v. Quintero-Leyva, 823 F.3d 519, 520 & n.1 (9th Cir. 2016); United States v. Brooks, 732 F.3d 148, 149 (2d Cir. 2013) (per curiam); United States v. Sabbeth, 277 F.3d 94, 95, 99 (2d Cir. 2002); United States v. Sanchez, 81 F.3d 9, 10 (1st Cir. 1996), cited in Mot. § 2255 (Doc. 844) at 3-4. Brasda asserted that "the retroactivity of clarifying amendments to collateral proceedings" is "firmly entrenched in many federal circuit courts of appeal." Mot. § 2255 (Doc. 844) at 3 (emphasis added). These cases hold only that clarifying amendments are generally retroactive to cases on direct review.
Construing Brasda's request for an explanation as a motion to reconsider, it is denied. A certificate of appealability is also denied. Brasda has not shown he was deprived of a constitutional right. See 28 U.S.C. § 2253(c)(2).
Accordingly, IT IS HEREBY ORDERED:
1. Brasda's motion to reconsider (Doc. 849) is DENIED.
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Brasda files a Notice of Appeal.
3. With Brasda's service copy of this Order, the clerk will include the Commission commentary following Amendment 794, U.S.S.G. Supp. to App. C (Nov. 1, 2016), at 114-117.
DATED this 21st day of November, 2017.
/s/_________
Brian Morris
United States District Court Judge