Opinion
4:08CR3142
2013-10-17
UNITED STATES OF AMERICA, Plaintiff, v. MARY ELIZABETH McDANIEL, Defendant.
MEMORANDUM AND ORDER
The defendant has filed a second § 2255 motion. (Filing no. 205. See also filing no. 179.) Relying upon Alleyne v. United States, 133 S.Ct 2151 (2013) (a fact that increases a statutory minimum sentence from a mandatory lower sentence to a mandatory higher sentence must be found by a jury), the defendant argues that because her sentence was enhanced, I must vacate her sentence. Her motion will be denied for three separate reasons.
First, the defendant has not secured the necessary certificate required to prosecute a second § 2255 motion. See 28 U.S.C. § 2555(h). Second, only the Justices can make a new rule of constitutional law such as Alleyne retroactive under 28 U.S.C. § 2254(h)(2), and since they have not done so, my Court of Appeals is unlikely to grant the required certificate as a result of Alleyne. See, e.g., In Re James Edward Payne, —F.3d—, 2013 WL 5200425 (10 Cir., Sept. 17, 2013) (denying certificate sought on the basis of Alleyne); Simpson v. United States, 721 F.3d 875 (7Cir. 2013) (denying certificate sought on the basis of Alleyne). Third, the jury found that the defendant was responsible for 50 grams or more of crack, the statutory minimum sentence of 10 years was thus triggered by the jury and not a judge, there were no sentencing "enhancements" within the meaning of Alleyne, and the defendant's sentence (reduced under the Fair Sentencing Act) of 121 months is not subject to challenge on the basis of Alleyne. (Compare filing no. 128 and filing no. 129 (jury verdict) with filing no. 153 (PSR) at CM/ECF pp. 7-8, ¶¶ 25-34.)
For the reasons set forth in this Memorandum and Order denying the defendant's § 2255 motion, I conclude that she has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c). Therefore, I find, conclude and recommend that a certificate of appealability should not be issued.
IT IS ORDERED that the Motion to Vacate Under 28 U.S.C. § 2255 (filing No. 205) is denied and dismissed with prejudice. No certificate of appealability will be issued by the undersigned. A separate judgment will be issued.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge