United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation 
(“R&R”). The R&R recommends the Court
dismiss as untimely Movant Maximo Stiven Bernabel Pena's
(“Movant's) 28 U.S.C. § 2255 motion  to
challenge his sentence (“Section 2255 Motion”).
Also before the Court are Movant's Objections to the
pleaded guilty to conspiracy to distribute and possess with
intent to distribute cocaine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A)(ii), a crime
subject to up to a life term of imprisonment. ([195.1] at 3).
On March 4, 2015, the Court imposed a 121-month term of
imprisonment. (). Movant did not file a direct appeal.
On July 25, 2016, Movant filed his Section 2255 Motion.
Movant asserts that he is entitled to a role reduction based
on the November 15, 2015, sentencing guidelines amendment
that amended the commentary to U.S.S.G § 3B1
September 19, 2016, the Magistrate Judge issued her R&R.
The Magistrate Judge found that Movant's Section 2255
Motion was due by March 18, 2016, and his Motion is untimely
by approximately five months. The Magistrate Judge found that
equitable tolling does not apply. The Magistrate Judge
recommends that the Court dismiss as untimely Movant's
Section 2255 Motion, and that a certificate of appealability
(“COA”) be denied.
September 12, 2016, Movant filed his Objections. Movant
argues that the recent change in law, Amendment 794,
“made his motion possible.” (Obj. at 1).
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where no party has objected to the report
and recommendation, the Court conducts only a plain error
review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
Court first conducts its plain error review of those portions
of the R&R to which Movant does not object. See
Slay, 714 F.2d at 1095. A Section 2255 motion is subject
to the one-year statute of limitations provided by 28 U.S.C.
§ 2255(f). The one-year period runs from the latest of
the dates on which (1) Movant's convictions became final;
(2) a State impediment to filing a motion to vacate was
removed; (3) a constitutional right on which Movant relies
was recognized by the United States Supreme Court, if the
right has been newly recognized and made retroactively
applicable to cases on collateral review; or (4) Movant, with
due diligence, could have discovered the facts supporting his
claims. See 28 U.S.C. § 2255(f)(1)-(4).
Magistrate Judge found that, because Movant did not directly
appeal, his federal conviction became final on March 18,
2015, fourteen days after the March 4 entry of judgment.
See Fed. R. App. P. 4(b)(1)(A). Under Section
2255(f)(1), Movant's Section 2255 Motion was due by March
18, 2016, and his Motion is untimely by approximately five
months. The Magistrate Judge found that Section 2255(f)(2)
does not apply, because Movant does not allege any unlawful
government impediment that prevented him from filing his
Section 2255 Motion earlier. The Magistrate Judge next
determined that Section 2255(f)(3) does not apply, because
Movant does not present any right newly recognized by the
United States Supreme Court. The Magistrate Judge found that
Section 2255(f)(4) does not apply because a guidelines
amendment does not qualify as a supporting fact to a claim
for relief. See Madaio v. United States, 397 F.
App'x 568, 570 (11th Cir. 2010) (“Since Section
2255(f)(4) is predicated on the date that ‘facts
supporting the claim' could have been discovered, the
discovery of a new court legal opinion, as opposed to new
factual information affecting the claim, does not trigger the
limitations period.” (emphasis in original) (quoting
§ 2255(f)(4))); Thomas v. United States, No.
2:09-CR-00277-RDP-JE, 2014 WL 4715861, at *4 (N.D. Ala. Sept.
22, 2014) (“The limitations period of § 2255(f)(4)
is triggered by the actual or imputed discovery of the
important facts underlying a claim, not the defendant's
recognition of the legal significance of those
facts.”); Seals v. United States, No.
08-cv-80, 2009 WL 1108482, at *2 (S.D. Ill. Apr. 24, 2009).
The Court finds no plain error in these findings and
recommendations. See Slay, 714 F.2d at 1095.
Magistrate Judge found that Movant does not show that he is
entitled to equitable tolling, because a change or amendment
to existing sentencing guidelines does not constitute an
extraordinary circumstance justifying equitable tolling of
the AEDPA statute of limitations. Movant appears to object to
this finding, arguing that he could not have filed his
Section 2255 Motion before the amendment to the Sentencing
Guidelines. AEDPA's one-year statute of limitations is
subject to equitable tolling if the petitioner “shows
(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and
prevented timely filing.” San Martin v.
McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (quoting
Holland v. Florida, 130 S.Ct. 2549, 2562 (2010))
(internal quotation marks omitted). Movant does not provide
any authority to support that changes or amendments to
existing sentencing guidelines constitute an extraordinary
circumstance justifying equitable tolling of the AEDPA
statute of limitations. See United States v. Snyder,
No. 1:99-cr-11, 2008 WL 370663, at *2 (N.D. Ind. Feb. 11,
2008). The Court finds Movant is not entitled to equitable
tolling of the one-year statute of limitations, and his
Section 2255 Motion is dismissed as untimely.
equitable tolling applied, Amendment 794 does not entitle
Movant to resentencing. The Amendment merely “clarified
the factors to consider for a minor-role adjustment”-it
did not substantively change Section 3B1.2. United States
v. Casas, 632 F. App'x 1003, 1004 (11th Cir. 2015);
Sapp v. United States, 2016 WL 4744159, at *1 (S.D.
Ga. Sept. 12, 2016); see also United States v.
Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016)
(Amendment 794 may be applied retroactively on direct
appeals). Indeed, the Sentencing Commission specifically
explained that Amendment 794 is intended only as a clarifying
amendment. U.S.S.G. Supp. App. ...