UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

HON. MARIANNE O. BATTANI

Plaintiff/Respondent,

Civil No: 10-12020

v. Criminal No: 08-20547

D-1, OVIDIO PENA-ALANIS,

Defendant/Petitioner.

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OPINION AND ORDER GRANTING PETITIONER’S MOTION TO AMEND,

DENYING PETITIONER’S § 2255 MOTION, AND 

DENYING CERTIFICATE OF APPEALABILITY

Before the Court are Defendant/Petitioner Ovidio Pena-Alanis’s Motion To Vacate,

Set Aside, Or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 22) and Motion to

Amend/Correct Original Motion (Doc. 25). For the reasons that follow, the motion to amend

is GRANTED, the § 2255 motion is DENIED with prejudice, and Petitioner is DENIED a

certificate of appealability.

I. BACKGROUND

Pursuant to a plea agreement, Petitioner Ovidio Pena-Alanis pleaded guilty to a

charge of conspiracy to possess with intent to distribute 100 kilograms or more of marijuana.

 (Doc.17). The criminal history worksheet attached to the agreement listed one prior state

conviction for possession of marijuana and described the disposition of that conviction as

“delayed sentencing.” (Doc. 17 at 13). The Presentence Investigation Report stated that

this conviction was actually for delivery/manufacture of marijuana and that Petitioner was
on probation for that conviction at the time of the instant federal offense. The Court adopted

the conclusions of the Report and found that Petitioner fell within Criminal History Category

III, with a properly calculated guideline range of 87 to 108 months. Upon a finding that

Category III over-represented the seriousness of his offenses, the Court departed downward

and sentenced Petitioner to a lesser term of 78 months imprisonment. Five days after the

Court sentenced him, Petitioner filed a § 2255 motion. (Doc. 22). He subsequently filed a

motion to amend his § 2255 motion. (Doc. 25). These pro se motions are now before the

Court.

II. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence of a [federal] court

... claiming the right to be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States ... may move the court which

imposed the sentence to vacate, set aside or correct the sentence.” To prevail on a § 2255

motion alleging non-constitutional error, the petitioner must show a fundamental defect in

the proceedings which resulted in a complete miscarriage of justice or an egregious error

which violated due process. Riggs v. United States, 209 F.3d 828, 831 (6th Cir. 2000);

Wright v. United States, 182 F.3d 458, 463 (6th Cir. 1999); Watson v. United States, 165

F.3d 486, 488 (6th Cir. 1999). In other words, a § 2255 movant must allege that: 1) his

conviction resulted from an error of constitutional magnitude; 2) his sentence was imposed

outside the statutory limits; or 3) an error of fact or law occurred that was so fundamental

as to render the entire proceedings invalid. Pough v. United States, 442 F.3d 959, 964 (6th

Cir. 2006); Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United
States, 323 F.3d 445, 454 (6th Cir. 2003). The petitioner must sustain his allegations by a

preponderance of the evidence. Pough, 442 F.3d at 964. 

III. ANALYSIS

Respondent does not oppose Petitioner’s Motion to Amend/Correct Original Motion.

(Doc. 25). The Court grants this motion and notes that Petitioner inadvertently used

“Criminal History Category” rather than “Criminal History Points” in the instant § 2255

motion. Turning to the § 2255 motion, Petitioner argues that the Court should not have

relied upon his prior state court drug conviction in calculating his sentence because that

conviction was ultimately dismissed once he finished serving his term of probation. The

Court disagrees.

Under Section 4A1.2(f) of the United States Sentencing Guidelines, “[a] diversionary

disposition resulting from a finding or admission of guilt . . . in a judicial proceeding is

counted as a sentence under § 4A1.1(c) . . . even if a conviction is not formally entered.”

In order to obtain a “diversionary disposition” on the charge of delivery/manufacture of

marijuana in state court, Petitioner was required to plead guilty and serve 11 months

probation. Petitioner’s admission of guilt is all that is required under the Sentencing

Guidelines for his sentence to be counted when determining his criminal history category.

See, U.S. v. Craft, 82 F.3d 419 (6th Cir. 1996) (unpublished table decision). Pursuant to

Section 4A1.2(f), the Court properly treated Petitioner’s diversionary disposition as a

sentence. The fact that the charge was ultimately dismissed does not change the analysis

because the dismissal was predicated on completing a term of probation rather than a

finding of innocence. 
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Furthermore, as an additional bar to Petitioner’s motion, absent extraordinary

circumstances, a petitioner’s cannot challenge a district court’s application of the Sentencing

Guidelines in a § 2255 proceeding. See, Grant v. United States, 72 F.3d 503, 505-06 (6th

Cir.1996); see also, U.S. v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999); Knight v. United

States, 37 F.3d 769, 773-74 (1st Cir.1994) (misapplication of Sentencing Guidelines is

generally not a proper claim under § 2255); United States v. Segler, 37 F.3d 1131, 1134 (5th

Cir.1994) (“A district court's technical application of the Guidelines does not give rise to a

constitutional issue cognizable under § 2255.”). The files and records in this matter

conclusively show there are no extraordinary circumstances which justify relief under 28

U.S.C. § 2255. Accordingly, the resolution this motion requires no evidentiary hearing.

IV. CONCLUSION

For the reasons discussed above, Petitioner’s Motion to Amend/Correct Original

Motion (Doc. 25) is GRANTED; his Motion To Vacate, Set Aside, Or Correct Sentence

Pursuant to 28 U.S.C. § 2255 (Doc. 22) is DENIED with prejudice.

V. CERTIFICATE OF APPEALABILITY

Under Rule 11(a) of the Rules Governing § 2255 Proceedings, a court “must issue

or deny a certificate of appealability when it enters a final order adverse to the applicant.”

“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). Based on the above

discussion, Petitioner has not made a substantial showing of the denial of a constitutional
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right. Petitioner’s claims do not establish that “reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). Accordingly, Petitioner Ovidio Pena-Alanis is also DENIED a

certificate of appealability. This Court further certifies to the Court of Appeals that any

appeal would be objectively frivolous.

IT IS SO ORDERED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: November 19, 2010

CERTIFICATE OF SERVICE

Copies of this Order were served upon Petitioner and counsel of record on this date

by ordinary mail and electronic filing.

 s/Bernadette M. Thebolt

Case Manager