United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE.
Leslie Daniel Long moves to vacate his sentence under 28
U.S.C. § 2255. He contends that an amendment to the
United States Sentencing Guidelines-made years after he was
sentenced-should be retroactively applied to his case.
Because Long is procedurally barred from challenging his
sentence and, in any event, waived his right to bring this
challenge, I deny his motion.
Long is procedurally barred from challenging his sentence
under 28 U.S.C. § 2255.This statute required Long to file
his challenge within one year of the date his conviction
became final. Long was sentenced on October 9, 2014, but
he did not file his § 2255 motion until November
2016-long after the deadline had passed. Long's
failure to bring his claim within § 2255's
limitation period is reason enough to deny his challenge.
Long has not established that any of § 2255's
substantive requirements are met. Section 2255 requires Long
to show that his sentence is somehow illegal. The thrust of
Long's argument is that his due process rights were
violated because he should have qualified for a downward
adjustment in his sentence for being a minor participant
under U.S.S.G. § 3B1.2-and that the only reason he
didn't qualify was that this guideline was
unconstitutionally vague when he was sentenced. Long points
to the fact that the U.S. Sentencing Commission amended this
guideline after he was sentenced, and that the Commission
explained the reason it did so was because judges were not
applying it consistently. But that the Commission amended a
guideline because judges inconsistently applied it does not
equate to the guideline being unconstitutionally
vague. And Long has not offered any authority or
analysis suggesting that this guideline was
unconstitutionally vague as applied to him. After all, Long
was not sentenced under guideline § 3B1.2. The only
authority Long cites to support his novel argument,
United States v. Quintero-Leyva, 823 F.3d 519 (9th
Cir. 2016), simply held that the minor participant guideline
should apply to defendants on direct appeal because the U.S.
Sentencing Commission indicated it should-a point the
government conceded in that case. Tellingly, every court that
has considered the argument that Long raises here has
even if Long could get past these procedural barriers, he
waived his right to bring this challenge. Long signed a plea
agreement in which he “knowingly and expressly waive[d]
all collateral challenges, including any claims under 28
U.S.C. § 2255, to his conviction, sentence, and the
procedure by which the Court adjudicated guilt and imposed
sentence, except non-waivable claims of ineffective
assistance of counsel.” The right to collaterally
challenge a conviction or sentence is statutory, and a
knowing and voluntary waiver of a statutory right is
enforceable. Long's only argument for setting
aside his waiver is that his sentence “violated the
law.” But as I explained above, Long has not
shown that his sentence is legally infirm in any
way. I therefore deny his motion.
appeal this order, Long must receive a certificate of
appealability from a circuit or district judge. To obtain
this certificate, Long “must make a substantial showing
of the denial of a constitutional right, a demonstration that
. . . includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Given the controlling authority holding
that Long is barred from bringing his challenge, I deny his
request for a certificate of appealability.
THEREFORE ORDERED that defendant's motion under 28 U.S.C.
§ 2255 (ECF No. 94) is DENIED.
FURTHER ORDERED that defendant's request for a
certificate of appealability is DENIED.
 Long also argues that even if he
cannot challenge his sentence under § 2255, he can
challenge it under the common law doctrine of Audita
querela-a common-law writ to relieve a judgment debtor
where a legal defense or discharge arose subsequent to
judgment. Doe v. Immigration and Naturalization
Service, 120 F.3d 200, 203 (9th Cir. 1997). This
argument fails because, as I explain below, his challenge
fails on the merits. But in any event, Long provides no
authority to support the contention that this judgment-debtor
doctrine applies in criminal cases. Indeed, the Ninth Circuit
has held that petitioners may not use this doctrine to
circumvent § 2255's procedural bar.
Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001)
 Section 2255 allows petitioners to
move for relief within one year of other qualifying grounds,
such as the Supreme Court's initial recognition of a new
constitutional right. 28 U.S.C. § 2255(f). But Long does
not even attempt to argue that another limitation period
 ECF Nos. 71, 94.
Hamilton v. United States, 67
F.3d 761, 763 (9th Cir. 1995) (holding that a § 2255
challenge can be based only on claims of lack of
jurisdiction, constitutional error, an error resulting in a
“complete miscarriage of justice, ” or “a