Opinion
Case No. 1:04-CV-500 (Criminal Case No. 1:98:CR:183-01).
February 22, 2005
OPINION
This Court has before it Daniel Duane Brown's ("Petitioner") Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his motion, Petitioner claims that his constitutional rights were violated when this Court enhanced his sentence pursuant to the United States Sentencing Guidelines. On September 1, 2004, this Court put this matter on the administrative docket pending the United States Supreme Court's decision in United States v. Booker, No. 04-104 (Aug. 2, 2004) and United States v. Fan Fan, No. 04-105 (Aug. 2, 2004). On January 12, 2005, the Supreme Court rendered a decision in these cases. See United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005). Therefore, this Court will now address Petitioner's motion. After reviewing the motion, the Court concludes that Petitioner is not entitled to relief.
I. Procedural and Factual History
On November 10, 1998, Petitioner pled guilty to Sexual Exploitation of Children and Possession of Child Pornography. On March 5, 1999, this Court sentenced Petitioner to 405 months incarceration. He appealed his sentence. This Court's decision was affirmed by the United States Court of Appeals for the Sixth Circuit on January 16, 2001. See United States v. Brown, 237 F.3d 625 (6th Cir. 2001). The mandate in the appeal was issued on February 7, 2001. The Supreme Court denied certiorari on May 14, 2001. Petitioner filed his Motion pursuant to 28 U.S.C. § 2255 on July 30, 2004.
The facts of Petitioner's case are set forth in the Opinion of the Sixth Circuit which is attached to this Opinion. Petitioner complains that his offense level under the United States Sentencing Guidelines was impermissibly increased by a total of six levels: two levels because he obstructed justice by threatening to kill a victim by putting a bullet in her head if she told anyone about the crime (U.S.S.G. § 3C1.1(A) and (B)); two levels because he used a computer to solicit participation with a minor engaged in sexually explicit conduct (U.S.S.G. § 2G2.1(b)(3)); and two levels because he was viewed as an organizer of criminal activity (U.S.S.G. § 3B1.1(c)). These enhancements increased Petitioner's highest offense level from 33 to 39. Petitioner's offense level was increased an additional five levels because of the number of victims. But his offense level was reduced by three levels for acceptance of responsibility and for pleading guilty. So, Petitioner was sentenced at offense level 41 with a Criminal History Category of I, with a sentence range of 324 to 405 months. He was sentenced at the high end of the range at 405 months.
II. Petitioner's Blakely Claim
Petitioner's sole complaint is that the six level enhancement for obstructing justice, using a computer to solicit a minor, and being an organizer violated the law set forth in Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004). In Blakely, the United States Supreme Court held that a Washington state trial judge's enhancement of a defendant's sentence based on the judge's finding of deliberate cruelty violated the defendant's Sixth Amendment right to a trial by jury. The decision called into question the constitutionality of both Washington state's sentencing guidelines and the federal sentencing guidelines.
When Petitioner filed his petition on July 30, 2004, Blakely had just been decided. Since that date, the United States Supreme Court has decided another case, United States v. Booker, that addresses whether the federal sentencing guidelines and enhancement provisions violate a defendant's Sixth Amendment rights. United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005). In Booker, the Supreme Court held that the Sixth Amendment is violated by the mandatory imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant. However, the Court also concluded that the application of the guidelines does not violate a defendant's constitutional rights so long as the guidelines are advisory, rather than mandatory, in nature. Here, Petitioner objects to the six-point enhancement described above. However, for the reasons discussed below, neither Blakely nor Booker is applicable to Petitioner.
A. Supplemental Claim is Untimely
As a preliminary matter, it appears that Petitioner's claim for a violation of Blakely and Booker is untimely under the statute of limitations provision set forth at 28 U.S.C. § 2255. This provision provides that the one year statute of limitations begins to run from the latest of several dates, including "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. Here the one year statute of limitations would have commenced running after the United States Supreme Court denied certiorari on May 14, 2001. See Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004) ("As a general matter, convictions become final upon conclusion of direct review.") Thus, ordinarily, Petitioner would have had until May 14, 2002, to file his motion to vacate. He did not do so until over two years later on July 30, 2004.
In certain circumstances, the one year statute of limitations may also begin to run from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255. Here, although Blakely was decided on June 24, 2004 and Booker was decided January 12, 2005, there is no indication that either has been made retroactively applicable to cases on collateral review. In fact, as discussed in more detail below, it appears that they would not be applied retroactively, particularly given the Court of Appeals for the Sixth Circuit's decision not to apply a similar case, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), retroactively on collateral review. See Regalado v. United States, 334 F.3d 520, 527 (6th Cir. 2003). Therefore, it appears that Petitioner's claim is untimely.
B. Blakely and Booker Relief Cannot be Applied Retroactively
Petitioner's sentence was affirmed by the Court of Appeals and certiorari was denied by the United States Supreme Court. Therefore, Petitioner is left to this collateral attack on his sentence. Petitioner is too late because Blakely and Booker apply only to cases on direct review. They cannot be raised for the first time on collateral review.
New procedural rules, such as those set forth in Blakely and Booker, do not apply retroactively to cases on collateral review. In Teague v. Lane, 489 U.S. 288, 310-313, 109 S.Ct. 1060 (1989), the United States Supreme Court held that new constitutional rules of criminal procedure will not apply retroactively to cases on collateral review, unless: 1) the new rule places "'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe;'" or 2) the new rule establishes a watershed rule of criminal procedure that "implicate[s] the fundamental fairness of the trial," without which "the likelihood of accurate conviction is seriously diminished." Neither of these exceptions is met here.
Furthermore, for a new rule to be retroactive to cases on collateral review, the Supreme Court itself must make the rule retroactive. See Tyler v. Cain, 533 U.S. 656, 662-63, 121 S.Ct. 2478, 2482 (2001); In re Clemmons, 259 F.3d 489, 492-93 (6th Cir. 2001). As the Court explained in Tyler, "the Supreme Court is the only entity that can 'ma[k]e' a new rule retroactive. The new rule becomes retroactive, not by the decisions of the lower court or by the combined action of the Supreme Court and the lower courts, but simply by the action of the Supreme Court." Tyler, 533 U.S. at 663, 121 S.Ct. at 2482. Thus, it is not enough that this Court may retroactively apply a new rule of constitutional law or hold that a new rule of constitutional law satisfies the criteria for retroactive application set forth by the Supreme Court in Teague v. Lane. Rather, when the Supreme Court makes a rule retroactive for collateral-review purposes, it does so unequivocally, in the form of a holding. See Tyler, 533 U.S. at 663, 121 S.Ct. at 2482; In re Clemmons, 259 F.3d at 493.
Here, the Supreme Court has not expressly declared Booker or Blakely to be retroactive to cases on collateral review. See Booker, 125 S.Ct. at 769 (opinion of Breyer, J.) (expressly extending the holding "to all cases on direct review"). Booker itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review. Furthermore, the Court of Appeals for the Sixth Circuit previously has suggested that the Supreme Court has not made Blakely retroactive to cases on collateral review for purposes of the rules governing the filing of successive petitions. See Spiridigliozzi v. United States, No. 02-1812, 2004 WL 2671719 (6th Cir. Nov. 15, 2004) ("it is unlikely Blakely would apply retroactively to matters addressed via 28 U.S.C. § 2255"); see also Regalado, 334 F.3d at 527 (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) does not apply retroactively to cases on collateral review); In re Clemmons, 259 F.3d at 492 ("[w]hile this court has applied Apprendi to cases on direct appeal, we have not applied its new rule retroactively to cases on collateral review").
Other courts that have recently addressed this issue have held that Blakely and Booker cannot be applied retroactively to cases on collateral review. See McReynolds v. United States, ___ F.3d ___, 2005 WL 237642 (7th Cir. Feb. 2, 2005) ( Booker does not apply retroactively to cases on collateral review); Green v. United States, ___ F.3d ___, 2005 WL 237204 (2nd Cir. Feb. 2, 2005) (holding that neither Booker nor Blakely applied retroactively to petitioner's collateral challenge under section 2255); In re Anderson, ___ F.3d ___, 2005 WL 123923, *3-4 (11th Cir. Jan. 21, 2005) (denying petitioner's second or successive petition because petitioner could not show that the Supreme Court made Booker retroactive to cases already final on direct review); In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (holding that Blakely does not apply retroactively to cases already final on direct review); Gerrish v. United States, ___ F. Supp. 2d ___, 2005 WL 159642 (D.Me. Jan. 25, 2005) (holding that neither Booker nor Blakely apply retroactively to cases on collateral review).
Further, the Supreme Court itself has strongly implied that Blakely and Booker should not be applied retroactively. The same day the Supreme Court decided Blakely, the Court also issued its decision in Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519 (2004), holding that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), which extended application of Apprendi to facts increasing a defendant's sentence from life imprisonment to death, is not retroactive to cases on collateral review. Summerlin, 124 S.Ct. at 2526.
Because Blakely and Booker, like Ring, are based on an extension of Apprendi, Petitioner cannot show that the Supreme Court has made those decisions retroactive to cases on collateral review. Accordingly, Petitioner's claim fails to satisfy the statutory criteria of 28 U.S.C. § 2255.
III. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2255 Cases is a determination that the § 2255 motion, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (it is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm'r of Corr. of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was "intrinsically contradictory" to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal).
The Sixth Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." The Court finds that reasonable jurists could not find that this Court's dismissal of Petitioner's claim was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability.
Conclusion
For the foregoing reasons, Petitioner's request that he be released pursuant to 28 U.S.C. § 2255 is denied. This case will be dismissed with prejudice. No certificate of appealability will be issued.
A separate order will issue.