Opinion
Case No. C05-1138C.
January 17, 2006
ORDER
This matter comes before the Court on Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Dkt. No. 1), the Report and Recommendation ("RR") of Judge Monica J. Benton, United States Magistrate Judge, Petitioner's objections to the RR, and the remaining record. Having reviewed the materials submitted by the parties and the record, and having determined that oral argument is not necessary, the Court hereby finds and rules as follows:
I. BACKGROUND
On July 2, 2002, Petitioner pleaded guilty to a single count of bank robbery. (RR at 1.) On September 13, 2002, Petitioner was sentenced to 120 months of imprisonment, and judgment was entered on September 16, 2002. (RR at 1.) Approximately three years later, in light of the Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), on June 22, 2005, Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal court sentence. (RR at 1.) Petitioner argues that his motion is not time-barred because it was brought within one year from the dates Blakely and Booker were decided and because both Blakely and Booker announced new rights that were made retroactively applicable to cases on collateral review. (Pet'r Mem. at 10.) Respondent opposes the motion on grounds that (1) Blakely and Booker are not retroactive, and (2) Petitioner's claim is procedurally defaulted and not susceptible to review via a § 2255 motion. (Reply at 6, 13.)
Judge Benton recommends in her RR that Petitioner's motion be dismissed as barred by the applicable statute of limitations.
II. ANALYSIS
This Court reviews the record de novo when considering objections to a magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1).
Petitioner's motion is untimely because the Supreme Court has not made the rights announced in Blakely and Booker "retroactively applicable to cases on collateral review" for purposes of a motion filed under 28 U.S.C. § 2255. 28 U.S.C. § 2255(3). In general, "[a] state prisoner whose conviction is final may not automatically have the rule from a subsequently decided case applied in a petition for habeas corpus pursuant to § 2255." Schardt v. Payne, 414 F.3d 1025, 1033 (9th Cir. 2005). There are only two exceptions to the rule against retroactivity. First, new substantive rules that "forbid punishment of certain primary conduct or . . . rules prohibiting a certain category of punishment for a class of defendants because of their status or offense" generally apply retroactively. Id. at 1033-34 (citing Beard v. Banks, 542 U.S. 406, 416 (2004)). Second, new rules of criminal procedure apply retroactively where they amount to "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 1034 (citing Beard, 542 U.S. at 417 (2004)).
The Ninth Circuit Court of Appeals, as well as every other circuit court that has considered the present issue, has unequivocally stated that Blakely is neither a substantive rule nor a watershed rule of criminal procedure. Schardt, 414 F.3d at 1036 ( Blakely does not announce a watershed rule of criminal procedure); see also In re Elwood, 408 F.3d 211 (5th Cir. 2005) (noting that Apprendi, 530 U.S. 466 (2000), and Blakely are not retroactive); United States v. Prince, 400 F.3d 844 (10th Cir. 2005) (same); Carmona v. United States, 390 F.3d 200 (2d Cir. 2004) (same). Similarly, every circuit court of appeals has held that the rule announced in Booker is also neither a substantive rule nor a watershed rule of criminal procedure that is automatically retroactive. See United States v. Cruz, 423 F.3d 1119 (9th Cir. 2005) (holding Booker does not announce a watershed rule of criminal procedure and citing opinions from four other circuits). Cruz characterized the Blakely and Booker rules as "rules that allocate decision-making authority [between judge and jury that] are prototypical procedural rules," and that such a change in the law does not rise to the level of a watershed rule of criminal procedure. Cruz, 423 F.3d at 1120-21. Accordingly, Petitioner cannot sustain his argument in light of the weighty legal authority contrary to his position.
For these reasons, it is hereby ORDERED:
(1) The Court adopts the Report and Recommendation,
(2) Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C § 2255 (Dkt. No. 1) is DISMISSED, and
(3) the Clerk is directed to send copies of this Order to Petitioner, to counsel for Respondent, and to Judge Benton.
SO ORDERED.