Opinion
File No. 1:04-CV-521.
March 3, 2005
OPINION
This matter is before the Court on Movant David Gibson's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255.
On March 27, 2003, Gibson pled guilty to one count of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 921(a), and 924(a)(2). United States v. Gibson, Case No. 1:02-CR-286 (W.D. Mich. 2002) (Docket #33). Gibson was sentenced on June 27, 2003, to forty-six months in prison, three years supervised release, and a $100 special assessment. (Docket #40). Gibson did not appeal his conviction or sentence. Gibson filed the present motion on August 9, 2004. Gibson argues that his sentence must be vacated pursuant to a new rule of constitutional law announced in Blakely v. Washington, 124 S. Ct. 2531 (2004).
Although Blakely addressed the State of Washington's sentencing scheme, the Blakely analysis has been extended to the federal Sentencing Guidelines in the recent Supreme Court decision in United States v. Booker, 125 S. Ct. 738 (2005). Accordingly, Booker now governs Gibson's claim. See Humphress v. United States, No. 03-5951, 2005 WL 433191 (6th Cir. Feb. 25, 2005).
II.
It is well settled that an argument not raised on direct appeal is waived. See Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996). Section 2255 is not a substitute for a direct appeal, and thus a defendant cannot use it to circumvent the direct appeal process. United States v. Frady, 456 U.S. 152, 167-68 (1982). Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent. Bousley v. United States, 523 U.S. 614, 622 (1998). Gibson did not raise a Blakely/ Booker issue through an appeal of his underlying conviction. Gibson contends that he did not raise the issue on direct appeal because it would have been futile to pursue such a claim because at the time every federal circuit held that Apprendi v. New Jersey, 530 U.S. 466 (2000), did not apply to the federal Sentencing Guideline calculations. See e.g., United States v. Helton, 349 F.3d 295 (6th Cir. 2003). The fact that an argument raised in a § 2255 motion would have been futile before Blakely was decided does not constitute cause. "[F]utility cannot constitute cause if it means simply that a claim was 'unacceptable to that particular court at that particular time.'" Bousley, 523 U.S. at 623 (quoting Engle v. Isaac, 456 U.S. 107, 130, n. 35 (1982)). Gibson has not attempted to show any other cause, actual prejudice, or that he is actually innocent. Accordingly, his claim has been procedurally defaulted and is not cognizable by this Court on collateral review. Nevertheless, because there are other impediments to Gibson's claim, the Court will not end its analysis here.Gibson's motion must also be denied because it was not timely filed. Since the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 2255 motions have been subjected to a one-year limitation period. Section 2255 ¶ 6 provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255 ¶ 6. In this case, § 2255 ¶ 6(1) is the applicable limitation period. Gibson was sentenced on June 27, 2003, and his conviction became final ten days thereafter when his time for filing an appeal expired. See FED. R. APP. P. 4(b)(1); Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004). Gibson did not file his § 2255 motion until August 9, 2004, more than one year after his conviction became final. Accordingly, his motion is not timely under § 2255, ¶ 6(1).
The only other date that arguably applies is the date specified in § 2255, ¶ 6(3) on which the right was "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Gibson did file his § 2255 motion within a year after Blakely, therefore his motion would be timely if the right he asserts under Blakely/Booker was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255 ¶ 6(3).
The Court agrees with Gibson that the right he asserts — the right to have a jury decide beyond a reasonable doubt factors that increase his sentence — is a new right recognized in Blakely and extended to the federal Sentencing Guidelines in Booker. In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. Blakely extended Apprendi by holding that the relevant "statutory maximum" for purposes of Apprendi "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, 124 S. Ct. at 2537 (emphasis in original). Finally, in Booker the Supreme Court applied the Blakely analysis to the federal Sentencing Guidelines. Booker, 125 S. Ct. at 749-50. Undoubtedly, Blakely and Booker represent new law because prior to Blakely every federal court of appeals held that Apprendi applied only to sentencing decisions that increased the statutory maximum penalty and did not apply to federal sentencing guideline calculations made within the statutory maximum. See e.g., Helton, 349 F.3d at 299-300; Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) (collecting cases). Further, even after Blakely was decided, it was still an open question as to whether the federal Sentencing Guidelines ran afoul of the Sixth Amendment. See Blakely, 124 S. Ct. at 2538, n. 9; United States v. Koch, 383 F.3d 436 (6th Cir. 2004). Clearly, the rule announced in Blakely and Booker represents a new rule of constitutional law.
While it is clear that Blakely and Booker are new rights, the Supreme Court has not held that they are retroactively applicable to cases on collateral review. In re Anderson, 396 F.3d 1336 (11th Cir. 2005) (holding that the Supreme Court has not expressly declared Booker or Blakely to be retroactive to cases on collateral review); Green v. United States, 397 F.3d 101 (2nd Cir. 2005) (denying motion to file second or successive petition because the Supreme Court has not made either Blakely or Booker retroactively applicable). In addition, all of the lower courts that have examined Blakely have uniformly held that it does not fall within one of the exceptions to the general rule that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague v. Lane, 489 U.S. 288, 310 (1989). See e.g., In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (noting that the Supreme Court strongly implied in Schriro that Blakely is not to be applied retroactively); Lily v. United States, 342 F. Supp.2d 532, 537 (W.D. Va. 2004) (" Blakely is a new procedural rule that does not meet the requirement of being a watershed rule of criminal procedure."); Morris v. United States, 333 F. Supp.2d 759, 772 (C.D. Ill. 2004) (holding that Blakely cannot be applied retroactively on collateral attack). Moreover, since Booker was decided the courts that have considered the issue have similarly held that Booker does not apply retroactively to criminal cases that became final before Booker was decided by the Supreme Court. See e.g., Humphress v. United States, No. 03-5951, 2005 WL 433191 (6th Cir. Feb. 25, 2005) ("[W]e conclude that Booker's rule does not apply retroactively in collateral proceedings. . . ."); Varela v. United States, No. 04-11725, 2005 WL 367095 (11th Cir. Feb. 17, 2005) ("[W]e conclude that Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005) ("We conclude then, that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005.").
Although the Supreme Court in Booker held that the decision applied retroactively to cases on direct review, see Booker, 125 S. Ct. at 769, they did not address whether Booker applied retroactively to cases, such as this one, on collateral review.
In January 2005, Gibson submitted an untimely reply to the Government's response. Although untimely, the Court will address the issues raised in the reply. Attached to the reply was a lengthy brief that appears to address in part the Ninth Circuit's approach to Apprendi and Blakely issues. It is not necessary for the Court to address these issues. Gibson's brief also attempts to argue that the aspect of Blakely (now Booker) requiring proof beyond a reasonable doubt of sentence enhancing factors is a watershed rule under Teague and should apply retroactively on collateral review. Further, Gibson argues that while Schriro addressed whether the need for jury, as opposed to judicial, fact finding was a "watershed rule" under Teague, it did not address whether the standard of proof used in finding sentence enhancing factors was a watershed rule. This argument of Schriro's limited application has been accepted in certain lower courts. See Rucker v. United States, 2005 WL 331336 (D. Utah Feb. 10, 2005); United States v. Siegelbaum, 2005 WL 196526 (D. Or. Jan. 24, 2005).
Even if the Court assumes that Schriro does not address the proof beyond a reasonable doubt standard for sentence enhancing factors under Blakely/Booker, the Court does not believe that this requirement rises to the level of a watershed rule under Teague. In the remedial portion of Booker, the Supreme Court held that the cure for the constitutional defect in the federal Sentencing Guidelines was to excise two provisions of the federal sentencing statute, 18 U.S.C. § 3553(b)(1) (requiring sentencing courts to impose a sentence within the applicable Guidelines range) and 18 U.S.C. § 3742(e) (providing standards of review on appeal). 125 S. Ct. at 764. Importantly, the Supreme Court retained the remainder of the Guideline scheme, including the use of judicial fact-finding by a preponderance of evidence and instructed the lower courts to continue considering the Guidelines. Id. at 767. In fact, the Supreme Court went as far as stating that the remaining Guideline provisions complied with the constitutional rules announced in Blakely/Booker. Id. ("With these two sections excised . . . the remainder of the Act satisfies the Court's constitutional requirements."); McReynolds, 397 F.3d at 479 ("The remedial portion of Booker held that decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as the guideline system has some flexibility in application.") (emphasis added). Therefore, because the district courts must still consider the Guideline ranges based on a preponderance of the evidence standard, it cannot be argued that a sentence enhancement based upon factors found by the Court by a preponderance of the evidence prior to Booker is fundamentally flawed. Accordingly, the Court rejects Gibson's argument that the requirement of proof beyond a reasonable doubt of sentence enhancing factors under Blakely/ Booker is a watershed rule of criminal procedure that must be applied retroactively.
Gibson has failed to demonstrate that he is within any applicable limitation period under § 2255. Further, because Blakely and Booker do not apply retroactively to cases on collateral review, Gibson cannot obtain the requested relief. Accordingly, Gibson's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 must be denied because it is both procedurally barred and barred by the one-year statute of limitation applicable to § 2255 motions. An order will be entered consistent with this opinion.