Opinion
05 Civ. 3672 (JSR) (AJP).
May 4, 2005
REPORT AND RECOMMENDATION
To the Honorable Jed S. Rakoff, United States District Judge:
Petitioner Juan J. Lajara filed his present federal habeas corpus petition, pursuant to 28 U.S.C. § 2255, challenging the sentence that he received (in 00 Crim. 216) from Judge Rakoff. (Dkt. No. 1: Pet. ¶ 12(A); see also Dkt. No. 2: Lajara Br.)
For the reasons set forth below, Lajara's petition should be denied as time barred and without merit.
Background
On April 5, 2001, Lajara pleaded guilty before Judge Rakoff to engaging in racketeering activities in violation of 18 U.S.C. § 1962(c). (00 Crim. 216, Dkt. No. 46: 4/5/01 Conf. Tr. at 9-14, 26-31; see also 00 Crim. 216, Dkt. No. 37: Judgment.)
Lajara was sentenced by Judge Rakoff on June 22, 2001. (See 00 Crim. 216, Dkt. No. 47: 6/22/01 Sentencing Tr. ["S."]) At sentencing, Judge Rakoff noted that the Guideline range applicable to Lajara would have been 324 to 405 months, but that the statutory maximum for the crime was 240 months. (S. 4.) Defense counsel requested reduction from the maximum sentence by 36 months to take into account the 36 months that Lajara had served for another case in this District from Judge Martin. (E.g., S. 4-5.) Judge Rakoff sentenced Lajara to 240 months in prison, two years (24 months) of which was to be concurrent with Judge Martin's sentence. (S. 26-27, 30; see also 00 Crim. 216, Dkt. No. 37: Judgment at 2.)
On April 26, 2002, the Second Circuit denied Lajara's appeal, which specifically had challenged his sentence. See United States v. Sercion, No. 01-1370, 38 Fed. Appx. 638, 2002 WL 731766 (2d Cir. Apr. 26, 2002). The Supreme Court denied certiorari on October 7, 2002. Lajara v. United States, 537 U.S. 918, 123 S. Ct. 303 (2002).
ANALYSIS
A § 2255 petition must be brought within one year of, inter alia, the date on which judgment became final or when a new right is recognized by the Supreme Court. 28 U.S.C. § 2255.
Section 2255 provides, in relevant part:
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.
Obviously, Lajara's March 2005 § 2255 petition was filed considerably more than a year after the October 2002 denial of certiorari. Thus, his petition is timely only if it falls within subsection 3, i.e., is within a year after a "right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." While Lajara relies on the Blakely and Booker/Fanfan Supreme Court decisions (e.g., Dkt. No. 2: Lajara Br. at 6-8, 11), the Supreme Court has not held those decisions to be applicable to cases on collateral review, and in fact the Second Circuit has held that Blakely and Booker/Fanfan are not applicable to cases on collateral review. See Guzman v. United States, No. 03-2446, ___ F.3d ___, 2005 WL 803214 at *1 (2d Cir. Apr. 8, 2005) (Booker does not apply retroactively to cases on collateral review); United States v. Mitchell, No. 04-3367, 122 Fed. Appx. 539, 541, 2005 WL 387974 at *1 (2d Cir. Feb. 18, 2005) ("This court has held . . . that Booker does not apply retroactively to cases on collateral review."); Green v.United States, 397 F.3d 101, 103 (2d Cir. 2005) ("[N]eitherBooker nor Blakely apply retroactively to [petitioner's] collateral challenge."); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004) (the Supreme Court has yet to make Blakely retroactive on collateral review); see also Steele v. United States, 04 Civ. 6918, 02 Cr. 629, 2005 WL 704868 at *16 n. 18 (S.D.N.Y. Mar. 29, 2005) (Peck, M.J.).
United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005); Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).
Lajara also asserts that he is "actually innocent of the sentence he received." (Pet. ¶ 12(A); see also Lajara Br. at 12-14.) While the Second Circuit has left open the possibility that "actual innocence" may require review of an otherwise time-barred habeas claim, Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) ("[W]e have instructed district courts faced with untimely petitions in which the petitioner asserts his or her actual innocence to determine, in each case, whether the petitioner has presented a credible claim of actual innocence before ruling on the legal issues of whether such a showing provides a basis for equitable tolling and whether the petitioner must also demonstrate that he or she pursued his or her claim with reasonable diligence.") (citing Whitley v. Senkowski, 317 F.3d 223, 225-26 (2d Cir. 2003)), there can be actual innocence of the charged crime, but there cannot be actual innocence of the sentence, which is just another way of saying that the sentence is unjustified.
CONCLUSION
For the reasons set forth above, Lajara's § 2255 petition should be denied and a certificate of appealability should not be issued.FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).