Mendoza v. U.S.

Full title: EDWIN MENDOZA, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, S.D. New York

Date published: Sep 21, 2005

05 Civ. 3661 (LAP)(GWG), 91 Cr. 49 (RJW) (S.D.N.Y. Sep. 21, 2005)

Opinion

05 Civ. 3661 (LAP)(GWG), 91 Cr. 49 (RJW).

September 21, 2005

Edwin Mendoza, Pro Se, FCI Schuylkill Correctional Facility, Minnerville, NY.

Reed Michael Brodsky, Assistant United States Attorney, One St. Andrew's Plaza, New York, NY.

REPORT AND RECOMMENDATION

GABRIEL GORENSTEIN, Magistrate Judge

Edwin Mendoza has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody, filed April 11, 2005 (Docket #1 in 05 Civ. 3661). Mendoza was convicted after a jury trial in 1993 of a drug conspiracy charge and was sentenced to 20 years imprisonment.See id. ¶¶ 2-3. He appealed from that judgment of conviction to the United States Court of Appeals for the Second Circuit and his conviction was affirmed. See id. ¶ 9. The mandate issued on October 6, 1995. See Docket # 624 in 91 Cr. 49.

The instant petition is dated March 27, 2005, and was received by the Pro Se Office on March 14, 2005. In the memorandum of law accompanying the petition, Mendoza argues that his sentence was in violation of Blakely v. Washington, 524 U.S. 296 (2004), andUnited States v. Booker, 125 S. Ct. 738 (2005), in that certain facts relating to his sentence — in particular the amount of drugs involved in the drug conspiracy — were not found by a jury.See Petitioner's Memorandum of Law and Of Points and Authorities In Support of His Motion to Vacate, Set Aside, or Correct His Sentence Pursuant to Title 28 U.S.C. § 2255, filed April 11, 2005 (Docket # 2 in 05 Civ 3661), at 4, 10-11, 15-20. The flaw in this claim is pointed out in the Government's letter in response to the petition, dated August 22, 2005, which correctly notes that the Second Circuit has squarely held that "Booker is not retroactive, i.e., it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005).

In a document labeled "Petitioner's Response to the U.S. Attorney's Response/Letter dated August 22, 2005" (Docket #700 in 91 Cr. 49), Mendoza argues that he relies not only on the improper factfinding argument but also on a claim that he is "actually innocent." Id. at 4. But the sole basis for his "actual innocence" claim is that the judicial factfinding occurring at his sentence "violated Petitioner's Sixth Amendment rights to a jury determination beyond a reasonable doubt." Id. Thus, Mendoza's habeas claim in fact relies solely on the doctrine recognized in Blakely and Booker, and thus the claim is barred under Guzman. To the extent the petitioner is relying on some other argument, it comes long after the one-year limitations period set forth in 28 U.S.C. § 2255, and does not fit within any of the exceptions thereto.

Conclusion

For the foregoing reasons, Mendoza's petition should be denied.

PROCEDURE FOR FILING 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 have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Loretta A. Preska, 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Preska. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).