Opinion
Nos. 04 Civ. 2416 (SAS), 01 CR 545 (SAS).
February 22, 2005
Michael Nnebe, Fort Dix, New Jersey, Petitioner (Pro Se).
Sarah Y. Lai, Assistant United States Attorney, New York, New York, for Respondent.
OPINION AND ORDER
Michael Nnebe has filed a petition to vacate, set aside or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). In that petition, Nnebe argues that: (1) his appellate counsel rendered ineffective assistance by failing to appeal the two-level enhancement for abuse of trust pursuant to United States Sentencing Guidelines ("U.S.S.G.") section 3B1.3; and (2) his sentence was unconstitutional because it was based, in part, on facts not found by a jury. For the following reasons, the petition is without merit and is hereby dismissed.
I. BACKGROUND
Michael Nnebe was tried by a jury from May 3-16, 2002, on two counts. Count One charged Nnebe and his codefendant, Nelson Walker, with conspiracy to commit securities fraud, mail fraud, and wire fraud in violation of 18 U.S.C. § 371. Count Two charged Nnebe with securities fraud in violation of 15 U.S.C. §§ 77q(a) and 77xx, and 18 U.S.C. § 2. The evidence at trial proved that Nnebe raised over $2 million from investors through misrepresentations and used the investment funds for personal consumption and for paying his coconspirators. On May 16, 2002, the jury returned its verdict finding Nnebe guilty on both counts.
In 1996, Nnebe created Fargo Holdings ("Fargo"), a Delaware corporation headquartered in Manhattan. See Presentence Report ("PSR") ¶ 8. Fargo represented itself to be a company that planned to provide a variety of business-related services, with a focus on day trading. See id. Nnebe appointed himself Fargo's President, Chief Executive Officer ("CEO") and sole board member. See id. ¶ 13. As such, he was the only signatory on Fargo's corporate bank accounts and controlled and managed Fargo's financial affairs. See id. ¶ 9.
A. The First Private Placement Memorandum
From 1997 through 1999, Nnebe engaged in a scheme to defraud investors who purchased shares of Fargo. See id. ¶ 12. In approximately July 1997, Nnebe sent a "private placement memorandum" (the "1st PPM") to prospective investors. See id. ¶ 13. Through the 1st PPM, Nnebe sought to raise $1 million by selling 200,000 shares of Fargo common stock at a price of $5 per share. See id. ¶ 14. The stock was offered pursuant to Securities and Exchange Commission ("SEC") Rule 504 and Regulation D, which permit, under certain circumstances, the sale of stock without first registering it with the SEC. See id. ¶¶ 11, 14. Nnebe hired a group of salespeople to sell Fargo stock. In 1997 and 1998, Nnebe raised several hundred thousand dollars from the sale of Fargo stock.
The 1st PPM stated that Fargo would become a financial services company providing facilities for day trading. The 1st PPM explained how Fargo would use the proceeds raised by the sale of its common stock primarily for Fargo's business purposes and that it would pay its salespeople a commission not in excess of ten percent of the proceeds. However, by approximately February 1998, Nnebe realized that Fargo would be unable to pursue the day trading business or offer financial services. See Trial Transcript at 943.
B. The Second Private Placement Memorandum
Although Nnebe had abandoned the idea of Fargo as a day trading company, he did not abandon the private placement offering of Fargo's stock. Instead, he decided that Fargo would become a blue jeans manufacturing and importation company. Nnebe sent a second private placement memorandum ("the 2nd PPM") to prospective investors. The 2nd PPM also misled investors about Fargo by stating that in addition to importing blue jeans, Fargo would "continue with day trading activities" when, in fact, Nnebe had abandoned that plan. See id. at 993-994. Like the 1st PPM, the 2nd PPM also informed investors that Fargo would pay its salespeople no more than a 10% commission and would use investors' money primarily for Fargo's business purposes.
C. Lies Told to Fargo's Investors
In approximately September 1998, Nnebe hired Nelson Walker to supervise the Fargo sales force. In the Fall of 1998, Walker recruited Hildreth Fleming, whom Walker knew from another private placement fraud. See id. at 555-556. Fleming testified at trial pursuant to a cooperation agreement with the Government, and described how he and other brokers sold Fargo stock by "cold-calling" prospective investors and then telling them blatant lies about Fargo and its prospects. Among the lies told by Fargo salespeople to investors were the patently false statements that: (1) Fargo has a jeans manufacturing factory in Honduras; (2) Fargo had entered into contracts with stores such as Bloomingdale's and Macy's to sell Fargo jeans; and (3) an initial public offering ("IPO") of Fargo's stock was imminent. The lies about the fictitious IPO were compounded by further deceptions explaining its delay, including the representation that a hurricane in Honduras damaged Fargo's nonexistent jeans factory. See id. at 372-373, 384-385, 398-400. As Nnebe conceded through stipulations, these statements to investors were false. Fleming also testified that Nnebe had paid him commissions of up to 25% to sell Fargo stock, far in excess of the 10% disclosed in the 2nd PPM. See id. at 358-362. Fleming further testified that Nnebe's sole goal in lying to investors was to obtain their money. See id. at 363, 376, 401-02, 444.
The evidence at trial established that Nnebe was well aware that Fargo's salespeople were lying to investors. The proof against Nnebe included a contemporaneous tape recording of Fleming lying to an investor about Fargo, while concealing his identity through the alias "Steve Wilson." The evidence showed that Nnebe knew that Fleming used the bogus name "Steve Wilson" when speaking to investors. Despite his knowledge that no "Steve Wilson" worked at Fargo, Nnebe nonetheless told one investor, Theodore Thielman, that "Steve Wilson" was unavailable because "Wilson" was at the New York Stock Exchange ("NYSE") working on Fargo's IPO. See id. at 562. Contrary to the representations made to investors, Nnebe stipulated at trial that no such IPO was ever scheduled and that Fargo never applied to be listed on the NYSE. See id. at 63, 64. Nnebe was also aware that Nelson Walker used a phony name when speaking to investors. See id. at 376.
More importantly, Nnebe himself spoke to several investors and lied to them about Fargo and its prospects. See id. at 487, 523, 525. Five of those investor-victims testified at trial, and described the lies of Nnebe and his salespeople. Like Fleming, Nnebe lied to investors about Fargo's jeans business, assuring them that the jeans manufacturing was going well when, as Nnebe conceded at trial, that was not the case. See id. at 487-488, 523, 697, 955, 957, 988, 1015-1016. With respect to one investor, Earl Huebner, Nnebe perpetuated his lie that Fargo was going to be a day trading company by deliberately concealing Fargo's purported transformation into a blue jeans company. See id. at 654. Furthermore, Nnebe told investors that Fargo was about to conduct an IPO of its stock and, as a result, Fargo's stock price would increase dramatically. See id. at 562-565, 632-636, 699. Nnebe provided specifics to investors about the purported IPO including the price of the stock at the opening of the IPO, a description of Fargo's stock symbol, and the markets Fargo's stock would trade on, telling investors it would trade on either the NYSE or NASDAQ market. See id. at 564-65, 633-36). As Nnebe conceded at trial, no such IPO was even contemplated, much less imminent, as Fargo never applied to be listed on either the NYSE or the NASDAQ.
D. Nnebe Misappropriates Investors' Money
Meanwhile, Nnebe raised approximately $2 million from investors. Rather than using that money primarily for legitimate business purposes (as he had promised in the PPMs), Nnebe kept approximately half of the money and used the remainder to pay his co-conspirators. The Government introduced voluminous documentary evidence showing how Nnebe looted Fargo and used approximately $1 million of investors' money for his own personal enrichment. The Government's documents showed that Nnebe directly used Fargo funds to pay his home mortgage and home heating bills, to clean his pool, to purchase and maintain fancy cars (including a Rolls Royce, a Ferrari, a Range Rover, and a Mercedes Benz), to buy himself fancy clothes, and to pay for his travel and meals. In addition to those personal expenses, Nnebe wrote checks payable to himself, totaling approximately $80,000; wrote over 100 checks to cash, totaling more than $300,000; wired more than $300,000 to his family in Nigeria; and additionally withdrew more than $100,000 in cash through hundreds of withdrawals at automated teller machines.
In August 1999, several months before Nnebe closed Fargo, he informed Fargo's landlord that he intended to terminate Fargo's lease at the end of October 1999. Yet, throughout the Fall of 1999, Nnebe continued to solicit hundreds of thousands of dollars from investors. Then, in about November 1999, Nnebe closed Fargo as he had previously planned. See id. at 403-405, 771-777. Investors tried to contact Fargo to no avail; Nnebe left no forwarding address or telephone number and never contacted a single investor to notify them of his or Fargo's whereabouts. See id. at 493-496, 525, 567-568, 642-646. Yet, over the next few months, after disappearing and terminating all contact with investors, Nnebe continued to withdraw investors' funds until they were completely depleted. In total, Nnebe defrauded approximately 125 investors out of approximately $2 million.
E. Nnebe's Sentencing
On May 16, 2002, the jury returned a verdict of guilty against Nnebe on both Counts of the Indictment. Nnebe was sentenced on August 21, 2002. At sentencing, this Court ruled on three disputed issues, only one of which is raised in Nnebe's habeas petition. Specifically, the Probation Department recommended a two-level enhancement for abuse of trust, which Nnebe opposed and the Government advocated.
After hearing from the parties, this Court ruled that a two-level enhancement to the offense level was required for abuse of trust because, under U.S.S.G. section 3B1.3 and the law of this Circuit, Nnebe had a fiduciary relationship with, and fiduciary duties to, Fargo's shareholders. See Sentencing Transcript ("Sent. Tr.") at 23-25. The Court noted that Nnebe was the CEO and sole board member of Fargo and, in that capacity, personally spoke to and made false statements to victims which induced them to invest in Fargo. See id. at 23, 28. Moreover, Nnebe abused his control over Fargo's bank accounts to use investment proceeds for lavish personal expenditures, including fancy cars and clothes. See id. at 25. The Court concluded that "the abuse of trust enhancement, therefore, must apply, [and] is most definitely warranted." See id. at 24.
In addition to the abuse of trust enhancement, the Court also adopted the recommendation of the Probation Department and applied the following Sentencing Guidelines adjustments to the base offense level of 6: (1) a 12-level increase based on loss amount; (2) a 2-level increase because the offense involved more than minimal planning or a scheme to defraud more than one victim; (3) a 2-level increase because the offense was committed through mass marketing; and (4) a 4-level increase because the defendant was an organizer or leader of a criminal activity that involved five or more participants. See PSR ¶¶ 36-38, 40-41; see also Sent. Tr. 26-28. In addition, the Court imposed the disputed 2-level enhancement for abuse of a position of trust and an additional 2-level enhancement for obstruction of justice based on the defendant's perjury at trial and before the SEC. See Sent. Tr. at 28. Based on a total offense level of 30 and a Criminal History Category of I, the Guidelines range was 97 to 121 months.
The statutory maximum term of imprisonment on each Count is five years. See 18 U.S.C. § 371; 15 U.S.C. § 77x.
Nnebe was sentenced to 60 months imprisonment on Count One and 49 months imprisonment on Count 2, to run consecutively. The total period of incarceration of 109 months was less than the statutory maximum term of imprisonment. The term of imprisonment was to be followed by three years of supervised release on each count, to run concurrently. See id. at 30. Nnebe was also ordered to pay restitution in the amount of $1,820,767 and a mandatory $200 special assessment. See id. at 30-31.
F. Nnebe's Direct Appeal
Nnebe retained new counsel for his direct appeal. Nnebe raised two issues on appeal: (1) whether the Government improperly shifted the burden of proof during summation, and (2) whether this Court erred in imposing full restitution by failing to consider his and his dependants' financial needs. Nnebe did not appeal any of the Guidelines enhancements. On December 17, 2003, the Court of Appeals affirmed Nnebe's conviction. See United States v. Walker, 353 F.3d 130, 131 (2d Cir. 2003).
G. Nnebe's Section 2255 Petition
On March 1, 2004, this Court's Pro Se Office received Nnebe's pro se petition to vacate, set aside or correct his sentence. In that petition, Nnebe contends that his appellate counsel rendered ineffective assistance because counsel did not challenge the abuse of trust enhancement, despite Nnebe's instructions to do so. See Petitioner's Memorandum of Law in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255 ("Pet. Mem.") at 1-2. Before the Government responded to the original petition, Nnebe filed a "Supplemental Petition" adding a claim based on Blakely v. Washington, 124 S. Ct. 2531 (2004). In his Supplemental Petition, Nnebe argues that his sentence violated his Sixth Amendment right to a jury trial because this Court relied on facts which had not been found by a jury or admitted by the defendant in applying a 24-level enhancement to Nnebe's base offense level.
II. LEGAL STANDARDS
A. Section 2255 Standard
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
B. Ineffective Assistance of Counsel
A defendant seeking to attack his sentence based on ineffective assistance of counsel must (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," i.e., demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-89, 693-94 (1984). The two-prong Strickland test applies to claims of ineffective assistance of appellate counsel as well as of trial counsel. See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)).
In analyzing a claim that counsel's performance fell short of constitutional standards, it is not enough for a petitioner to show that his appellate counsel omitted a nonfrivolous argument. Aparicio, 269 F.3d at 95. Instead, the Court "must 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466 U.S. at 689). As explained by the Supreme Court,
strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.466 U.S. at 690-91. Moreover, "[i]n assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690). Thus, a defendant cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy. See Jones v. Barnes, 463 U.S. 745, 752 (1983) (explaining that an indigent appellant does not have the right to compel appointed counsel to press every nonfrivolous point on appeal and recognizing "the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"); Mayo, 13 F.3d at 533 ("[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.").
A habeas petitioner may establish constitutionally deficient assistance if he shows that his appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000). However, "[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a] [p]etitioner [i]s entitled." Aparicio, 269 F.3d at 99 (internal quotation marks and citations omitted). Finally, even if an attorney's performance were objectively unreasonable and unprofessional, the defendant must still prove prejudice. That is, the defendant must show "'a reasonable probability' that, but for the deficiency, 'the result of the proceeding would have been different.'" Aparicio, 269 F.3d at 95 (quoting Strickland, 466 U.S. at 694).
C. Abuse of Trust Enhancement
With respect to the challenged enhancement, the Sentencing Guidelines provide for a two-level enhancement to a defendant's offense level "[i]f the defendant abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. The question of whether a position of trust has been abused is assessed from the perspective of the victim. See United States v. Barrett, 178 F.3d 643, 646 (2d Cir. 1999). For the enhancement to apply, therefore, "the defendant must have misused discretionary authority that the victim entrusted to him or that another party entrusted to him on the victim's behalf." Id. The Second Circuit has recognized, moreover, that a manager of a corporation occupies a position of trust vis-a-vis the corporation and its shareholders. See United States v. Jolly, 102 F.3d 46, 49 (2d Cir. 1996) ("[M]anagement has substantial discretionary control over corporate assets because [corporate] shareholders cannot engage in direct monitoring of management's conduct. . . .').
It is well-settled that the abuse of trust enhancement is applicable where a defendant breaches his fiduciary duties. In this regard, the Second Circuit has repeatedly held that control over an organization's bank accounts, and the embezzlement of those funds, indicates the type of trust and discretion to which the abuse of trust enhancement applies. See Barrett, 178 F.3d at 646 (abuse of trust enhancement properly applied to corporate executive who used his access to corporate records to create false invoices for check requests and thereby secure funds for himself); Jolly, 102 F.3d at 48-49 (noting that "looting of a corporation would likely lead to an enhancement for abuse of trust if not included in the particular offense characteristic"); United States v. Valenti, 60 F.3d 941, 947 (2d Cir. 1995) (treasurer of apartment association who embezzled association funds abused trust because he had authority to write checks under $1,000, was responsible for financial records, and had sole possession of checkbook).
III. DISCUSSION
A. Ineffective Assistance of Counsel
Nnebe argues that his appellate counsel, Steven Feldman of Feldman Feldman, who was appointed under the Criminal Justice Act, rendered ineffective assistance by failing to appeal the abuse of trust enhancement imposed pursuant to section 3B1.3. The fact that Nnebe's appellate counsel did not challenge the abuse of trust enhancement does not constitute ineffective assistance because that enhancement was entirely proper under the circumstances.
Nnebe maintains that he did not abuse Fargo investors' trust because he did not have a fiduciary relationship with them and never held himself out as their stockbroker or investment advisor. Rather, he asserts that he interacted only at arm's length with investors as the president and CEO of Fargo. However, Nnebe cannot escape liability as a fiduciary by arguing that he held himself out as merely the president of a company seeking capital, not as an investment advisor or money manager. He was the CEO, president, and sole board member of Fargo. As such, he owed fiduciary duties to the corporation's shareholders as a matter of law. See Jolly, 102 F.3d at 48 ("A corporation's management of course owes a fiduciary obligation to shareholders."). Nnebe's crimes abused that trust.
At sentencing, this Court correctly found that Fargo's shareholders were the direct victims of the charged offenses and they suffered harm — including massive financial loss — through classic forms of fiduciary abuse: misappropriation of corporate assets and false reporting of the corporations' operational plans and financial condition by a corporate executive. As this Court stated:
It is conceded here that Mr. Nnebe was not acting as a broker; and, therefore, he was not using his special skill as a broker. However, he was a CEO and the sole [board member] of Fargo Holdings, and that is a position of trust, and he spoke to investors himself in that capacity and he made false statements to them, and they obviously believed him and they made these investments.
Sent. Tr. at 23.
[T]he government proved at trial that Mr. Nnebe controlled the Fargo Holdings bank accounts, that he embezzled funds of Fargo Holding[s], and by doing that, he breached the trust and discretion to which the CEO has in governing the company, and that the abuse of trust enhancement, therefore, must apply, [and] is most definitely warranted.Id. at 24.
Nnebe was President and CEO of Fargo; he was its sole director; he had check-signing power; no one held a higher position at Fargo. Nnebe enjoyed unsupervised discretion over the disbursement of Fargo's funds. Indeed, as Nnebe admitted at trial, in the Private Placement Memoranda he sent to prospective investors, he explained that he had "sole discretion" to determine the expenditure and investment of Fargo's funds. Such unfettered, unreviewable discretion is the "primary trait" showing a position of trust because that position "provides the freedom to commit a difficult-to-detect wrong." United States v. Laljie, 184 F.3d 180, 194 (2d Cir. 1999) (internal quotation marks and citation omitted) ("Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature.").
Nnebe had a duty to exercise that discretion for the benefit of Fargo's shareholders and to put Fargo's funds to their intended use. Instead, he used that discretion to deplete all of the investors' funds, largely for the enrichment of himself, his family, and his co-conspirators. Nnebe also abused his discretion by repeatedly lying about Fargo's nonexistent day trading and blue jeans manufacturing activities, the excessive commissions paid to Fargo's salespeople, and the corporation's purported plans to become listed on the NYSE and NASDAQ. These lies "prevented [the shareholders] from making informed decisions regarding company officers and the propriety of retaining or buying more . . . stock." United States v. Moskowitz, 215 F.3d 265, 272 (2d Cir. 2000), abrogated on other grounds by Crawford v. Washington, 124 S. Ct. 1354 (2000).
In support of his argument that he did not legitimately occupy a position of trust, Nnebe relies on United States v. Echevarria, 33 F.3d 175 (2d Cir. 1994). That case, however, is distinguishable. There, the Court of Appeals explained that section 3B1.3 is "directed at the special opportunities for criminal conduct that are available to those who legitimately occupy positions of public or private trust." Id. at 181 (emphasis in original). Because Echevarria was only pretending to be a doctor of medicine, and because that misrepresentation was already punished by the underlying convictions, the Second Circuit held that section 3B1.3 did not apply. See id.
Nnebe seeks in vain to fit within the Echevarria exception by contending that he did not "legitimately" occupy a position of trust because his broker's license was inactive at the time of the offenses. That argument, however, completely ignores the fact that he was the President, CEO, and sole director of Fargo. Nnebe's position as CEO and sole director gave him unreviewable discretion over the corporation's finances and bank accounts. That discretion provided him with the freedom to loot the corporation's assets and certainly made it difficult for the shareholders to detect his crimes. It was these positions of trust that he was found to have exploited, not his position as a stockbroker.
In sum, given Nnebe's gross abuse of his discretion over all of the shareholders' money, there can be no question that the abuse of trust enhancement was warranted. Therefore, Nnebe's appellate counsel cannot be said to have fallen below "an objective standard of reasonableness" by not appealing the abuse of trust enhancement. Furthermore, because an appeal of that enhancement would have been futile in this case, Nnebe cannot establish prejudice. Accordingly, Nnebe's ineffective assistance of counsel claim must fail. B. Petitioner's Blakely Claim
In his Answer to Government's Response in Opposition to Michael Nnebe's Petition Pursuant to 28 U.S.C. § 2255 ("Answer"), Nnebe argues that if his appellate counsel failed to file a writ for a petition of certiorari to the Supreme Court, which appears to be the case, that failure would also establish ineffective assistance of counsel which could only be remedied by granting "a belated appeal to the Supreme Court." Answer at 3. This argument is without merit. The Supreme Court has held that a criminal defendant does not have a constitutional right to counsel to pursue applications for review in that Court. See Wainwright v. Torna, 455 U.S. 586, 587 (1982) (citing Ross v. Moffitt, 417 U.S. 600 (1974)). Because Nnebe had no constitutional right to counsel in connection with the filing of a certiorari petition, he could not be deprived of the effective assistance of counsel by his attorney's failure to file such petition. See Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir. 1989) (" Torna, which compels the result in this case, rests on a single proposition: If a state is not constitutionally required to provide a lawyer, the constitution cannot place any constraints on that lawyer's performance."). Absent a violation, there can be no remedy. Accordingly, plaintiff's request for a "belated appeal" to the Supreme Court is denied.
Relying on Blakely v. Washington, 124 S. Ct. 2531 (2004), Nnebe argues that his sentence cannot stand because it allegedly contains 24 levels of unconstitutional enhancements, based on facts not found by the jury. Because Nnebe's conviction became final before the Blakely decision was issued, he cannot benefit from that decision. In Carmona v. United States, 390 F.3d 200 (2d Cir. 2004) (per curiam), the Second Circuit analyzed whether Blakely represents a new rule of constitutional law that the Supreme Court has made retroactive on collateral review.
The Second Circuit affirmed Nnebe's conviction on December 17, 2003. Finality attaches when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527, 532 (2003) ("We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires."). Under Supreme Court Rule 13, a petition for a writ of certiorari is timely if filed within 90 days after entry of judgment. See Sup. Ct. R. 13(1). Therefore, because Nnebe's counsel did not file a petition for a writ of certiorari, Nnebe's conviction became final on or about March 17, 2004. Blakeky was decided on June 24, 2004, over three months later.
In Tyler v. Cain, 533 U.S. 656 (2001), the Supreme Court considered retroactivity in regard to second or successive petitions and clarified that a rule of constitutional law only applies retroactively on collateral review if "the Supreme Court holds it to be retroactive." Id. at 663. Blakely itself stated nothing about its retroactivity. To date, the Supreme Court has not, in any other case, announced Blakely to be a new rule of constitutional law, nor has the Court held it to apply retroactively on collateral review. Therefore, this Court will not consider granting authority to file second/successive petitions based on Blakely until the Supreme Court makes Blakely retroactive on collateral review.Id. at 202 (parallel citations and footnotes omitted). The above analysis applies with equal force to a timely habeas petition. Until the Supreme Court states otherwise, Blakely is not to be applied retroactively on collateral review of any kind. Nnebe's Blakely claim must therefore be dismissed.
Since the Blakely decision, the Supreme Court has decided United States v. Booker, 125 S. Ct. 738 (2005). However, in Booker, the Supreme Court noted that its holdings in that case apply to 'all cases on direct review" but made no explicit statement of retroactive application to collateral attacks on final judgments. Id. at 769. Accordingly, neither Booker nor Blakely apply to Nnebe's collateral challenge. See Green v. United States, ___ F.3d ___, No. 04-6564, 2005 WL 237204, at *1 (2d Cir. Feb. 2, 2005).
IV. CONCLUSION
For the foregoing reasons, plaintiff's section 2255 petition is dismissed. There remains the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)). Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this case.
SO ORDERED.