Opinion
Civ. File No. 04-3517 (PAM/JSM).
October 4, 2004
ORDER
This matter is before the Court on Petitioner's objections to United States Magistrate Judge Mayeron's Report and Recommendation (RR) dated August 29, 2004. Pursuant to statute, the Court has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.1(c). Based on that review and the Petitioner's arguments, the Court adopts the RR.
Magistrate Judge Mayeron recommended that Petitioner's Petition for Writ of Habeas Corpus relief under 28 U.S.C. § 2241 be dismissed for lack of jurisdiction. While the Court struggles to discern Petitioner's objections, it appears that he raises three points of contention: (1) that the Magistrate Judge mistakenly relied on Blakely v. Washington, and that Apprendi v. New Jersey provides the proper legal basis for his release; (2) that the Magistrate Judge erred in relying on United States ex rel Perez v. Warden, FMC Rochester to support her finding that a federal prisoner cannot bring a claim for Apprendi relief in a petition for writ of habeas corpus, and also in supporting her finding that 28 U.S.C. § 2255 was not an inadequate or ineffective means for relief; and (3) that the Magistrate Judge erred in stating that Petitioner had not offered any factual or legal reasoning in support of his petition.
DISCUSSION
A. 28 U.S.C. § 2255 and 28 U.S.C. § 2241
Petitioner must rely on 28 U.S.C. § 2255 to assert a collateral challenge to his detention unless the statute proves to be "inadequate or ineffective" to test the legality of his detention. 28 U.S.C. § 2255; Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003). Once a defendant challenges a conviction under 28 U.S.C. § 2255, he or she is barred from pursuing a second application without the approval of the Court of Appeals in the circuit where the defendant was convicted. 28 U.S.C. §§ 2244 (b)(3) and 2255. Petitions brought pursuant to 28 U.S.C. § 2255 will also fail if they are not brought within the one-year statute of limitations. 28 U.S.C. § 2255.
Based on this procedural framework, the only way that Petitioner may proceed under 28 U.S.C. § 2241 is if there has been a new rule of law after his initial § 2255 Motion. See In re: Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Since Petitioner's last § 2255 motion, the Supreme Court of the United States decided Blakely v. Washington, 124 S.Ct. 2531 (2004). Thus, this Court only has jurisdiction over the petition ifBlakely provides Petitioner with relief.
However, the court finds that Blakely does not apply to Petitioner and therefore, this Court does not have jurisdiction to hear his petition pursuant to § 2241. Additionally, this Court does not have jurisdiction pursuant to § 2255 because Petitioner is barred from pursuing such relief, as he has already sought relief once under the statute. Moreover, his petition is also barred by the statute of limitations.
B. Apprendi v. New Jersey
The Magistrate Judge relied on Blakely to address Petitioner's claim because he did not state what new constitutional law caused his plea to be invalid. Petitioner argues that the Magistrate Judge should have applied Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) to his sentencing because it was decided prior to his sentencing hearing. The Court finds that Petitioner's objection to an analysis of his petition underBlakely without merit.
The Magistrate Judge properly applied Blakely because it is the only change in law that has occurred since Petitioner's last application for relief that would reasonably permit this Court to exercise jurisdiction. Furthermore, Petitioner's objection is baseless because the Magistrate Judge correctly found that neither Apprendi nor Blakely have retroactive application.
In Apprendi, the United States Supreme Court held that any fact that is used to increase a defendant's sentence beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. 530 U.S. at 489. Apprendi did not make it impermissible for judges to use their discretion when imposing a judgment within a statutory sentencing range. Id. at 481.
The record shows that on May 15, 2000, Petitioner plead guilty to a one-count indictment charging a violation of 18 U.S.C. § 2251(a). At the time of his plea, the statutory penalty required a minimum mandatory sentence of ten years' imprisonment, and a maximum of twenty years. While the court was not provided with any sentencing transcripts, Petitioner's objection states that he was sentenced to a term of one hundred and forty (140) months' imprisonment on Monday, July 17, 2000.
Petitioner received just over eleven and one half years imprisonment, which is slightly longer than the statutory ten year minimum, but well within the statutory range. Thus, because the sentencing court sentenced Petitioner within the statutory range, Apprendi will not afford him relief. C. United States ex rel Perez v. Warden, FMC Rochester and 28 U.S.C. § 2255
While Petitioner begins by asserting that the Magistrate Judge erred by applying Blakely instead of Apprendi, he summarily argues that Blakely overruled Apprendi. Blakely was decided after Petitioner was sentenced. However, as explained in the Magistrate Judge's RR, Blakely is not retroactively applicable on collateral review. In re: Dean, 375 F.3d 1287, 1290 (11th Cir. 2004); Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004). Therefore, the Court will not address whether Blakely has any substantive application in this matter.
Petitioner also objects to the Magistrate Judge's findings, arguing that United States ex rel Perez v. Warden, FMC Rochester, 286 F.3d 1059 (8th Cir. 2002) is inapplicable to his situation. The Court finds that the Magistrate Judge was correct in applying Perez to Petitioner's situation. In Perez, the Court held that habeas corpus petitioners who are deniedApprendi relief after filing a § 2255 motion may not turn to § 2241 as an alternative means to do so. Id. at 1062. Apprendi has no retro-active application, and therefore Petitioner's request under § 2255 substantively fails, not because § 2255 is procedurally ineffective.
Contrary to Petitioner's assertion, Perez is directly applicable to the case at bar. Petitioner has already raised § 2255 complaints, which have been denied, and now attempts to raise a claim for Apprendi relief under § 2241. As noted above, Petitioner was properly sentenced under Apprendi. Further, as stated in Perez, Apprendi does not afford relief to Petitioner, because procedurally Apprendi has no retroactive application. Moreover, even if Apprendi retroactively applied, Petitioner nonetheless fails to state an adequate claim for relief under Apprendi.
Petitioner is also barred from asserting Blakely as a means to argue that § 2255 is ineffective. Even if Petitioner had a substantive claim for relief under Blakely, it would fail underPerez. Like Apprendi, Blakely cannot be used to attack the effectiveness of § 2255 because the Supreme Court has not held it to be retroactively applicable. Thus Blakely is likewise a substantive bar from relief. See In re: Dean, 375 F.3d 1287, 1290 (11th Cir. 2004); see also Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004).
D. Petition's Factual Basis
Finally, Petitioner asserts that his petition is supported by the sentencing transcript. However, this transcript is not part of the Court's record. Therefore, Petitioner's argument on this point fails.
CONCLUSION
The Court finds that Petitioner has not asserted a valid basis for the Court to exercise its jurisdiction to hear an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. As the statute requires, the Court has reviewed the record regarding the RR. Based on the review and all the submissions of the parties, the Court ADOPTS the RR. Accordingly, IT IS HEREBY ORDERED that Petitioner's application for habeas corpus relief under 28 U.S.C. § 2241 (Docket No. 1) is DISMISSED for lack of jurisdiction.
LET JUDGMENT BE ENTERED ACCORDINGLY.