Opinion
Nos. EV 99-CR-25, 3:05-cv-61-RLY-WGH.
March 2, 2006
Entry Discussing Motion for Relief Pursuant to 28 U.S.C. § 2255
Alfredo Ceballos seeks relief pursuant to 28 U.S.C. § 2255 from his conviction for drug and related offenses. His motion was summarily dismissed "insofar as that motion relies on the argued retroactive application of the rulings in Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005)," and he was given a period of time in which to "set forth what claims from his § 2255 motion, if any, remain viable" following the dismissal of the claims based on Booker. Ceballos has done so, or seems to have done so, but reveals that he continues to challenge solely the manner in which the sentence was imposed vis-a-vis the determination in Booker that the Sentencing Guidelines are no longer mandatory or binding on the court, but are instead advisory. Booker, 125 S. Ct. at 764.
Mr. Ceballos was sentenced more than 18 months before Booker was decided on January 12, 2005. His appeal was dismissed pursuant to the procedure authorized in Anders v. California, 386 U.S. 738 (1967), more than 9 months before Booker was decided. The Seventh Circuit held that the Supreme Court's decision in Booker "does not apply retroactively to criminal cases that became final before its release on January 12, 2005." McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005). The Court of Appeals held that Booker was not retroactive to collateral attacks of sentences because it was not one of those "rare watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. (quoting Schriro v. Summerlin, 542 U.S. 348 (2004)). The different perspective offered in the "statement of remaining concerns" filed by Mr. Ceballos could not be given effect in this proceeding without running afoul of McReynolds. This court has no authority to do so.
On the basis of the foregoing, therefore, any claim remaining in this action following the dismissal of March 24, 2005, is now also summarily dismissed pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings in the United States District Court.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.