U.S. v. Franco

Full title: United States of America, Plaintiff, v. Edward G. Franco, Defendant

Court: United States District Court, D. North Dakota, Northwestern Division

Date published: Feb 28, 2006

Case No. 1:00-cr-31 (D.N.D. Feb. 28, 2006)

Opinion

Case No. 1:00-cr-31.

February 28, 2006

ORDER DISMISSING MOTION

PATRICK CONMY, Senior District Judge

Before the Court is defendant Edward G. Franco's motion pursuant to 28 U.S.C. § 2255. The motion is filed pro se. As grounds for the motion Franco alleges several Sentencing Guideline enhancements were not proven to a jury beyond a reasonable doubt and that the Sentencing Guidelines are no longer mandatory and his sentence was unreasonable. The third ground for relief asserts the Sentencing Guidelines are unconstitutional and is premised upon the opinion of the Supreme Court in United States v. Booker, 125 S.Ct. 738 (2005).

Franco pled guilty, pursuant to a written plea agreement, to one count of assault on a federal officer on July 11, 2000. The Court calculated a total offense level 21, criminal history category VI, and imprisonment range of 77-96 months. Franco was sentenced to 77 months imprisonment on June 27, 2001. No direct appeal was taken. This is Franco's first § 2255 motion.

The Court has reviewed the motion as required by Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will dismiss the motion as it plainly appears that Franco is not entitled to the relief he seeks.

Section 2255 motions are generally covered by a one year statute of limitations. 28 U.S.C. § 2255. Franco was sentenced on June 27, 2001, and did not file the current motion until February 27, 2006. As such, the motion is clearly untimely.

An exception to the one year statute of limitations is made for newly recognized rules of constitutional law. 28 U.S.C. § 2255. New rules of criminal procedure apply only to cases still pending on direct review that have not become final. Never Misses a Shot v. United States, 413 F.3d 781 (8^th Cir. 2005). New substantive rules and new procedural rules of "watershed" magnitude recognized by the Supreme Court will be applied retroactively to movants in collateral proceedings. Id. The Eighth Circuit Court of Appeals, has determined that the new rule announced in Booker is a procedural rule that is not of watershed magnitude. Id. Thus, Booker does not apply to Franco's § 2255 motion as his conviction became final long beforeBooker was decided.

Accordingly, Franco's section 2255 motion (Docket No. 39) is hereby DISMISSED.

The Court certifies that an appeal from the denial of this motion may not be taken in forma pauperis because such a appeal would be frivolous and cannot be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Upon the entire record before the Court, dismissal of the motion is not debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings.Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983). Therefore, a certificate of appealability will not be issued by this court.¹

1 The Court of Appeals for the Eighth Circuit has opined that the district courts possess the authority to issue Certificates of Appealability under Section 2253(c). Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). This ruling does not prevent the defendant from seeking a certificate of appealability from the Court of appeals.

IT IS SO ORDERED.