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U.S. v. Harper

United States District Court, N.D. California
Sep 13, 2005
No. CR-89-0097 SI, (Civil No. C 05-1006 SI) (N.D. Cal. Sep. 13, 2005)

Opinion

No. CR-89-0097 SI, (Civil No. C 05-1006 SI).

September 13, 2005


ORDER DENYING MOTION TO SET ASIDE, VACATE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255; AND VACATING BRIEFING SCHEDULE


Now before the Court is petitioner's motion to set aside, vacate or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner argues that his sentence was unconstitutional because he received an enhancement for playing a "Leadership Role" in the criminal offense that violates his Sixth Amendment right as provided in Blakely v. Washington, 542 U.S. 296 (2004) and its progeny.

However, petitioner has been in custody since 1989 and has previously exhausted his direct appeal. See Mot. at 1. Petitioner asks this Court to conduct a collateral review of hisBlakely claim. However, Blakely announced a new constitutional rule of criminal procedure that does not apply retroactively on habeas or collateral review. Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005); see Bey v. United States, 399 F.3d 1266, 1269 (10th Cir. 2005); Green v. United States, 397 F.3d 101, 103 (2nd Cir. 2005); In re Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).

Therefore, petitioner's motion is DENIED. The briefing schedule set out in this Court's Order filed August 23, 2005 is VACATED.

IT IS SO ORDERED.


Summaries of

U.S. v. Harper

United States District Court, N.D. California
Sep 13, 2005
No. CR-89-0097 SI, (Civil No. C 05-1006 SI) (N.D. Cal. Sep. 13, 2005)
Case details for

U.S. v. Harper

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff and Respondent, v. DAVID HARPER…

Court:United States District Court, N.D. California

Date published: Sep 13, 2005

Citations

No. CR-89-0097 SI, (Civil No. C 05-1006 SI) (N.D. Cal. Sep. 13, 2005)