U.S. v. Sturgeon

Full title: UNITED STATES OF AMERICA, Respondent, v. JANEL R. STURGEON, Petitioner

Court: United States District Court, S.D. Ohio, Western Division at Dayton

Date published: Feb 14, 2006

Case No. 3:04CR044, No. 3:05CV025 (S.D. Ohio Feb. 14, 2006)

Opinion

Case No. 3:04CR044, No. 3:05CV025.

February 14, 2006

REPORT AND RECOMMENDATIONS ¹

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendations.

SHARON OVINGTON, Magistrate Judge

This case is before the Court upon Petitioner's Motion to Vacate, Correct, or Set Aside Sentence pursuant to 28 U.S.C. § 2255 (Doc. #23), the Respondent's Answer (Doc. #25), Petitioner's Response (Doc. #26), and the record as a whole. Petitioner's sole ground for relief is that her sentence was unconstitutionally enhanced in violation of the Sixth Amendment of the United States Constitution and Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).

On March 24, 2004, a two-count Indictment was returned charging Petitioner with Forgery of Treasury Checks in violation of 18 U.S.C. § 510 (a) (2) and Theft of Mail by a Postal Employee in violation of 18 U.S.C. § 1709. (Doc. #2).

On June 30, 2004, Petitioner entered into a plea agreement wherein she agreed to plead guilty to Theft of Mail by a Postal Employee. (Doc. #15). Thereafter on October 27, 2004 the Court imposed sentence. (Doc. #19). Petitioner did not appeal. On January 20, 2005, Petitioner filed the instant Motion to Vacate pursuant to 28 U.S.C. § 2255. (Doc. #23).

Petitioner claims that her sentence was unconstitutionally enhanced in violation of Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). However, the Sixth Circuit Court of Appeals has held that the Blakely decision (as well as the subsequent case of United States v. Booker, 125 S. Ct. 738 (2005) is not applicable to cases on collateral review, i.e., cases brought under 28 U.S.C. § 2255. Humphress v. United States, 398 F.3d 855 (6^th Cir. 2005). Petitioner's case is clearly brought on collateral review after her case became final. Sturgeon's § 2255 petition is therefore not well taken and should be denied with prejudice. Reasonable jurists would not disagree with the foregoing analysis. Thus, Sturgeon should also be denied both a certificate of appealibility and leave to proceed in forma pauperis.

IT IS THEREFORE RECOMMENDED THAT:

1. Janel R. Sturgeon's Petition to Vacate Sentence (Doc. #23) be DENIED and DISMISSED with prejudice;

2. A certificate of appealability under 28 U.S.C. § 2253(c) not issue; and

3. The case be terminated on the docket of this Court.