Opinion
Case No. 1:05-CV-190, (Criminal Case No. 1:99-CR:127-01).
April 7, 2005
OPINION
This Court has before it Terrance Antonio Baldwin's ("Petitioner") Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. Promptly after the filing of a § 2255 motion, the Court must undertake a preliminary review of the Motion to determine whether "it plainly appears from the face of the motion and the annexed exhibits" that Petitioner is not entitled to relief in the district court. Rule 4, Rules Governing § 2255 Cases. If so, the Court "shall make an order for its summary dismissal." Id. A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. See Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999) (applying Rule 4 to petition filed under 28 U.S.C. § 2254). After undertaking the review required by Rule 4, the Court concludes that Petitioner is not entitled to relief.
I. Procedural History.
On December 6, 1999, Petitioner pled guilty to Count One of armed bank robbery in violation of 18 U.S.C. § 2113 (a) and (d); and Count Four of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). On May 25, 2000, this Court sentenced Petitioner to 188 months incarceration on Count One and 84 months incarceration on Count Four to be served consecutively. Petitioner appealed his sentence to the Court of Appeals for the Sixth Circuit. The Court of Appeals affirmed his sentence on April 23, 2002, and issued a Mandate on May 15, 2002. Petitioner did not petition for certiorari to the United States Supreme Court.
On March 14, 2005, Petitioner filed his Motion under 28 U.S.C. § 2255. The essence of this petition is that this Court violated Petitioner's Sixth Amendment rights by enhancing Petitioner's sentence from a base offense level of 19 to a base offense level of 34 for using a firearm in a crime of violence, for being over eighteen years old, and for being a career offender. (Petitioner's § 2255 Motion at 5). Although not cited, Petitioner apparently refers to Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004) and United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). In Blakely, decided last summer, the Supreme Court held that a Washington state trial judge's enhancement of a defendant's sentence based on the judge's finding of deliberate cruelty violated the defendant's Sixth Amendment right to a trial by jury. The decision called into question the constitutionality of both Washington state's sentencing guidelines and the federal sentencing guidelines. In Booker, decided this January, the Supreme Court addressed whether the federal sentencing guidelines and enhancement provisions violate a defendant's Sixth Amendment rights. The Supreme Court concluded that the mandatory federal sentencing guidelines are subject to the jury trial requirements of the Sixth Amendment. However, the application of the federal guidelines does not violate a defendant's constitutional rights so long as the guidelines are advisory rather than mandatory.
II. Time Barred.
Petitioner's claim for a violation of Blakely and Booker is untimely under the statute of limitations provision set forth at 28 U.S.C. § 2255. This provision provides that the one year statute of limitations begins to run from the latest of several dates, including "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. The Sixth Circuit has held that:
When a federal criminal defendant takes a direct appeal to the court of appeals, his judgment of conviction becomes final for § 2255 purposes upon the expiration of the 90-day period in which the defendant could have petitioned for certiorari to the Supreme Court, even when no certiorari petition has been filed.Sanchez-Castellano v. United States, 358 F.3d 424, 426-27 (6th Cir. 2004) (citing Clay v. United States, 537 U.S. 522, 532, 123 S. Ct. 1072 (2003)). Here the one year statute of limitations would have commenced ninety days after the Sixth Circuit issued its opinion on April 23, 2002. Sup. Ct. Rule 13. Thus, Petitioner would have had until July 22, 2003 to file his § 2255 petition or any supplements to that petition. Because the petition was not filed until March 14, 2005, it is untimely under this provision.
In limited circumstances, the statute of limitations may also begin to run from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255. Here, although Blakely was decided on June 24, 2004 and Booker was decided January 12, 2005, the Sixth Circuit has clearly stated that neither case can be applied retroactively to cases on collateral review. See Humphress v. United States, 398 F.3d 855, 860-863 (6th Cir. 2005). Therefore, Petitioner's claim is untimely.
III. Blakely and Booker Relief Cannot be Applied Retroactively.
Furthermore, Petitioner's claim fails because the Sixth Circuit has explicitly held that the new procedural rules set forth in Blakely and Booker do not apply retroactively to cases on collateral review. See Humphress v. United States, 398 F.3d 855, 860-863 (6th Cir. 2005). In Humphress, the district court had enhanced the Petitioner's sentence by nine points based on factual findings, at least some of which had not been found by the jury. The Petitioner filed a § 2255 motion, claiming that the enhanced sentence violated Blakely. Because Booker was decided after the Petitioner had filed his motion, the Sixth Circuit also considered Booker in its analysis. It concluded that, although Booker and Blakely were "new rules" of criminal procedure, they did not meet the criteria required to be applied retroactively to cases on collateral review set forth by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). Specifically, the new rules do not forbid punishment of certain primary conduct or prohibit a certain category of punishment for a class of defendants because of their status or offense. See Humphress, 398 F.3d at 860-863. Furthermore, they are not "watershed rules" that implicate the fundamental fairness and accuracy of the criminal proceeding. See id. Accordingly, Petitioner's claim must fail.
IV. Booker Relief Does Not Apply for Enhancement For Career Offender Status.
Furthermore, the Sixth Circuit Court of Appeals has held that enhancement of a defendant's sentence due to his status as a career offender does not violate Booker or the defendant's Sixth Amendment right to trial by jury. See United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005).
As an initial matter, [Defendant] is mistaken in contending that his sentencing enhancement violates the Sixth Amendment, even after Booker. [Defendant's] enhancement arose from his status as a "career offender" under § 4B1.1 of the Sentencing guidelines, to which he stipulated in his plea agreement. . . . Even had the parties disputed the fact of [Defendant's] prior convictions, moreover, his sentence stems from the very type of recidivism enhancement that Almendarez-Torres v. United States, 523 U.S. 224 (1998), held need not be charged and proved before a jury. From Apprendi to Blakely to Booker, the Court has continued to except such factfinding from the requirements of the Sixth Amendment. See Booker, 125 S. Ct. at 756 ("Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.").Id. Therefore, Petitioner's claim fails on the merits and must be dismissed.
V. No Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2255 Cases is a determination that the § 2255 motion, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Commissioner of Correction of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was "intrinsically contradictory" to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." The Court finds that reasonable jurists could not find that this Court's dismissal of Petitioner's claim was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability.
Conclusion
For these reasons, Petitioner's § 2255 Motion (docket no. 1) will be DENIED pursuant to Rule 4 of the Rules Governing § 2255 Cases. In addition, a certificate of appealability will be DENIED as to each issue raised by Petitioner because he has failed to make a "substantial showing of a denial of a constitutional right."
A separate order will issue.