Opinion
Case No. 1:05-CV-202 (Criminal Case No. 1:03-CR-44).
April 1, 2005
OPINION
This Court has before it Manuel Barajas' ("Petitioner") Motion To Vacate, Set Aside, Or Correct Sentence Pursuant to 28 U.S.C. § 2255. 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. Facts and Procedural History
Petitioner was charged with illegally re-entering the United States after deportation subsequent to a conviction of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a), 1326(b)(2) and 1101(a). On March 17, 2003, Petitioner pled guilty to the charge. On June 11, 2003, this Court sentenced Petitioner to 66 months incarceration and entered judgment. Petitioner timely appealed to the United States Court of Appeals for the Sixth Circuit on June 19, 2003. The Court of Appeals affirmed the district court's decision on March 19, 2004. Petitioner did not file a writ of certiorari with the United States Supreme Court. Petitioner timely filed the instant § 2255 petition on March 21, 2005. Specifically, Petitioner claims that the Court impermissibly enhanced his sentence in violation of the Constitution and recent Supreme Court law.
II. Petitioner's Blakely and Booker Claim
Petitioner claims that this Court enhanced his sentence in violation of his Sixth Amendment right. This Court imposed one enhancement in the calculation of Petitioner's sentence. Pursuant to U.S.S.G. § 2L1.2(b)(1)(A), the court increased Petitioner's offense level by 16 levels because Petitioner "was deported after a conviction for a felony drug trafficking offense for which the sentence imposed exceeded 13 months." (¶ 20, Presentence Investigation Report.) Petitioner contends that although he pled guilty that he illegally entered the United States after having been deported subsequent to the aggravated felony conviction, "he never plead [sic] or agreed to an enhancement of the offense conduct under U.S.S.G. § 2L1.2.(b)(2)(A) [sic]." (Petitioner's Br. Supp. Mot. at 6.)
In Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), 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.
Later, the United States Supreme Court has decided another case, United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), that addresses whether the federal sentencing guidelines and enhancement provisions violate a defendant's Sixth Amendment rights. In Booker, the Supreme Court concluded that the 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.
Petitioner's claim has no legal merit. Blakely, Booker and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), do not apply to the Court's findings of fact regarding Petitioner's prior convictions. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998). In Almendarez-Torres, the Supreme Court held that recidivism should be treated as a sentencing factor determined by the judge, rather than as a substantive element of the offense determined by the jury. See id. at 243; United States v. Bradley, No. 03-6328, 400 F.3d 459, 2005 WL 549176, at *3 (6th Cir. Mar. 10, 2005) ("Even had the parties disputed the fact of Bradley'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.')"); see also Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254, 1262 (2005) (recognizing that Almendarez-Torres is still good law after the Blakely and Booker decisions). Therefore, this Court properly enhanced Petitioner's sentence based on his prior conviction.
Furthermore, Petitioner's motion fails procedurally because Booker applies only to cases on direct review. The Sixth Circuit has explicitly held that the new procedural rules set forth in Booker do not apply retroactively to § 2255 cases on collateral review. See Humphress v. United States, 398 F.3d 855, 861-862 (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 862. Furthermore, they are not "watershed rules" that implicate the fundamental fairness and accuracy of the criminal proceeding. See id. In the instant case, Petitioner has exhausted his direct appeal, and thus Petitioner's claim must fail.
III. 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, 15 (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. Comm'r of Corr. 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 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.
IV. Conclusion
For the foregoing reasons, Petitioner's request that his sentence be vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255 is denied. This case will be dismissed with prejudice. No certificate of appealability will be issued.
A separate order will issue.