Opinion
Civil Action No. 4:04-CV-326-Y, (Consolidated with actions 4:04-CV-327-Y through 4:04-CV-330-Y).
August 27, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this consolidated action brought by petitioner James Harmon Jaubert Jr. under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on July 28, 2004; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on August 17, 2004.
The Court, after de novo review, finds and determines that the Petitioner's objections must be overruled, and that the petition for writ of habeas corpus should be dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244 (d) (1)-(2), and alternatively, denied on the merits, for the reasons stated in the magistrate judge's findings and conclusions, and as set forth herein.
In his written objections to the magistrate judge's report and recommendation that this petition be deemed time-barred, Jaubert contends that the limitation period should not commence when his conviction was final without a direct appeal, arguing that because the denial of a timely direct appeal amounted to a denial of due process of law, it would now be a denial of due process of law to commence the statute of limitations upon that date of finality. But the magistrate judge recognized that Jaubert was entitled to tolling under 28 U.S.C. § 2244(d) (2) for all of the time associated with Jaubert's first application for writ of habeas corpus and the resulting out-of-time appeal process, as well as the time of the pendency of the second application for writ of habeas corpus. Thus, the application to Jaubert of the § 2244(d) (1) (A) limitation provision is not a denial of due process of law. His objections are overruled.
Jaubert also objects to the magistrate judge's alternative findings, conclusions and recommendation to deny the petition on the merits. Jaubert's claims violations of his right to due process of law based upon the allegation that the state failed to provide notice to him of its intent to introduce evidence of extraneous matters, and that counsel was ineffective for failing to request notice of the state's intention to introduce such evidence. Jaubert now contends that the magistrate judge should have considered Wiggins v. Smith, 123 S.Ct. 2527 (2003). But the Supreme Court's opinion in Wiggins involves counsel's failure to investigate mitigating evidence on behalf of a capital defendant, not counsel's failure to request notice of the prosecution's potential use of extraneous matters. The case does not change the magistrate judge's analysis. Furthermore, Jaubert argues that the Supreme Court's decision in Blakely v. Washington, 124 S.Ct. 2531 (2004) provides him relief. But Blakely involves constitutional limitations on the right of a judge at sentencing to consider aggravating factors to assess a sentence beyond the facts reflected in a jury's verdict or admitted to in a plea. It has no application to a jury's imposition of sentence, and as Jaubert was sentenced by a jury, Blakely does not apply to this case. Jaubert's additional objections are overruled.
See Wiggins, 123 S.Ct. at 25534-2543.
Blakely, 124 S.Ct. at 2536-38.
Furthermore, the Blakely decision does not appear to be retroactive to cases on collateral review. The Supreme Court did not suggest that its holding would apply retroactively. See generally Blakely, 124 S.Ct. at 2539-43. The Eleventh Circuit Court of Appeals recently issued an opinion finding that Blakely was not applicable to cases already final, and that opinion is instructive:
[T]he same day the Supreme Court decided Blakely, the Court also issued its decision in Schiro v. Summerlin, 124 S.Ct. 2519, 2004 WL 1402732 (U.S. June 24, 2004), holding that Ring v. Arizona, 536 U.S. 584 (2002), which extended application of Apprendi to facts increasing a defendant's sentence from life imprisonment to death, is not retroactive to cases on collateral review. Schiro, 124 S.Ct. 2519, 2-4 WL 1402732, at **4-7; see also Blakely, 2004 WL 1402697, at *16 (O'Connor, J. dissenting) (recognizing the Court's holding in Summerlin "that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review").In re Dean, No. 04-13244, 2004 WL 1534788, at *3 (11th Cir. July 9, 2004).
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Petitioner's consolidated petition for writ of habeas corpus be, and is hereby, DISMISSED WITH PREJUDICE, and alternatively, DENIED.