Opinion
Civil No. 04-CV-40238, Crim. No. 01-CR-50005.
March 24, 2006
ORDER RE "PETITIONER'S MOTION TO EXPAND DUE TO THE RECENT RULING IN UNITED STATES vs. BOOKER"
This cause is before the Court on "Petitioner's Motion to Expand Due to The Recent Ruling in United States vs. Booker," filed on March 16, 2006. Petitioner is requesting to add a claim to his Motion to Vacate, pursuant to 28 U.S.C. § 2255, which was previously filed on August 19, 2004.
Claims that a sentence was imposed in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), are now governed by the intervening decision in United States v. Booker, 534 U.S. 220, 125 S.Ct. 738 (2005), and are not retroactive. Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005). Humphress argued that his sentence was imposed in violation of Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, because the trial judge increased his sentence based on findings of fact made by the judge. In Booker, 534 U.S. at 244, which applied the Blakely reasoning to the Federal Sentencing Guidelines, the Court held that "[a]ny 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. at 756. The Court "conclude[s] that Booker's rule does not apply retroactively in collateral proceedings." Humphress, 398 F.3d at 860. Therefore, any argument regarding Blakely or Booker fails because neither is retroactive to the present case.
Therefore, "Petitioner's Motion to Expand Due to The Recent Ruling in United States vs. Booker," is DENIED.
IT IS SO ORDERED.
The parties are hereby informed that any objection to this Order must be filed with the district court within ten days after being served with a copy thereof, pursuant to Fed.R.Civ.P. 72(a).