Opinion
Criminal Case No. 02-50047, Civil Case No. 05-40239.
February 3, 2006
ORDER DENYING PETITIONER'S MOTION TO VACATE SENTENCE
Before the Court is Petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence, filed July 25, 2005. Because Petitioner's "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the Court will deny Petitioner's motion. 28 U.S.C. § 2255 ¶ 2.
Petitioner's sole ground for relief is that his sentence must be vacated because the Court sentenced him under a mandatory guideline regime, in violation of United States v. Booker, 543 U.S. 220 (2005) and Blakely v. Washington, 542 U.S. 296 (2004). At the outset, the Court notes that Blakely is not applicable to Petitioner's sentence because his sentence was imposed in accordance with the United States Sentencing Guidelines. See Id. at 305 n. 9. As for Booker, Petitioner acknowledges that the Sixth Circuit has held in Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir. 2005), that Booker does not apply retroactively on collateral review. Nevertheless, Petitioner asserts that the Supreme Court's denial of a writ of certiorari in Rodriguez v. United States, 125 S. Ct. 2935 (2005), renews this Court's power to decide the retroactivity issue at hand. See Wiegand v. United States, 380 F.3d 890, 892 (6th Cir. 2004) (district courts may decide retroactivity issues).
Petitioner, however, is mistaken. The Supreme Court's refusal to review United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), does not overturn the settled law laid down by Humphress. Humphress is the law of this Circuit, and this Court is bound by it.
Petitioner was sentenced on March 25, 2003 and the judgment and commitment order was entered the same day. Booker was decided on January 12, 2005. Petitioner is attempting to apply Booker retroactively to attack his sentence collaterally, which is not possible.
ACCORDINGLY, IT IS HEREBY ORDERED that Petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence [docket entry 20] is DENIED. IT IS FURTHER ORDERED that if Petitioner desires to seek a certificate of appealability ("COA"), Petitioner may file a MOTION for a COA within TWENTY-ONE (21) DAYS of filing a Notice of Appeal and shall support this motion with an appropriate brief, both of which shall comply with the Local Rules of this Court. See Castro v. United States, 310 F.3d 900, 903 (6th Cir. 2002) ("We do encourage petitioners as a matter of prudence to move for a COA at their earliest opportunity so that they can exercise their right to explain their argument for issuance of a COA."). The Government may file a response with an appropriate brief, both of which shall comply with the Local Rules, within FOURTEEN (14) DAYS of service of Petitioner's motion for a COA.
SO ORDERED.