Opinion
No. SA-05-CA-0389-RF, [SA-02-CR-0485(1)-EP].
May 27, 2005
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
BEFORE THE COURT is the Petition of Movant Michael Lee McKnight ("Movant") Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Petition") and the Memorandum and Recommendation of a United States Magistrate Judge (Docket No. 42) recommending that the motion be denied. The Magistrate Judge reviewed the instant motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. Movant filed written objections Magistrate Judge's Report. (Docket No. 44). Upon careful consideration, the Court shall DENY Movant's Motion to Vacate because Movant's sentence was not illegally enhanced in violation of the Sixth Amendment and decisions of the United States Supreme Court.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, Movant pled guilty to distribution and possession with intent to distribute 5 grams or more but less than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On February 27, 2003, Movant was sentenced to serve 151 months in prison to be followed by a supervised release term of 5 years. (Docket No. 40) Judgment was entered on March 31, 2003 and Movant did not appeal. The instant motion was filed on April 29, 2005. The Magistrate's Memorandum and Recommendation was filed on May 6, 2005. (Docket No. 42). Movant acknowledged receipt of the Magistrate's report on May 11, 2005.
DISCUSSION
I. Period of Limitations
In the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress set forth a one-year limitations period for filing a motion to vacate sentence under Section 2255. Although AEDPA provides four different events which trigger the limitations period, the relevant time for the purposes of this motion is the date of finality of the judgment. For the purposes of this case, the Magistrate Judge finds that the date occurred when the time for seeking direct review of the conviction entered by the Court of Appeals expired ten days after entry of the judgment. Movant's conviction became final on April 10, 2003. The limitations period thus began running that day and expired on April 10, 2004. As a result, the Magistrate Judge found that the motion, filed over a year after the deadline, was not timely filed and should be dismissed. (Docket No. 42)
The other three events are (1) removal of a government-imposed impediment to filing; (2) recognition of a new right by the Supreme Court; and (3) discovery of the facts in support of the claim.
See FED. R. APP. P. 4(b).
In addition to the date the judgment becomes final, Section 2255 provides that the limitations period can begin to run on the date the constitutional right to be 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. Movant relies upon the Supreme Court's decision in United States v. Booker, which was rendered on January 12, 2005. However, the Supreme Court's decision in Booker is not applicable because the Court held that its ruling applied to cases on direct review and did not apply to cases on collateral review. Thus, the Court may not apply the Booker rule to motions brought pursuant to Section 2255. As a result, the date of the Supreme Court's Booker decision cannot serve as the accrual date for the limitations period under the AEDPA.
125 S.Ct. 738 (2005).
In re Elwood, 2005 WL 976998 (5th Cir. 2005). See United States v. Webster, 392 F.3d 787, 792 (5th Cir. 2004) ( Apprendi is not retroactively applicable to initial habeas petitions under Section 2255); United States v. Price, 400 F.3d 844 (10th Cir. 2005) (holding that Blakeley does not apply retroactively).
II. Waiver of Appeal, Section 2255 Motions
The Magistrate Judge notes that Movant already waived his right to appeal his sentence or to file Section 2255 motions not related to ineffective assistance or prosecutorial misconduct. The right to appeal a sentence based on Apprendi and Booker grounds can be waived in a plea agreement. As a result of this principle, the Court finds that Movant voluntarily relinquished his right to file the Section 2255 motion he seeks to assert here. Based upon these facts, the Magistrate recommends dismissal of the instant motion, either because it was not timely filed or because Movant previously waived his right to file it.
United States v. McKinney, 2005 WL 887153 at *2-3 (5th Cir. 2005).
III. Objections to the Magistrate Judge's Memorandum and Recommendation
The Court reviews a Magistrate Judge's Memorandum and Recommendation de novo if a party files specific objections within ten days of service; otherwise, the Court reviews the report only for clear error. The Local Rules for the Western District of Texas require that the "written objections . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections." Thus, the Court need not consider objections that are frivolous, conclusive, or general in nature.
LOCAL RULE R. 4(b) at App. C ("Assignment of Duties to United States Magistrate Judges").
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
Movant filed his objections to the Magistrate's report, styled as "Appellant's Reply to the Magistrate Judge Report and Recommendation to Appellants 2255(6)(3) Motion" [sic]. (Docket No. 44). In his objections, Movant challenges that Magistrate Judge's conclusions regarding his motion to vacate his sentence pursuant to Section 2255. Movant brings essentially three arguments in support of his objections. The Court turns to these arguments and reviews the Magistrate Judge's findings and recommendations de novo.
1. Objection I: Magistrate Judge Erred in Concluding that Movant's Motion is Untimely Filed
Movant first argues that the Magistrate erred in concluding that his Section 2255 motion was not timely filed under the relevant authorities. Movant argues correctly that, when the Supreme Court declares a newly recognized right, a defendant has one year in which to file motions seeking relief under the new right. Section 2255(3) states that the one-year limitations period under AEDPA begins to run at "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." Movant cites to the Sixth Circuit's decision in Weigand v. United States for the proposition that this Court, rather than the Supreme Court, can make the determination that the Supreme Court's holding in Booker is applicable to cases on collateral review.
United States v. Lopez, 248 F.3d 427 (5th Cir. 2001).
380 F.3d 890, 892 (6th Cir. 2004).
It is true as Movant argues pursuant to the Sixth Circuit's decision in Weigand, that, absent explicit statement by the Supreme Court to the contrary, this Court may make the determination as to whether Booker applies retroactively. Generally speaking, when a Supreme Court case establishes a new rule, it is applicable to criminal cases that are then on direct appeal. However, a new Supreme Court rule applies more narrowly to convictions that have become final. If the new rule is substantive in nature, then it applies retroactively to final convictions. If it is procedural, then it does not apply retroactively because it does not "produce a class of persons convicted of conduct the law does not make criminal." This class of rules is narrow indeed.
Wiegand, 380 F.3d at 892-93 (stating that the district court should decide retroactivity in a first instance). See also Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) ("Every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of [Section 2255(3)].").
Schriro v. Summerlin, 124 S.Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, 124 S.Ct. at 2522.
Id. ("This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. Such rules apply retroactively because they "necessarily carry a significant risk that a defendant stands convicted of `an act that the law does not make criminal' "or faces a punishment that the law cannot impose upon him.") (citations omitted).
Id. at 2523.
Id.
The Booker Court considered whether Apprendi and later cases applied to the Sentencing Guidelines, and if they did apply, what portions of the guidelines remained in effect. Booker reaffirmed Apprendi, holding that any fact necessary to support a sentence "exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict" had to be admitted by the defendant or proved by a jury. Booker also removed the provision removing the Court's discretion to apply the sentencing guidelines.
See United States v. Booker, 125 S.Ct. at 747 n. 1 (stating the questions presented for review); Apprendi v. New Jersey, 530 U.S. 466 (2000).
Id. See 18 U.S.C. § 3553(b)(1).
The Supreme Court's decision in Booker was based entirely on the Sixth Amendment guarantee of trial by jury is a procedural decision. The Booker decision impacted how courts determine whether a defendant's conduct punishable, but did not provide new substantive rights. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Thus, Booker does not apply retroactively to cases — like the one before the Court — that became final prior to January 12, 2005.
See Schriro, 124 S.Ct. at 2523.
Id. Appellate courts around the country have agreed with this analysis. See McReynolds v. United States, 397 F.3d 479 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005."); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) ( Booker does not apply retroactively to cases already final on direct review); Guzman v. United States, 2005 WL 803214 at *1 (2d. Cir. Apr. 8, 2005) (same); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) ( Booker does not apply to initial habeas corpus petitions brought pursuant to Section 2255).
Id.
For this reason, the Court finds that Movant is afforded no relief under the Supreme Court's decision in Booker. As a result, the Court finds that the Magistrate Judge's determination that Movant's Section 2255 motion was not timely filed is correct. Accordingly, the Court adopts this portion of the Magistrate's report.
2. Objection II: Magistrate Judge Erred in Concluding that Movant Waived Right to File Motion
Movant also argues that his waiver was ineffective because the type of claim he seeks to assert — that his sentence exceeded the applicable statutory maximum — was specifically exempted from the waiver he signed. Movant argues that, pursuant to the Fifth Circuit's recent decision in United States v. Hollins, even a valid waiver of appeal rights does not preclude a claim that a criminal sentence exceeds the statutory maximum. In Hollins, the Fifth Circuit confronted a situation similar to the one before this Court, but with important differences. There, the court confronted the question of whether the defendant's waiver of his right to collateral attack on his sentence could seek relief from the district court based upon ineffective assistance of counsel. Thus, the movant in that case sought to attack his sentences because they exceeded the statutory maximums based on his counsel's failure to object to or appeal his excessive sentences. Movant here does not make any such claims and, in any case, the Magistrate found that his particular waiver excluded review based upon ineffective assistance of counsel or prosecutorial misconduct.
United States v. Hollins, 97 Fed. Appx. 477, 479 (5th Cir. 2004) (slip opinion).
Id.
The Fifth Circuit generally recognizes and enforces a defendant's informed and voluntary waiver of his right to post-conviction relief. In fact, the Fifth Circuit has recognized only "one exception to this general rule: an ineffective-assistance claim survives a § 2255 waiver, but `only when the claimed [ineffective] assistance directly affected the validity of that waiver or the plea itself.'" Recently, the Fifth Circuit recognized that defendants could waive their right to seek collateral review of their sentences based on Booker, even when they waived such rights long before the decision in Booker was issued. As a result, the Court finds that Movant's arguments that he could not constitutionally waive his right to attack his sentence is without merit. The Court thus finds that the Magistrate Judge's findings and recommendations were accurate and, based upon its de novo review, the Court adopts them in their entirety.
Id. See also United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per curiam).
Hollins, 97 Fed. Appx. at 479. See also United States v. White, 307 F.3d 336, 343 (5th Cir. 2002).
McKinney, 2005 WL 887153 at *2-3.
Based upon its review of the Magistrate Judge's report and recommendation, the Court finds that the instant motion should be dismissed either for failure to timely file or because Movant waived his right to file such a motion. Therefore, the Court will deny Movant's Petition under 28 U.S.C. § 2255.
CONCLUSION
Accordingly, it is ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is hereby DENIED.
It is further ORDERED that the Memorandum and Recommendation of the United States Magistrate Judge be ADOPTED IN ITS ENTIRETY.
FINAL JUDGMENT
On this day the Court entered an order dismissing Movant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. The Court now enters its Final Judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.It is ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be DISMISSED WITH PREJUDICE.
It is ORDERED that each party bear its own costs.
It is ORDERED that all pending motions be DENIED AS MOOT.