Scott v. U.S.

Full title: KARL LOUIS SCOTT, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, M.D. Georgia, Albany Division

Date published: Dec 9, 2005

Nos. 1:05-CV-14 (WLS), 1:03-CV-7 (WLS) (M.D. Ga. Dec. 9, 2005)

Opinion

Nos. 1:05-CV-14 (WLS), 1:03-CV-7 (WLS), 28 U.S.C. § 2255.

December 9, 2005

ORDER

W. SANDS, Chief Judge

Before the Court is a Report and Recommendation from United States Magistrate Judge G. Mallon Faircloth (Tab 93), filed September 16, 2005. It is recommended that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant 28 U.S.C. § 2255 be denied. (Tab 77). Petitioner has filed a timely objection to the Report and Recommendation. (Tab 95). The Government has filed a response to the objection. (Tab 97).

In his objection to the recommendation, Petitioner is essentially changing arguments after the fact. It is clear from Petitioner's pleadings that he believes trial counsel was ineffective for failing to appeal his sentence which he contends violated Apprendi v. New Jersey, 530 U.S. 466 (2000). As the Magistrate Judge correctly points out, Apprendi did not apply to the guidelines. Petitioner's pleadings also reveal that he believes his claims are subject to Blakely v. Washington 124 S.Ct. 2531 (2004) and United States v. Booker-Fanfan, 125 S.Ct. 738 (2005). Again, as the Magistrate Judge correctly pointed out,Blakely and Fanfan have no retroactive effect. Petitioner now concedes those arguments and just argues that he asked his lawyer to appeal his sentence and therefore, should be granted an out-of-time appeal. It is clear from the record that the Magistrate Judge concluded there was insufficient evidence to establish that Petitioner asked his attorney to appeal. Further, without the Apprendi, Blakely, and Fanfan arguments Petitioner cannot appeal his sentence because he waived his right to appeal his sentence, absent an upward departure, even if he did ask his attorney to appeal the sentence. (Tab 61). Therefore, the Court rejects and overrules the objection filed by Petitioner.

Upon full consideration of the record, the Court finds that said Recommendation should be and hereby is, ACCEPTED, ADOPTED and made the order of this Court for reason of the findings and reasons set out therein, together with the findings made, reasons stated and conclusions reached herein. Accordingly, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (Tab 77) is DENIED.

SO ORDERED.