Opinion
Case No. 4:05-CV-12, (Criminal Case No. 1:02-CR-37).
April 7, 2005
OPINION
This Court has before it Rick Allen Sehy's ("Petitioner") Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence. Promptly after the filing of a § 2255 motion, the Court must undertake a preliminary review of the motion to determine whether "it plainly appears from the face of the motion and the annexed exhibits" that Petitioner is not entitled to relief in the district court. Rule 4, Rules Governing § 2255 Cases. If so, the Court "shall make an order for its summary dismissal." Id. A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. See Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999) (applying Rule 4 to petition filed under 28 U.S.C. § 2254). After undertaking the review required by Rule 4, the Court concludes that Petitioner is not entitled to relief.
I. Facts and Procedural History
Petitioner was charged of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(viii). On April 23, 2002, Petitioner pled guilty to the charge. On August 14, 2002, judgment was entered sentencing Petitioner to, among other things, 78 months of incarceration. He was represented by an attorney at all times. Petitioner had 10 days after that date (until August 28, 2002) to file an appeal with the Court of Appeals for the Sixth Circuit. Fed.R.App.P. 4(b), 26(a)(2). Petitioner did not appeal his conviction or his sentence. On February 18, 2005, Petitioner filed a Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255.
II. Statute of Limitations
Petitioner contends that the enhancement of his sentence is illegal according to United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005) and Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). Petitioner also contends that he was prejudiced by the ineffective assistance of counsel because his counsel did not object to the alleged illegal enhancement at sentencing and did not file a notice of appeal within 10 days. However, these two claims are barred by the one year statute of limitations. Under § 2255, Petitioner must have filed his petition within one year after the date on which his judgment of conviction became final. 28 U.S.C. § 2255. The Sixth Circuit has held that when a § 2255 movant does not pursue a direct appeal to the court of appeals, his conviction becomes final on the date on which the time for filing such appeal expired. See Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004). In the instant case, the judgment of conviction became final on August 28, 2002 and Petitioner had until August 27, 2003 to file his § 2255 petition. Because he did not file his petition until February 18, 2005, the petition was untimely.
In certain circumstances, the one year statute of limitations may also begin to run from "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." 28 U.S.C. § 2255. However, as discussed below, the Sixth Circuit has held that the holdings in Booker and Blakely do not apply retroactively to § 2255 cases on collateral review. See Humphress v. United States, 398 F.3d 855, 861-862 (6th Cir. 2005).
III. Petitioner's Booker Claim
In Booker, the Supreme Court addresses whether the federal sentencing guidelines and enhancement provisions violate a defendant's Sixth Amendment rights. The Supreme Court concluded that the federal sentencing guidelines are subject to the jury trial requirements of the Sixth Amendment. However, the application of the federal guidelines does not violate a defendant's constitutional rights so long as the guidelines are advisory rather than mandatory.
Petitioner contends that his sentence is illegal because the judge enhanced the sentence based on the quantity of methamphetamine for which Petitioner was held responsible. Petitioner was held responsible for 2 kilograms of marijuana, which gave Petitioner a base offense level of 34. Petitioner claims his constitutional rights were violated because he did not have a jury trial to determine the quantity of the drug which, in turn, determined the base offense level. Petitioner contends that he should be sentenced based on the default amount of methamphetamine.
Petitioner's motion fails procedurally because Booker applies only to cases on direct review. The Sixth Circuit has explicitly held that the new procedural rules set forth in Booker do not apply retroactively to § 2255 cases on collateral review. See Humphress, 398 F.3d at 861. In Humphress, the district court had enhanced the Petitioner's sentence by nine points based on factual findings, at least some of which had not been found by the jury. The Petitioner filed a § 2255 motion, claiming that the enhanced sentence violated Blakely. Because Booker was decided after the Petitioner had filed his motion, the Sixth Circuit also considered Booker in its analysis. It concluded that, although Booker and Blakely were "new rules" of criminal procedure, they did not meet the criteria required to be applied retroactively to cases on collateral review set forth by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). Specifically, the new rules do not forbid punishment of certain primary conduct or prohibit a certain category of punishment for a class of defendants because of their status or offense. See Humphress, 398 F.3d at 862. Furthermore, they are not "watershed rules" that implicate the fundamental fairness and accuracy of the criminal proceeding. See id. Accordingly, Petitioner's claim must fail.
IV. Petitioner's Ineffective Assistance of Counsel Claim
Petitioner's claim of ineffective assistance of counsel has no merit because he fails the two-prong test in Strickland. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). First, Petitioner must show deficient performance by counsel. This requires that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir. 2001). Second, Petitioner must show actual prejudice due to his counsel's deficient performance. To establish this prejudice, the petitioner must "demonstrat[e] that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Magana, 263 F.3d at 547 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2052). Regalado v. United States, 334 F.3d 520, 524 (6th Cir. 2003).
Petitioner fails the first prong in Strickland because he is not able to show deficient performance by his counsel. Petitioner was sentenced on August 14, 2002, before Booker and Blakely were decided. Petitioner's counsel, therefore, did not fail to act as a reasonable counsel for not having anticipated the Supreme Court's decisions in Booker and Blakely. Competence, not prescience, is what the Constitution requires. Ballard v. United States, No. 03-5117, 2005 WL 549087, at *3 (6th Cir. Mar. 10, 2005) (stating that the court does not require attorneys to foresee changes in the law); see also Green v. United States, 65 F.3d 546, 551 (6th Cir. 1995) (lawyer's failure to predict Sixth Circuit's approach to law did not constitute ineffective assistance of counsel); United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th Cir. 1995) ("Defendant faults his former counsel not for failing to find existing law, but for failing to predict future law. We agree . . . that clairvoyance is not a required attribute of effective representation."); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981) (holding that "counsel is normally not expected to foresee future new developments in the law").
Petitioner also fails the second prong in Strickland because he is not able to demonstrate actual prejudice due to his counsel's deficient performance, if any. Petitioner contends that his counsel is ineffective because his counsel did not file the appeal within 10 days, and as a result, Petitioner lost the chance to argue the alleged illegal enhancement on direct appeal. However, Petitioner is not able to establish that had he appealed, the result of the proceeding would have turned out differently. The last day that Petitioner could have appealed was August 28, 2002, which was before Blakely and Booker were decided. Therefore, Petitioner could not have argued successfully on direct appeal that the enhancement of his sentence was unconstitutional.
V. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2255 Cases is a determination that the § 2255 motion, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (it is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm'r of Corr. of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was "intrinsically contradictory" to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal).
The Sixth Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." The Court finds that reasonable jurists could not find that this Court's dismissal of Petitioner's claim was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability.
Conclusion
For the foregoing reasons, Petitioner's request that his sentence be vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255 is denied. This case will be dismissed with prejudice. No certificate of appealability will be issued.A separate order will issue.