Summary
dismissing § 2255 motion asserting claims under Blakely v. Washington, 124 S. Ct. 2531 as untimely because it was filed while direct appeal was still pending
Summary of this case from U.S. v. JordanOpinion
Criminal No. 02-127 (1) ADM/AJB.
August 4, 2004
David M. Genrich, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff.
Paul Engh, Esq., Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendant Thomas Martin's ("Defendant") Motion to Vacate Sentencing Enhancement and Motion for Immediate Release [Docket Nos. 299, 300]. In his Motions, Defendant argues that his Sixth Amendment right to a jury trial was violated when he received a two point sentencing enhancement for obstruction of justice from this Court. For the reasons set forth below, Defendant's Motions are denied.
II. BACKGROUND
In the wake of Blakely v. Washington, Defendant has filed two motions in an attempt to mitigate his sentence. 14 S.Ct. 2531 (2004). In the spring of 2002, Defendant was charged in a multi-count indictment [Docket No. 26]. Defendant ultimately pled guilty to one count of mail fraud and one count of theft from a labor organization [Docket No. 216]. Defendant's plea agreement reserved, for the Court, the issue of whether an obstruction of justice sentencing enhancement was appropriate under the United States Sentencing Guidelines ("USSG"). Under the USSG, Defendant faced a range of 18 to 24 months without the obstruction of justice enhancement, and a range of 24 to 30 months with the enhancement. On April 1, 2003, this Court sentenced Defendant to 24 months after finding that an obstruction of justice enhancement was appropriate. On appeal to the Eighth Circuit, the sentencing enhancement was affirmed. United States v. Martin, 369 F.3d 1046, 1061 (8th Cir. 2004). Defendant has not, however, applied for a writ of certiorari to the United States Supreme Court.
On June 24, 2004, the Supreme Court ruled in Blakely that the State of Washington's sentencing guidelines, which, like the United States Sentencing Guidelines, allow for sentencing enhancements upon certain findings by a judge, were violative of the Sixth Amendment right to a jury trial. Since Blakely, numerous federal courts have grappled with the effects ofBlakely on the USSG, with varying outcomes. See, e.g., In re Dean, 2004 WL 1534788 (11th Cir. July 9, 2004) (Supreme Court has not spoken on the issue of the constitutionality of the USSG); United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004) (USSG are violative of the Sixth Amendment as interpreted under Blakely). Recently, the 8th Circuit, in United States v. Mooney, considered the issue of Blakely's applicability to the USSG. 2004 WL 1636960 (8th Cir. July 27, 2004). In Mooney, the majority opinion found Blakely's reasoning persuasive, and on that basis held the USSG unconstitutional. In her dissent, Judge Diana Murphy, former chair of the United States Sentencing Commission, found that the Supreme Court did not address the issue of whether the USSG were constitutional. Id. at *12. The majority also noted that the USSG should be retained as "advisory" guides, and should be treated as "non-binding" guidelines. Id. at *13.
Given the disparity in which courts have applied Blakely, the Supreme Court will review two Blakely-related decisions on an expedited basis, with arguments to be held in October, 2004.
III. DISCUSSION
Defendant makes his motions pursuant to 28 U.S.C. § 2255. Before the merits of Defendant's motions can be analyzed, the propriety of such a motion must be analyzed.
A. Motion to Vacate Sentencing Enhancement
Plaintiff United States of America's ("Plaintiff"), in its responsive memorandum [Docket No. 304], argues that Defendant cannot properly petition this Court for habeas relief at this time because his conviction is not final. It has long been held that habeas petitions under 28 U.S.C. § 2255 are only available once the petitioner has exhausted all remedies within the district courts and courts of appeals. Weber v. Steele, 185 F.2d 799, 800 (8th Cir. 1951). Moreover, a petitioner must also "apply to the Supreme Court, on certiorari from a denial of such remedies, before seeking release on habeas corpus." Id. If a petitioner chooses not to file a writ of certiorari with the Supreme Court, his appeal is considered pending until the time for filing such a writ has expired. Clay v. United States, 537 U.S. 522, 532 (2003). A defendant has ninety days from the time of the date of entry of the judgment or order to seek a writ of certiorari with the Supreme Court. Sup. Ct. R. 13.
Plaintiff argues that Defendant's direct appeal is, for habeas purposes, still pending. As noted above, Defendant filed a direct appeal of the obstruction of justice enhancement with the Eighth Circuit which was denied on May 28, 2004. See Martin, 369 F.3d at 1061. Defendant, however, has thus far not filed a writ of certiorari with the Supreme Court. Defendant's ninety day window to petition for a writ of certiorari will expire on August 26, 2004. Until Defendant has exhausted all of appeals, this Court cannot hear his habeas petition. Defendant argues in his reply memorandum [Docket No. 306] that petitioning for a writ of certiorari will put Defendant near the end of his sentence. Regardless of the accuracy of this statement, this Court cannot hear an untimely habeas petition. As a result, Defendant's motion must be denied as untimely.
B. Motion for Immediate Release
If extraordinary circumstances were found to exist, the timeliness requirement of § 2255 would be obviated, and this Court could hear Defendant's habeas petition. See United States v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1993) (citing Masters v. Eide, 353 F.2d 517, 518 (8th Cir. 1965)). Even if Defendant could demonstrate extraordinary circumstances, however, he cannot show he was prejudiced by the obstruction of justice enhancement finding. Without the enhancement, Defendant would have faced a range of 18 to 24 months, as opposed to 24 to 30 months with the enhancement. Therefore, Defendant's 24 month sentence fell within the non-enhanced sentence range. If the landscape of federal sentencing is now truly indeterminant sentences, as suggested by Mooney, Defendant's 24 month sentence comports with this Court's judgment of an appropriate sentence under the circumstances of the underlying case.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:1. Defendant's Motion to Vacate Sentencing Enhancement is DENIED; and
2. Defendant's Motion for Immediate Release is DENIED.