Opinion
Case No. 1:CR-00-336-02.
June 22, 2005
MEMORANDUM AND ORDER
Before the court is a petition filed pursuant to 28 U.S.C. § 2255 on April 20, 2005. The Government has responded and seeks dismissal of the petition as untimely. Petitioner agrees that the petition is untimely but believes that United State v. Booker, 125 S. Ct. 738 (2005), applies to him and that his petition is timely.
The initial petition was filed on a 28 U.S.C. § 2254 form; however, Petitioner intended and this court has treated his filing as one filed pursuant to 28 U.S.C. § 2255.
Petitioner's judgment of conviction became final on May 13, 2003. The Anti-Terrorism and Effective Death Penalty Act requires that, unless certain exceptions apply, a prisoner seeking relief from a sentence imposed by a federal court must file a § 2255 petition within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. Petitioner is clearly untimely in filing the instant petition.
As noted above, Petitioner believes that United State v. Booker, 125 S. Ct. 738 (2005), permits him to file this untimely appeal. As the Government notes, the case of In re Olopade, 403 F.3d 159, 162 (3d Cir. 2005), the Third Circuit Court of Appeals held that Booker does not apply retroactively to cases on collateral review.
Accordingly, IT IS HEREBY ORDERED THAT:
1) The petition for writ of habeas corpus is DISMISSED.
2) The court declines to issue a certificate of appealability.
3) The Clerk of Court shall close the file.