Opinion
Case No. 03-20041-01-JWL, 05-3076-JWL.
September 7, 2005
MEMORANDUM ORDER
On April 2, 2003, Carl E. Walton was charged in a one-count indictment with distribution of 5 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). On November 24, 2003, Mr. Walton entered a plea of guilty to the indictment. On February 9, 2004, Mr. Walton was sentenced to a 188-month term of imprisonment. The judgment of conviction was entered on the docket on February 11, 2004 and, as Mr. Walton did not appeal, became final no later than March 11, 2004. On February 9, 2005, Mr. Walton filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 79) in which he asks this court to vacate his current sentence and resentence him in light of the Supreme Court's decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005). As explained below, the motion is denied.
Mr. Walton's motion is based entirely on the Supreme Court's decisions in Blakely and Booker. The Tenth Circuit has expressly held, however, that neither Blakely nor Booker applies to an initial § 2255 motion. See United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005) ("[W]e hold that Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004."); United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005) ("Thus, like Blakely, Booker does not apply retroactively on collateral review, and [petitioner's] claim may not be brought in this initial habeas review under 28 U.S.C. § 2255."). The Tenth Circuit's decisions in Price and Bellamy mandate that the court deny Mr. Walton's motion on the merits. Mr. Walton did not appeal his conviction or sentence and his case was "final" prior to the Supreme Court's decisions in Blakely and Booker. Thus, neither Blakely nor Booker applies retroactively to his § 2255 petition and those decisions have no bearing on Mr. Walton's sentence.
IT IS THEREFORE ORDERED BY THE COURT that Mr. Walton's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 79) is denied.
IT IS SO ORDERED.