Opinion
No. A97-092 CR (HRH), (Docket No. 429).
March 18, 2005
RECOMMENDATION REGARDING NOTICE OF PLAIN ERROR MOTION
Defendant Tyrell Walton has filed a pleading styled "Notice of Plain Error and Motion to Review Under Whichever Rule or Statue (sic) Court Deems Proper," Docket No. 429. This motion has been referred to the magistrate judge. Docket No. 432. The motion has yet to be served upon the United States for a response. Although the motion for review is equivocal as to the court's jurisdiction to consider it, it essentially seeks habeas relief appropriately considered under 28 U.S.C. § 2255. Fairly construed, W alton's pro se pleading is seeking relief under United States v. Booker, 125 S.Ct. 738 (2005) which applied the reasoning of Blakely v. Washington, 124 S.Ct. 2531 (2004) to the Federal Sentencing Guidelines. The magistrate judge has conducted initial screening of the new motion to vacate sentence pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings.
Section 2255 provides as follows:
A second or successive petition or motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Thus, the Court will not consider a successive motion without prior authorization from the Court of Appeals for the Ninth Circuit, even if jurisdiction were appropriate.
Even if this court were to consider W alton's alternative claim of actual innocence under Federal Criminal Rule 60(b), the pleading is inadequate to state a basis for actual innocence. Moreover, contemporary case law does not provide support for Walton's claim of plain error entitling him to have his sentence vacated. See Discussion of Blakely standards below.
Blakely Standards
In Blakely v. Washington, 124 S.Ct. 2531 (2004) the U.S. Supreme Court held that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant as proved to the jury beyond a reasonable doubt. Walton claims that his/her sentence was imposed in violation of Blakely because the trial judge increased her sentence based on findings of fact made by the judge. This claim is governed by the Supreme Court's intervening decision in United States v. Booker, 125 S. Ct. 738 (2005) which applied the Blakely reasoning to the Federal Sentencing Guidelines. When a Supreme Court decision results in a "new" rule, the new rule applies to all criminal cases on direct review. Schriro v. Summerlin, ___ U.S. ___, 124 S. Ct. 2519, 2522 (2004). A new rule applies retroactively, however, to convictions that are final only in limited circumstances. For reasons stated below I conclude that Booker's rule does not apply retroactively in collateral proceedings; therefore, Walton's new claim for habeas relief is meritless.
The principle adopted in Blakely constitutes a "new constitutional rule of criminal procedure," which, under Teague v. Lane, 489 U.S. 288 (1989), is not retroactively applied to cases like the instant one that became final before the decision was announced. Federal habeas petitioners may not rely on new rules of criminal procedure handed down after their convictions have become final on direct appeal as a general principal.Schriro v. Summerlin, 124 S.Ct. 2519, 2523 (2004). In Schriro the court distinguished between a new substantive rule and a new procedural rule, noting that a rule requiring that a jury rather than a judge find the facts essential to the death penalty is a procedural rule, whereas a rule that a particular fact is essential to the death penalty is a substantive rule. The Supreme Court has held that a new rule resulting from one of its decisions applies to convictions that are already final only in limited circumstances. In Teague v. Lane, supra, the Supreme Court announced a three-step analysis to determine whether a new rule of criminal procedure applies to a case on collateral review.
New procedural rules which may by considered "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding are given retroactive effect.Schriro, 124 S. Ct. at 2522. Changing the method of determining whether a defendant engaged in conduct does not fall within Teague's narrow exception for "watershed rules" of criminal procedure. A new procedural rule in order to qualify as a watershed rule must be one "without which the likelihood of an accurate conviction is seriously diminished." Id. Blakely did not announce a watershed rule of criminal procedure because the judicial fact finding, in contrast to the jury fact finding, process did not seriously diminish the accuracy of the sentencing proceeding.
This reviewing court must first determine when the defendant's conviction became final. Beard v. Banks, 124 S.Ct. 2504, 2510 (2004). Here, the defendant's conviction became final in 2003.
Next, the court must decide whether the rule in question is actually "new." Id. Under Teague, 489 U.S. at 301, a new rule is a rule that "breaks new ground." Thus, "a case announces a new rule if the result was not dictated by the precedent existing at the time the defendant's conviction became final." Id. Upon assaying the legal landscape as of January 2004 the rule announced in Booker was not dictated by then existing precedent. The alleged unlawfulness of defendant's conviction was not apparent to all reasonable jurists.
Other courts have reached the decision that the Booker rule is clearly new. Blakely reserved the decision about the status of the Federal Sentencing Guidelines. Even when the Ninth Circuit applied Blakely's rule to the federal guidelines it did so over dissents. United States v. Ameline, 376 F.3d 967, 984 (9th Cir. 2004) (Gould, J. dissenting.).
After Blakely, the Fourth and Fifth Circuits found thatBlakely did not apply to the Federal Sentencing Guidelines. See United States v. Pineiro, 737 F.3d 464, 473 (5th Cir. 2004); United States v. Hammond, 381 F.3d 316, 353 (4th Cir. 2004). Blakely and Ameline were not dictated by precedent at the time of *[defendant]'s conviction and reasonable jurists clearly were not compelled to so extend Apprendi.
The question then becomes whether Booker's new rule falls into either of Teague's two exceptions to the non-retroactivity rule. The non-retroactivity rule "does not apply to rules forbidding punishment 'of certain primary conduct [or to] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense'" Beard 124 S.Ct. at 2513, quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989). Thus, this exception is clearly inapplicable. Beard explained the second Teague exception as follows:
"The second exception is for watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal procedure. We have repeatedly emphasized the limited scope of the second Teague exception, explaining that it is clearly meant to apply only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty. And, because any qualifying rule would be so central to an accurate determination of innocence or guilt [that it is] unlikely that many such components of basic due process have yet to emerge, it should come as no surprise that we have yet to find a new rule that falls under the second Teague exception."Beard, 124 S.Ct. at 2513-14.
Schriro is instructive as to whether the Supreme Court's decision in Booker is a watershed procedural rule. See 124 S.Ct. 2519. Schriro held that Ring v. Arizona, 536 U.S. 584 (2002) (holding that provisions of Arizona's sentencing scheme that allowed a judge to find those aggravating factors authorizing the death penalty violate the Sixth Amendment) did not announce a "watershed rule of criminal procedure" that would apply retroactively to cases already final on direct review.Schriro, 124 S.Ct. at 2524-26. The Supreme Court viewed the issue as "whether judicial fact finding so seriously diminish(s) accuracy that there is an impermissibly large risk of punishing conduct the law does not reach." Id. at 2525. The Schriro court, citing DeStefano v. Woods, 392 U.S. 631, 633-34 (1968), observed that if a trial held entirely without a jury was not impermissibly inaccurate, neither should a trial in which a judge finds only aggregating factors be considered impermissibly inaccurate. 124 S.Ct. at 2526. Thus, the judicial fact finding addressed in Booker does not fall withinTeague's second exception. Other courts have reached similar results. See Humphress v. United States, ___ F.3d ___, ( 2005 WL 433191 6th Cir. Feb. 25, 2005); United States v. Quintero-Araujo, 343 F. Supp. 935 (D. Id. 2004).
The Supreme Court in United States v. Booker, held "that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines." The defendant is apparently attempting to bring a motion, under 28 U.S.C. 2255, based upon a new "watershed rule" of Constitutional law. Courts of Appeal, however, have concluded that the Supreme Court's holding in Booker applies to all criminal cases pending on direct appeal at the time it was rendered," rather than to cases on collateral review. See Green v. United States, 397 F.3d 101, 103 (2nd Cir. 2005) ("In Booker, the Supreme Court noted that its holdings in that case apply to 'all cases on direct review' but made no explicit statement of retroactivity to collateral cases. Booker, . . . 125 S.Ct. at 769. Thus, neither Booker nor Blakely apply retroactively to Green's collateral challenge."); In re Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005) ("Regardless of whether Booker established a "new rule of constitutional law" within the meaning of §§ 2244(b)(2)(A) and 2255, the Supreme Court has not expressly declared Booker to be retroactive to cases on collateral review. . . . Put simply,Booker itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) ("Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005").
Blakely v. Washington, 124 S.Ct. 2531, 2536 (2004).
United States v. Booker, 125 S.Ct. 738, 746 (2005).
See, Ring v. Arizona, 536 U.S. 584 (2002).
Conclusion
Defendant's request for the court to take notice of "plain error" may be summarily as a matter of law. The motion to review his sentence pursuant to 28 U.S.C. § 2255 must be denied as premature unless the defendant obtains permission from the Ninth Circuit Court of Appeals to file a successive petition. The motion for appointment of counsel under the Criminal Justice Act must likewise be denied because the underlying motion should be summarily denied. IT IS SO RECOMMENDED.
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON Thursday, March 31, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9 Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON Thursday, April 7, 2005. The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).