Free Report and Recommendation - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff/Respondent, vs. Francisco Gonzalez-Cisneros, Defendant/Movant.

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No. CR 01-118 PHX-SMM CV 05-882 PHX-SMM (LOA) REPORT AND RECOMMENDATION

This matter arises on Movant's Motion to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody pursuant to 28 U.S.C. § 2255 (document # 150). On July 18, 2005, Respondent filed a Response (document # 158) asserting that Movant's Motion should be denied as untimely. On August 3, 2005, Movant filed a reply asserting that his Motion was timely filed. (document # 164) Thereafter, on August 11, 2005, Respondent filed a

Supplemental Response conceding that Movant's § 2255 Motion is timely and responding to the merits of Movant's claims. Movant does not oppose the filing of the Supplemental Response. (document # 170) The Court will accept the Supplemental Response and will consider the arguments raised therein. On August 30, 2005, Movant filed a Supplemental Reply. (document # 170) In that Reply, Movant advised the Court that he did not receive a complete copy of the Supplemental Response. The Court, therefore, ordered Respondents to provide Movant with a complete copy of the Supplemental Response and permitted Movant until October 15, 2005 to amend his supplemental reply based upon his review of the complete Supplemental Response. Respondents complied with the Court's order and provided Movant with a complete
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copy of the Supplemental Response. Thereafter, on September 28, 2005, Movant filed a Second Supplemental Reply. This matter, therefore, is ready for review. FACTUAL AND PROCEDURAL BACKGROUND Following a jury trial, on July 10, 2002, Movant was convicted of one count of Conspiracy to Distribute and Possess with Intent to Distribute 500 Grams or More of Methamphetamine in violation of 21 U.S.C. § 846, and one count of Possession with Intent to Distribute 500 Grams or More of Methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (document # 7, # 102) On September 23, 2002, the district court sentenced Movant to 135 months on each count, to run concurrently, followed by five years of supervised release. He was also ordered to pay a special assessment of $ 200. (document # 107, # 108) Movant appealed, and on November 17, 2003, the Ninth Circuit affirmed. See, United States v. Gonzalez-Cisneros, 81 Fed. Appx. 673 (9th Cir. 2003). Movant sought review of his appeal en banc. On March 31, 2004, the Ninth Circuit denied Movant's petition for en banc review. (document # 164) Thereafter, Movant filed the pending § 2255 Motion alleging the following claims for relief: (1) the district court's determination of his criminal history category violated the Sixth Amendment under the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, ___ U.S.___, 124 S.Ct. 2531 (2004), and Shepard v. United States, ___ U.S.___, 125 S.Ct. 1254 (2005); (2) trial and appellate counsel rendered ineffective assistance; and (3) his sentence was void ab initio under United State v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005). (document # 151 at 5) ANALYSIS I. Timeliness In the Supplemental Response (document # 165), Respondent concedes that Movant's § 2255 motion is timely. The Court, therefore, will not address this issue. II. Sentencing Enhancements In his first ground for relief, Movant claims that the district court's use of two prior convictions to enhance Movant's sentence violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466(2000), Blakely v. Washington, 124 S.Ct. 2531 (2004), and Shepard
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v. United States, ___ U.S.___,125 S.Ct. 1254 (2005). Movant claims that one point was improperly added for a driving infraction when there was no evidence of an arrest record, conviction, or attorney representation. (document # 150, supporting memorandum at 1) Contrary to Movant's assertion, the record reveals that during an April 8, 2002 hearing, the government provided the court and defense counsel with copies of a misdemeanor DUI conviction that Movant had received in 1997 after a bench trial in which Movant was represented by counsel. Based on a review of those records, the court determined, and the parties agreed, that a criminal history point was properly assessed for that conviction. (document # 165, Exh. B; Tr. 4/8/02 at 2-3) Movant alleges that a second point was assessed based on a conviction for marijuana possession, and this was improper under the "Apprendi/Blakely/Shepard" line of cases because Movant did not admit the conviction and a jury did not find that he was so convicted. The record does not indicate that Movant objected to the enhancement based on this conviction during sentencing. (document # 165, Exh. C; Tr. 3/18/02 at 2-3) Moreover, Movant's challenge under Apprendi, Blakely and Shepard fails. A. Apprendi and Blakely Claims Apprendi and Blakely were both decided before Movant's conviction became final on June 30, 2004. Because Apprendi and Blakely were both decided before Movant's conviction became final, their holdings apply to Movant's case. Movant, however, is not entitled to relief under Apprendi or Blakely. Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490 (emphasis added). In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court held that a sentencing regime violates the Sixth Amendment when a judge finds "factors" that increased a sentence beyond the maximum allowed by the jury findings alone. Id. In Blakely, the Supreme Court specifically retained the exception for prior convictions which was established in Apprendi. Id.

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After the Supreme Court decided Blakely, the Ninth Circuit, in United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir. 2004), confirmed that the government need not prove beyond a reasonable doubt the existence of a defendant's prior convictions. Id. (citing United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir. 2001)(noting that "Apprendi held that all prior convictions . . . were exempt from Apprendi's general rule and, may continue to be treated as sentencing factors.") In view of the foregoing, Movant did not have a Sixth Amendment right to have a jury determine the existence of his prior convictions beyond a reasonable doubt. Accordingly, Movant's claims under Apprendi and Blakely fail. B. Shepard Claim Movant also challenges the enhancement of his sentence based a prior conviction for driving under the influence and based on a prior conviction for possession of marijuana under United States v. Shepard, ___ U.S.___, 125 S.Ct. 1254 (2005). Shepard does not apply directly to Movant's case because he was not sentenced under the Armed Career Criminal Act "ACCA", 18 U.S.C. § 924(e) which was at issue in Shepard. Thus, Movant appears to argue that under Shepard, the exception for prior convictions carved out in Apprendi is no longer valid. In Shepard v. United States, ___ U.S.___, 125 S.Ct. 1254 (2005), the Court addressed what is meant by the "fact of a prior conviction" as that term is used in the Apprendi line of cases. In Shepard, defendant pleaded guilty to being a felon in possession under § 922(g)(1), and the government sought to enhance his sentence under the Armed Career Criminal Act "ACCA", 18 U.S.C. § 924(e). The text of the Massachusetts statute under which defendant had previously been convicted did not clearly satisfy the ACCA's requirement that the conviction be a "violent" felony. To establish compliance with the ACCA, the government offered documents like police reports to show that even if some convictions under the state statute might not be "violent felonies," defendant's convictions were. Id. at 1257-58. The Supreme Court declined to rely on the police reports. The Court prohibited the trial judge from resolving a "disputed fact . . . about a prior conviction," Id. at 1262, if doing
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so required data ­ like that found in police reports ­ that was not inherent in that prior conviction. The Shepard Court, however, affirmed that the prior conviction exception remained good law. Thus, the Court held that judges could rely on a variety of conclusive court documents when determining the nature of a prior conviction. Approved sources include the prior court's jury instructions or the "charging documents filed in the court of conviction." Id. at 1259. When there was no jury in the prior case, courts may use not only charging documents, but "a bench-trial judge's formal rulings of law and findings of fact." Id. For guilty pleas, the court may rely on "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or . . . some comparable judicial record of this information." 125 S.Ct. at 1263. After Shepard the "fact of a prior conviction" remains a valid enhancement even when not found by a jury. Shepard did not disturb Apprendi's pronouncement that the fact of a prior conviction need not be proven beyond a reasonable doubt. See, United States v. Williams, 410 F.3d 397, 402 (7th Cir. 2005); United States v. Moore, 401 F.3d 1220, 1221-1224 (10th Cir. 2005). Thus, a district court can make findings as to the fact of prior convictions or the nature of those convictions. Williams, 410 F.3d 397, 402 (7th Cir. 2005). Shepard was decided on March 7, 2005 after Movant's conviction became final on June 30, 2004. Courts have consistently held that Shepard does not apply retroactively on collateral review to cases which were final before Shepard was issued on March 7, 2005. See, Guzman v. United States, 404 F.3d 142 (2nd Cir. 2005); Green v. United States, 397 F.3d 101, 103 (2nd Cir. 2005); McCleskey v. United States, 2005 WL 1958407, * 6 (W.D.Tex., August 15, 2005); Darco v. United States, 2005 WL 1804475, * 4 (E.D.N.Y., July 28, 2005); OliviasGutierrez v. United States, 2005 WL 1241871 (W.D.Tex., May 19, 2005); Langley v. United States, 2005 WL 1114710 (M.D.N.C., May 5, 2005); United States v. Olusajo, 2005 WL 1124099 (E.D.Pa., May 5, 2005); Morales v. United States, 2005 WL 807051 (D.Minn., April 7, 2005); Vega v. Craig, 2005 WL 1388872, * 2 (N.D.N.Y., June 9, 2005); United States v. Ramirez-Villanueva, 2005 WL 2124151 (N.D. Tex., August 11, 2005). As discussed below,

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the Court agrees with the foregoing decisions that Shepard does not apply retroactively to cases that were final on March 7, 2005 when Shepard was issued. 1. Retroactivity of Shepard on Collateral Review When a Supreme Court decision results in a new rule, that rule applies to cases pending on direct review. Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2522 (2004). However, new rules only apply in limited circumstances to cases which are already final. New rules of substantive law apply retroactively to final convictions. Id. at 2522. Substantive rules either narrow the scope of a criminal statute by limiting its terms, or by placing particular conduct or persons beyond the reach of the law. Id. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal and faces a punishment that the law cannot impose upon him." Id. at 2522-23. On the other hand, new procedural rules generally do not apply retroactively, because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Summerlin, 124 S.Ct. at 2523. Due to the more speculative connection between invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" are given retroactive effect. Id. The new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." Id. This is an extremely narrow set of rules. 2. Whether Shepard announced a New Procedural Rule A procedural rule regulates only the manner of determining a defendant's culpability. Summerlin, 124 S.Ct. at 2523. Under this standard, the holding in Shepard is procedural. The rule announced in Shepard merely articulates the materials a district court may consider in determining whether a defendant's prior convictions subject him to the ACCA's mandatory minimum sentence. Thus it is procedural. The rule of Shepard is also new for purposes of this case because as of June 30, 2004, the date Movant's conviction became final, the rule

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announced in Shepard was not dictated by precedent. See, Teague, 489 U.S. at 301; OlivasGutierrez v. United States, 2005 WL 1241871, * 4 (W.D.Tex., May 19, 2005). 3. Whether Shepard fits within an Exception under Teague New procedural rules generally do not apply retroactively on collateral review unless they fall into one of Teague's two exceptions. The first exception applies to new procedural rules that "place[] certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague, 489 U.S. at 307. This exception does not apply to Shepard which articulates the materials a district court may consider in determining whether a defendant's prior convictions subject him to the ACCA's mandatory minimum sentence. The second exception applies to "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding." Summerlin, 542 U.S. 348. The Supreme Court has defined this exception narrowly to include only a "small core of rules requiring the observance of those procedures that . . . are implicit in the concept of ordered liberty." O'Dell v. Netherland, 521 U.S. 151, 157(1997). The rule of Shepard does not

seriously diminish the likelihood of an accurate conviction and, therefore, does not apply retroactively to judgment that became final before Shepard was issued on March 7, 2005. Thus, Movant, whose conviction was final before March 7, 2005, may not seek relief under Shepard. II. Ineffective Assistance of Counsel Movant next argues that trial counsel and appellate counsel rendered ineffective assistance. To establish ineffective assistance of counsel, Movant must establish that (1) counsel's representation fell below an objective standard of reasonableness; and (2) he was prejudiced thereby. Hill v. Lockhart, 474 U.S. 52 (1985)(citing Strickland v. Washington, 466 U.S. 668, 688-692 (1984)). To establish prejudice, movant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Where movant cannot establish prejudice, the

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court need not reach the performance prong. Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F. 3d 1465, 1470 (9th Cir. 1995). In reviewing counsel's performance, a court must "strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Strickland, 466 U.S. at 689. A criminal defendant has a constitutional right to effective assistance of counsel on direct appeal, as well as trial. See, Evitts v. Lucey, 469 U.S. 387, 396 (1985). Smith v.

Robbins, 528 U.S. 259, 285 (2000). The Strickland standard applies to claims of ineffective assistance of appellate counsel. To establish ineffective assistance of appellate counsel based on counsel's failure to raise a claim, movant "must first show that his counsel was objectively unreasonable in failing to find arguable issues on appeal -- that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them." Smith v. Robbins, 528 U.S. 259, 285 (2000). The movant must then "show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on appeal." Id. A. Trial Counsel's Attitude Movant claims that trial counsel rendered ineffective assistance because counsel "exhibited an attitude of indifference and disinterest during trial, giving the jury the impression that his client [petitioner] was guilty." (document # 150, supporting memorandum at 4) Movant further argues that trial counsel failed to raise any issue regarding the jury's failure to make any findings about the drugs attributable to Movant. (Id.) Movant does not offer any evidence to support his claim that counsel displayed an indifferent and disinterested attitude during trial. Movant's unsupported, conclusory allegations are not sufficient to support a claim for federal habeas relief. See, Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995)(stating that conclusory allegations with no reference to the record or other evidence do not warrant habeas relief.) Additionally, during trial, Movant and the government entered into a stipulation regarding scientific test results of the type and quantity of drugs received by undercover officers during the investigation of his case. (Respondents' Exh. D, Tr.
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7/10/02 at 237-40) Thus, the issue regarding the amount of drugs attributable to Movant was resolved. Additionally, contrary to Movant's claim, the jury made specific findings on special verdict forms regarding the amount of drugs attributable to Movant. (Respondents' Exh. E, Tr. 7/10/02 at 337-338) In view of the foregoing, Movant's claim of ineffective assistance of trial counsel fails. B. Failure to Challenge Sentencing Enhancements Movant further argues that trial and appellate counsel were ineffective in failing to

8 challenge his sentencing enhancements based on prior convictions. (document # 150, supporting 9 memorandum at 4) As previously discussed, Movant was properly assessed criminal history 10 points for his prior criminal convictions and those enhancements did not violate Apprendi, 11 Blakely, or Shepard. Failure of counsel to raise a meritless claim does not constitute ineffective 12 assistance. Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989). Moreover, to the extent 13 that Movant challenges counsel's failure to raise an argument under Shepard or Booker, both of 14 which were decided after Movant's conviction became final, Movant' right to effective assistance 15 of counsel was not violated by the failure of his counsel in 2003 to anticipate the change in 16 previously settled law announced in Booker and Shepard. one and two years later. See United 17 States v. Carew, 2005 WL 1526136 (10th Cir., June 29, 2005)(counsel required to anticipate the 18 substance and timing of future changes in the law); United States v. Gonzalez-Huerta, 403 F.3d 19 727, 750 (10th Cir. 2005)(Briscoe, J., concurring and dissenting)(no one could have predicted 20 absolute sea-change in federal sentencing that would ultimately be wrought by Booker). 21 [C]ounsel's performance is not deficient by failing to predict future developments in the law." 22 Wajda v. U.S. Parole Commission, 64 F.3d 385, 388 (8th Cir. 1995). . The Court, therefore, finds 23 that counsel was not ineffective in failing to challenge Movant's sentencing enhancements. 24 III. Sentence is Void 25

Finally, Movant argues that his sentence was void ab initio based on United States

26 v. Booker, 543 U.S. ____, 125 S.Ct. 738, 749-56 (2005). In Booker, the Supreme Court applied 27 the rule of Blakely to the United States Sentencing Guidelines and held that the Guidelines, as 28 written, violate the Sixth Amendment principles articulated in Blakely. United States v. Booker, Case 2:01-cr-00118-SMM -9Document 178 Filed 10/06/2005 Page 9 of 16

1 543 U.S. ___, 125 S.Ct. 738, 749-56 (2005). In Booker, the Court repeated that only facts "other 2 than a prior conviction" were subject to the jury requirements of the Sixth Amendment. Id. at 3 756. The Supreme Court then severed and excised the provision making the Guidelines 4 mandatory and declared the Guidelines advisory. Id.

Booker was not decided until January

5 12, 2005 well after Movant's conviction became final on June 30, 2004 when his time to file a 6 petition for writ of certiorari in the United States Supreme Court expired. Movant claims that 7 Booker applies to his case because it declared the mandatory application of the United States 8 Sentencing Guidelines unconstitutional. Movant claims that the decision in Booker did not 9 create a "retroactivity issue" because the Court's decision was substantive. (document # 150, 10 supporting memo at 17) The Court will address this claim below. 11 / / / 12 13

A. Does Booker Apply Retroactively to Initial § 2255 Motions In Teague v. Lane, the Supreme Court articulated a three-step analysis for

14 determining whether a procedural rule applies retroactively to cases on collateral review. 489 15 U.S. 288 (1989). First, the court must determine the date upon which the petitioner's conviction 16 became final. Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2510 (2004). Next, the court must 17 determine whether the rule is "new" and it if is a procedural rule. Id. If so, the court must 18 determine whether the new procedural rule falls into "one of the two narrow exceptions to the 19 Teague doctrine." Id. 20 21

B. Date Movant's Conviction became Final For purposes of retroactivity analysis, a conviction becomes final when the

22 availability of direct appeal has been exhausted and the time for filing a petition for writ of 23 certiorari has elapsed or a timely filed petition has been denied. Caspari v. Bohlen, 510 U.S. 24 383, 390 (1994). Here, the Ninth Circuit's order affirming the district court's judgment was filed 25 on November 17, 2003. Movant sought review en banc which was denied on March 31, 2004. 26 Although Movant did not file a petition for writ of certiorari with the United States Supreme 27 Court, Rule 13(1) of the Rules of the United States Supreme Court provided him with 90 days 28 - 10 Document 178 Filed 10/06/2005

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1 in which to do so. As a result, Movant's conviction was final on June 30, 2004, over six months 2 before the Supreme Court decided Booker on January 12, 2005. 3 4

C. Whether Booker announced a New Rule A "case announces a new rule if the result was not dictated by precedent existing at

5 the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989). 6 In other words, whether "the unlawfulness of [defendant's] conviction was apparent to all 7 reasonable jurists." Beard, 124 S.Ct. at 2511. 8

The rule announced in Booker was not dictated by existing precedent at the time

9 Movant's conviction became final on June 30, 2004. First, the Supreme Court stated that its 10 holding in Booker applies to "all cases on direct review." Such a pronouncement would have 11 been unnecessary if Booker had been dictated by precedent. Second, before Booker, courts were 12 divided as to whether Blakely would apply to the United States Sentencing Guidelines. See, 13 Morales v. United States, 2005 WL 807051, * 5 n. 1 (D.Minn., April 7, 2005)(citations therein). 14 In fact, the Blakely Court reserved judgment regarding the U.S.S.G. 124 S.Ct. at 2538, n. 9. In 15 view of the foregoing, the Court finds that Booker announced a new rule. 16 17

D. Whether the New Rule is Procedural or Substantive The Court must next determine whether the new rule is procedural or substantive.

18 A rule is substantive if it alters the course of conduct or the class of persons that the law 19 punishes. Schriro v. Summerlin, 542 U.S. 348 (2004). On the other hand, "rules that regulate 20 only the manner of determining the defendant's culpability are procedural." Id. The rule 21 announced in Booker is procedural because it only regulates the manner of determining a 22 defendant's sentence. See, United States v. Brown, 2005 WL 1463531, * 2 (D.Alaska 2005). 23 Booker did not make any primary conduct unlawful or declare invalid any of the many factors 24 that affect sentences under the United States Sentencing Guidelines. Booker does not shift any 25 decision from judge to jury, or reallocate the burden of proof. Morales v. United States, 2005 26 WL 807051, * 6 (D.Minn., April 7, 2005) Rather Booker "only provides judges with more 27 flexibility in applying the guideline system." Id. Thus, Booker announced a procedural rule. 28

E. Whether Booker's Rule Applies Retroactively under an Exception to Teague
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1

New procedural rules generally do not apply retroactively on collateral review unless

2 they fall into one of Teague's two exceptions. The first exception applies to new procedural 3 rules that "place[] certain kinds of primary private individual conduct beyond the power of the 4 criminal law-making authority to proscribe." Teague, 489 U.S. at 307. This exception does not 5 apply to Booker. See, Humphress v. United States, 398 F.3d 855, 856 (6th Cir. 2005); United 6 States v. Moss, 252 F.3d 993, 997 n. 3 (8th Cir. 2001)(holding that Apprendi does not implicate 7 Teague's first exception.) 8

The second exception applies to "watershed rules of criminal procedure" implicating

9 the fundamental fairness and accuracy of the criminal proceeding. Summerlin, 542 U.S. 348. 10 The Supreme Court has defined this exception narrowly to include only a "small core of rules 11 requiring the observance of those procedures that . . . are implicit in the concept of ordered 12 liberty." O'Dell, 521 U.S. at 157. 13

In Booker, the Supreme Court held that both of its holdings apply "to all cases on

14 direct review" but did not mention collateral review. 125 S.Ct. at 769. Every court, including 15 the Ninth Circuit, that has considered whether Booker applies retroactively to cases on collateral 16 review had held that it does not. United States v. Cruz, 2005 WL 2243113, * 2 (9th Cir., 17 September 16, 2005); Brown, 2005 WL 1463531, * 3. See, Lloyd v. United States, 407 F.3d 18 608 (3d Cir. 2005); United States v. Green, 397 F.3d 101, 103 (2d Cir. 2005); Humphress v. 19 United States, 398 F.3d 855, 856(6th Cir. 2005)(in the context of an initial § 2255, holding that 20 Booker does not apply retroactively on collateral review); McReynolds v. United States, 397 21 F.3d 479, 481 (7th Cir. 2005);United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005); United 22 States v. Bellamy, 2005 WL 1406176 (10th Cir., June 16, 2005); United States v. Leonard, 2005 23 WL 139183, at * 1 (10th Cir., Jan. 24, 2005); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 24 2005)(in the context of an initial § 2255, holding that Booker falls into the category of new rules 25 of criminal procedure that are not retroactively applicable on collateral review); Guzman v. 26 United States, 404 F.3d 139, 141 (2d Cir. 2005)(Booker not retroactively applicable on collateral 27 review where defendant's conviction was final as of January 12, 2005, the date Booker issued); 28 Hewett v. United States, ___ F.Supp.2d ___, 2005 WL 133116, * 4 (D.H., May 20, Case 2:01-cr-00118-SMM - 12 Document 178 Filed 10/06/2005 Page 12 of 16

1 2005)("Every federal court of appeals to address the question of whether Blakely or Booker are 2 retroactive to initial cases on collateral review . . . has held that they are not."); United States v. 3 Wrenn, 2005 WL 1389060, * 2 (D.Or., May 10, 2005)(same). 4

The Supreme Court has not yet ruled on whether Booker applies retroactively in the

5 context of an initial § 2255 proceeding. However, as the Ninth Circuit recently explained, the 6 Supreme Court's decision in Summerlin is instructive. Cruz, 2005 WL 2243113, * 1. In 7 Summerlin, the Supreme Court rejected the argument that Ring constituted a watershed rule of 8 criminal procedure, even though Ring prohibited the enhancement of a sentence beyond the 9 statutory maximum unless a jury found the facts authorizing the enhancement beyond a 10 reasonable doubt. Summerlin, 124 S.Ct. at 2524-26. In finding that Ring did not constitute a 11 watershed rule, the Court noted that the relevant issue is whether judicial fact-finding so 12 "'seriously diminishe[s]' accuracy that there is an 'impermissibly large risk' of punishing conduct 13 that the law does not reach." Id. at 2525 (quoting Teague, 489 U.S. at 312-313). The Court 14 found it "implausible" that "judicial factfinding so seriously diminishe[s] accuracy as to produce 15 an impermissibly large risk of injustice." Id. As a result, the Supreme Court held that Ring was 16 not retroactively applicable to cases on collateral review. 17

Because the Supreme Court has rejected the argument that Ring constitutes a

18 watershed rule of criminal procedure, and because Booker, like Ring, is based on an extension 19 of Apprendi, Summerlin's reasoning applies to Booker with equal force. Cruz, 2005 WL 20 2243113, * 1. Booker rendered the U.S.S.G. advisory. Like Ring, "no primary conduct has been 21 made unlawful, and none of the factors that affect sentences under the Sentencing Guidelines 22 have been declared invalid." McReynolds, 397 F.3d at 481. Booker does not shift any decision 23 from judge to jury, or reallocate the burden of proof. Rather, it merely provides judges with 24 more flexibility in apply the guidelines. Thus, there is no evidence that Booker is a watershed 25 rule of criminal procedure. Cruz, 2005 WL 2243113, * 1. Accordingly, as the Ninth Circuit 26 recently held, the rule announced in Booker is not retroactively applicable to cases on collateral 27 review. Cruz, 2005 WL 2243113, * 2. 28 - 13 Document 178 Filed 10/06/2005

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1

Moreover, even if Booker were to apply retroactively on collateral review, the

2 Supreme Court has consistently held that the fact of a prior conviction is for the court to 3 determine, not the jury. See, Apprendi, 530 U.S. at 490; Booker, 125 S.Ct at 756. 4

Movant further argues that, in view of the holding in Booker, the district court lacked

5 jurisdiction to sentence Movant under the "unconstitutional guidelines." (document # 150, 6 supporting memorandum at 12) Movant claims that Booker indicates that federal courts never 7 had jurisdiction to sentence anyone under the original sentencing guidelines. (Id.) Contrary to 8 Movant's assertion, Booker does not impact the federal court's jurisdiction to sentence a 9 defendant under the Guidelines. Rather, Booker relates to the manner in which a sentence can 10 be imposed. 11

Based on the foregoing, the Court finds that Movant's claims based on Booker fail.

12 IV. Ameline Claim 13

Movant has also filed a Motion for Order Granting Immediate Release (document

14 # 160) in which he asserts a claim under United States v Ameline, 409 F.3d 1073 (9th Cir. 2005) 15 which was decided on June 1, 2005. The Court construes Movant's Motion for Release as a 16 Supplement to his § 2255 Motion. 17

In Ameline, the court held that "when [the court of appeals] is faced with an

18 unpreserved Booker error that may have affected a defendant's substantial rights, and the record 19 is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district 20 court is appropriate for the purpose of ascertaining whether the sentence imposed would have 21 been materially different had the district court known that the sentencing guidelines were 22 advisory" if so, there is plain error requiring resentencing if defendant so desires, and if not, 23 there is no plain error and the original sentence is merely subject to review for reasonableness. 24 Id. at 1075-75. 25

In view of the consistency of the appellate court decisions cited in this Report and

26 Recommendation which hold that Booker does not apply retroactively on collateral review, the 27 Court concludes that Ameline, which is based on Booker, does not apply retroactively on 28 collateral review.

The Ninth Circuit has only held that the procedure set forth in Ameline
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1 applies to cases pending on direct review at the time that Ameline was decided on June 1, 2005. 2 3 4 5 6

Accordingly, Movant's Ameline claim fails. CONCLUSION Based on the foregoing, Movant is not entitled to § 2255 relief. Accordingly, IT IS HEREBY RECOMMENDED that Movant's Motion to Vacate, Set Aside, or

7 Correct Sentence by Person in Federal Custody pursuant to 28 U.S.C. § 2255 (document # 150) 8 be DENIED. 9

IT IS FURTHER RECOMMENDED that Movant's Motion for Order Granting

10 Immediate Release (document # 160), construed as a supplement to his § 2255 Motion, be 11 DENIED. 12

This recommendation is not an order that is immediately appealable to the Ninth

13 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 14 Appellate Procedure, should not be filed until entry of the District Court=s judgment. The parties 15 shall have ten days from the date of service of a copy of this recommendation within which to 16 file specific written objections with the Court. See, 28 U.S.C. ' 636(b)(1); Rules 72, 6(a), 6(e), 17 Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a 18 response to the objections. Failure timely to file objections to the Magistrate Judge's Report and 19 Recommendation may result in the acceptance of the Report and Recommendation by the 20 District Court without further review. See United States v. Reyna- Tapia, 328 F.3d 1114, 1121 21 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate 22 Judge will be considered a waiver of a party=s right to appellate review of the findings of fact in 23 an order or judgment entered pursuant to the Magistrate Judge=s recommendation. See, Rule 72, 24 Federal Rules of Civil Procedure. 25 26 27 28 - 15 Document 178 Filed 10/06/2005

DATED this 6th day of October, 2005.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 Document 178 Filed 10/06/2005

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