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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. 3:95cr3003/RV

3:05cv330/RV/MD

WILTON DALEY

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. §2255 (doc. 151). Rule 4(b) of the Rules

Governing Section 2255 Proceedings provides in part that “[i]f it plainly appears from the

face of the motion and any annexed exhibits and the prior proceedings in the case that the

movant is not entitled to relief in the district court, the judge shall make an order for its

summary dismissal and cause the movant to be notified.” After a review of the record, it

is the opinion of the undersigned that the instant motion should be summarily dismissed.

Defendant was convicted after a jury trial of conspiracy to possess with intent to

distribute cocaine base, two counts of possession with intent to distribute cocaine base on

a date certain and use of a firearm during and in relation to a drug trafficking offense, and

on June 7, 1995 was sentenced to a term of 262 months imprisonment on the drug

offenses and a consecutive 60 month term on the firearm count for a total of 324 months

imprisonment. (Doc. 71). He did not appeal at this point. On December 9, 1996, he filed

a motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 82) which he subsequently moved

to withdraw (doc. 85, & 86). He filed a second motion to vacate in February of 1997 (doc.

88). The motion was granted in part and denied in part (doc. 99 & 101). Defendant’s

conviction on the firearm charge was vacated, and he was resentenced to a term of 324

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1

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000).

2

 Blakely v. Washington, ____ U.S. ____, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

3

 United States v. Booker, 125 S.Ct. 738, 2005 WL 50108 (2005).

Case No: 3:95cr3003/RV; 3:05cv330/RV/MD

months imprisonment on the substantive counts on November 28, 2000. (Doc. 123).

Defendant filed a motion to correct sentence (doc. 138) which was denied (doc. 144). He

appealed after his resentencing, and, finding no reversible error, the Eleventh Circuit

affirmed his conviction and sentence on September 6, 2001. (Doc. 149).

In the instant motion, defendant raises a single claim. He alleges that his sentence

violated the Sixth Amendment of the U.S. Constitution, relying on the recent decision in

United States v. Booker, 125 S.Ct. 738, 2005 WL 50108 (2005).

In the seminal case of Apprendi v. New Jersey,

1

 which was the subject of

defendant’s most recent appeal, the Supreme Court 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, 120 S.Ct. at 2362-63. See also Ring v. Arizona, 536 U.S. 584, 589, 122

S.Ct. 2428, 2432, 153 L.Ed.2d 556 (2002) (concluding under Apprendi that “[c]apital

defendants . . . are entitled to a jury determination of any fact on which the legislature

conditions an increase in their maximum punishment.”). Since Apprendi was decided, the

Supreme Court has decided two cases that relate to federal sentencing, Blakely v.

Washington,

2

 and United States v. Booker,3 the case upon which defendant relies. 

As clarified in Blakely:

the “statutory maximum” for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the jury verdict

or admitted by the defendant. See Ring, supra, 536 U.S. at 602, 122 S.Ct.

at 2428 (“‘the maximum he would receive if punished according to the facts

reflected in the jury verdict alone’” (quoting Apprendi, supra, 503 U.S. at 483,

120 S.Ct. at 2348)) . . . . In other words, the relevant “statutory maximum”

is not the maximum sentence a judge may impose after finding additional

facts, but the maximum he may impose without any additional findings.

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124 S.Ct. at 2537-38 (emphasis in original, some citations omitted); see also In re Dean,

375 F.3d 1287, 1290 (11th Cir. 2004) (quoting Blakely). 

In United States v. Booker, 125 S.Ct. 738, 160 L.Ed.2d 621, 2005 WL 50108 (2005),

the Supreme Court extended its holding in Blakely to the Sentencing Guidelines, holding

that the mandatory nature of the federal guidelines rendered them incompatible with the

Sixth Amendment’s guarantee to the right to a jury trial. This does not mean, however, that

Booker can be applied to cases in which the conviction is final, a fact which is crucial to the

court’s consideration of the instant motion. Both language within Booker, discussed infra,

and Supreme Court precedent indicate otherwise.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) the

Supreme Court held that the Sixth Amendment’s guarantee of the right to a jury trial

applied to the states. In DeStephano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d

1308 (1968) the Court held that Duncan would not be given retroactive application - that

it applied only to those cases that were not final at the time it was decided, and that it did

not apply to cases on collateral attack. The Court reasoned that the right to a jury trial was

fundamental to our system of justice, but that a trial without a jury would not necessarily

result in an inaccurate verdict. Therefore, it would not be necessary to grant a new trial to

every person convicted without a jury. 

In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) the

Supreme Court held that only a jury, not a judge, could make findings on the aggravating

factors necessary to invoke the death penalty. In Schriro v. Summerlin, __ U.S. __, 124

S.Ct. 2519, 159 L.Ed.2d 442 (2004) the Court held that Ring applied only to those cases

that were not final at the time it was decided, and that it did not apply to cases on collateral

attack. The Court reasoned that the rule announced in Ring was a procedural rule, not a

substantive one, because it did not define an element of a crime. Rather, it determined the

manner in which fact finding is done. The Schriro Court relied on DeStephano, supra,

noting that “[i]f . . . a trial held entirely without a jury was not impermissibly inaccurate, it is

hard to see how a trial in which a judge finds only aggravating factors could be.” 124 S.Ct.

at 2526.

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This is instructive on the application of Booker. The Booker Court expressly noted

that its holding was to be applied retroactively to “all cases ... pending on direct review or

not yet final.” Booker, 125 S.Ct. at 769 (citation omitted). It did not announce that the new

rule would apply retroactively for cases on collateral attack, such as this one. This

reasoning necessarily follows from DeStephano and Schriro. In those cases the Court held

that it was not impermissibly inaccurate to conduct a criminal trial entirely without a jury,

or for a judge alone to find aggravating factors necessary to trigger a death sentence.

Based on those holdings, it is difficult to conclude that a hearing in which a judge finds only

aggravating factors that result in an increased sentence could be impermissibly inaccurate.

See Schriro, 124 S.Ct. at 2526.

Moreover, the Booker Court cited prior precedent with approval, stating that “[T]he

constitutional safeguards that figure in our analysis concern not the identity of the elements

defining criminal liability but only the required procedures for finding the facts that

determine the maximum permissible punishment.” Booker, 125 S.Ct. at 755 (citations

omitted). The significance of this is that unlike substantive rules, new rules of procedure

generally are not retroactive. Schriro v. Summerlin, __ U.S. __, 124 S.Ct. 2519, 2523,

2526, 159 L.Ed.2d 442 (2004) (“[I]t does not follow that, when a criminal defendant has had

a full trial and one round of appeals in which the [prosecution] faithfully applied the

Constitution as we understood it at the time, he may nevertheless continue to litigate his

claims indefinitely in hopes that we will one day have a change of heart.”). 

Finally, the Eleventh Circuit has concluded that neither Booker nor Blakely applies

retroactively to cases on collateral review. Varela v. United States, 400 F.3d 864 (11th Cir.

2005); see also In re Anderson, 396 F.3d 1336 (11

th Cir. 2005) (holding that only the

Supreme Court can make a new rule retroactive on collateral review, and that it must do

so explicitly). Since Booker’s effect on sentencing guidelines cases is not retroactive on

collateral review, it is not applicable to this § 2255 motion, and defendant is not entitled to

relief. 

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Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside, or correct sentence (doc. 151) be summarily

DENIED.

At Pensacola, Florida, this 2nd day of September, 2005.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten

days after being served a copy thereof. A copy of objections shall be served upon all other

parties. Failure to object may limit the scope of appellate review of factual findings. See

28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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