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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No: 3:95cr3038/LAC

3:06cv26/LAC/MD

GREGORY CLIFF EVANS

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. 231). 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 motion is

untimely and that it should be summarily dismissed.

BACKGROUND and ANALYSIS

Defendant pleaded guilty to charges of conspiracy to possess with intent to

distribute 1000 kilograms or more of marijuana, and was sentenced to a term of 360

months imprisonment on June 11, 1996. (Doc. 207). He appealed, and the appellate

court entered its mandate granting a subsequent motion to dismiss the appeal with

prejudice on March 9, 1999. (Doc. 189). His sentence was reduced to 180 months

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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).

Case No: 3:95cr3038/LAC; 3:06cv26/LAC/MD

pursuant to a Rule 35 motion on June 8, 2000. (Doc. 214). Nothing further was filed

until defendant filed the instant motion to vacate on January 17, 2006. 

Title 28 U.S.C. § 2255 imposes a one year time limitation on the filing of

motions under this section. The one year period of time runs from the latest of:

(1) the date on which the judgment of conviction becomes

final;

(2) the date on which the impediment to making a motion

created by governmental action in violation of the

Constitution or laws of the United States is removed, if the

petitioner was prevented from making a motion by such

governmental action;

(3) the date on which the right asserted was initially

recognized by the Supreme Court, if that right has been

newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or

claims presented could have been discovered through the

exercise of due diligence.

28 U.S.C. §2255. To have been timely filed, defendant’s motion should have been

within one year from the date his criminal conviction became final. Clearly, it was

not.

Although he does not directly state as much, defendant appears to believe that

he can circumvent the time limitation on filing § 2255 motions by relying on the

United States Supreme Court case of United States v. Booker, 543 U.S. 220, 125 S.Ct.

738, 160 L.Ed.2d 621 (2005). However, this attempt fails, as Booker is not

retroactively applicable on collateral review.

In the seminal case of Apprendi v. New Jersey,

1

 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)

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2

 Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

3

 United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Case No: 3:95cr3038/LAC; 3:06cv26/LAC/MD

(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 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.

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, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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. It

excised two parts of the Sentencing Reform Act to cure the constitutional defects:

18 U.S.C. § 3553(b)(1), which made the guidelines result binding on the sentencing

court and § 3742(e), which required de novo review of sentences on appeal. Id. at

764. 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.

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Case No: 3:95cr3038/LAC; 3:06cv26/LAC/MD

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,

542 U.S. 348, 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.

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

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Case No: 3:95cr3038/LAC; 3:06cv26/LAC/MD

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

findingthe 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, 542 U.S. 348,

124 S.Ct. at 2523, 2526 (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 and other appellate courts have held that neither

Booker nor Blakely applies retroactively to cases on collateral review. Varela v.

United States, 400 F.3d 864, 866-868 (11th Cir.), cert. denied, 126 S.Ct. 312, 163

L.Ed.2d 269 (2005); see also In re Anderson, 396 F.3d 1336 (11th Cir. 2005) (holding

that only the Supreme Court can make a new rule retroactive on collateral review,

and that it must do so explicitly); Bey v. United States, 399 F.3d 1266, 1269 (10th Cir.

2005) (“Booker may not be applied retroactively to second or successive habeas

petitions.”); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005) (“[W]e

conclude that Booker's rule does not apply retroactively in collateral

proceedings....”); Green v. United States, 397 F.3d 101, 103 (2nd Cir. 2005) (per

curiam) (“[N]either Booker nor Blakely [v. Washington, 542 U.S. ----, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004),] apply retroactively to Green's collateral challenge.”);

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

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Case No: 3:95cr3038/LAC; 3:06cv26/LAC/MD

12, 2005.”); Cirilo-Munoz v. United States, 404 F.3d 527, 533 (1st Cir. 2005) (it is

unlikely that the Supreme Court will adopt a retroactivity analysis that opens up to

required reexamination practically all of the federal sentences imposed since the

guidelines went into effect in 1987). Since Booker’s effect on sentencing guidelines

cases is not retroactive on collateral review, it is not applicable to defendant’s §

2255 motion, and does not assist defendant in defeating the time bar. Therefore,

defendant’s motion should be dismissed. 

Accordingly, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §

2255 (doc. 231) be summarily DISMISSED as untimely. 

At Pensacola, Florida, this 23

rd day of January, 2006.

 /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; Local Rule 27(B); United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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