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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: 3:99cr30/RV

3:05cv173/RV/MD

LARRY LEWIS

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s brief in support of

petitioner’s 28 U.S.C. § 2255 motion pursuant to section 6(3). (Doc. 292). This

motion is not on the proper form as required by the Local Rules. However, requiring

amendment would be futile, as the motion is subject to summary dismissal. 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 successive and that it should be summarily dismissed.

I. BACKGROUND

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

to distribute cocaine and cocaine base and two counts of possession with intent to

distribute cocaine and cocaine base in violation of 21 U.S.C. § 841. On October 25,

1999 he was sentenced to a term of 360 months imprisonment. Defendant appealed,

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and his conviction and sentence were affirmed on August 25, 2000. (Doc. 261). He

filed a motion for Rule 35 relief (doc. 285) which was denied in October of 2004 (doc.

287). The instant motion pursuant to 28 U.S.C. § 2255 was received by the court on

May 11, 2005. (Doc. 292). In his § 2255 motion defendant essentially contends that

he is entitled to have his sentence vacated or set aside based on the recent Supreme

Court decision in United States v. Booker, 125 S.Ct. 738 (2005).

 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. Defendant’s motion is therefore facially untimely. 

As noted above, defendant maintains that he is entitled to relief based on

United States v. Booker, supra, because his sentence was determined based upon

facts determined by the judge and not the jury. If the right asserted by defendant,

the right to have a jury determine all facts legally essential to his sentence, was

newly recognized by the Supreme Court in Booker, and made retroactively

applicable to cases on collateral review, the one year statute of limitation would run,

pursuant to subparagraph (3), from the date of the Booker decision. However, this

is not the case.

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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: 3:99cr30/RV; 3:05cv173/RV/MD

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)

(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 

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, 125 S.Ct. 738, 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,

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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 timeliness 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.

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 at *29. It did not announce that the new rule

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

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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,

2005 WL 50108 at *14 (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 (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). Since Booker’s effect on sentencing guidelines

cases is not retroactive on collateral review, the defendant’s motion is untimely and

he 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 pursuant to 18 U.S.C. §

2255 (doc. 292) be summarily DISMISSED as untimely. 

At Pensacola, Florida, this 27

th day of May, 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 the

magistrate judge and 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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