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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:89cr4006-WS

vs. Case No. 4:05cv28-WS/WCS

STANTON DONOVAN ROBINSON,

Defendant.

 /

REPORT AND RECOMMENDATION ON § 2255 MOTION

Defendant filed a 28 U.S.C. § 2255 motion and supporting memorandum. Docs.

738 and 739. Defendant asserts that his sentence was based on facts not found by a

jury beyond a reasonable doubt in violation of, inter alia, Apprendi v. New Jersey, 530

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 

 , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See also United States v. Booker, U.S. 

, 125 S.Ct. 738, 2005 WL 50108 (January 12, 2005) and Ring v. Arizona, 536 U.S. 584,

122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Defendant asserts that he preserved his

argument by raising it on direct appeal and by prior § 2255 motion, and alternatively that

this argument is raised as an amendment to his appeal or the prior § 2255 motion. 

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1

 That Defendant may have raised a claim on appeal which would have been

successful under Apprendi and its progeny does not change the fact that this is now

before the court on collateral review under § 2255. That a claim was properly preserved

on appeal would benefit Defendant if the new rule applied retroactively, however, as the

claim would not be procedurally defaulted. Cf. Bousley v. United States, 523 U.S. 614,

619-622, 118 S.Ct. 1604, 1609-11, 140 L.Ed.2d 828 (1998) (citations omitted) (finding

that a recent decision applied retroactively but that it was subject to procedural default

doctrine).

Case Nos. 4:89cr4006-WS and 4:05cv28-WS/WCS

Defendant filed a § 2255 motion seeking relief under Apprendi. Doc. 695. The

motion was untimely under the one year limitations period of § 2255, deemed to run

from the date his conviction became final rather than the date on which the right was

newly recognized, as Apprendi had not been made retroactive on collateral review. 

Doc. 703. The motion was denied without prejudice to refiling if the right recognized in

Apprendi was ever made retroactive. Docs. 703 (report and recommendation), 707

(adopting order), and 708 (judgment entered March 7, 2001). 

The Eleventh Circuit subsequently held that Apprendi established a new

procedural rule which did not apply retroactively on collateral review. McCoy v. United

States, 266 F.3d 1245, 1256-58 (11th Cir. 2001). The Eleventh Circuit has recently

determined that Blakely and Booker do not apply retroactively on collateral review. 

Varela v. United States, F.3d , 2005 WL 367095 (11th Cir. February 17, 2005)

(finding "essentially dispositive" the opinion in Schriro v. Summerlin, 542 U.S. , 124

S.Ct. 2519, 159 L.Ed.2d 442 (2004), which concluded that Ring announced a new rule

of procedure which did not apply retroactively on collateral review) (other citations

omitted). Like the previous motion the current § 2255 motion is untimely; moreover it is

now clear that Defendant is not entitled to relief because the cases cited do not apply

retroactively on collateral review.1

 

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Case Nos. 4:89cr4006-WS and 4:05cv28-WS/WCS

It is therefore respectfully RECOMMENDED that the § 2255 motion (doc. 739),

be SUMMARILY DISMISSED. 

IN CHAMBERS at Tallahassee, Florida, on February 24, 2005.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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