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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:96cr64-RH

vs. Case No. 4:05cv309-RH/WCS

DANIEL DALMAU, 

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTION TO VACATE

Through counsel, Defendant filed a "Request for Authorization to File a Delayed

Rule 9 Motion to Vacate, Set Aside, and to Correct" his sentence under 28 U.S.C. §

2255, or for a new trial. Doc. 146. He also filed a § 2255 motion . Doc. 147. 

Defendant challenges his sentence based on United States v. Booker, 543 U.S. 

 , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See also, Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Apprendi v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant asserts that his § 2255

motion "will satisfy the requirements of a delayed Rule 9 request and that lack of

jurisdiction, able to be brought at any time, supercedes the mandates of the AEDPA." 

Doc. 147, attached "Delayed Rule 9 Motion," p. 2. 

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Case Nos. 4:96cr64-RH and 4:05cv309-RH/WCS

The § 2255 Rule 9 quoted by Defendant is no longer valid. See § 2255 Rule 9

(as amended effective December 1, 2004) (addressing only second or successive

motions). Subsection (a), requiring prejudice to the Government due to delay in filing, 

was deleted as unnecessary in light of the one year limitations period of § 2255 as

amended by the AEDPA (effective April 24, 1996). See § 2255 Rule 9 (Advisory

Committee Notes to 2004 Amendments). 

The one year time limit for filing a § 2255 motion 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 movant 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.

§ 2255. 

Defendant filed an appeal but did not seek certiorari review. Doc. 147, p. 3. His

conviction was affirmed on September 15, 1998. Doc. 128. His conviction became final

90 days later, when the time to file a petition for writ of certiorari expired. Clay v. United

States, 537 U.S. 522, 123 S.Ct. 1072, 1075, 155 L.Ed.2d 88 (2003) (if a petition is not

filed, conviction becomes final when the 90 days, counted from the opinion rather than

the mandate, expires). If the one year commenced from the date of finality under

clause (1), therefore, the motion is untimely.

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1 See also Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005) (agreeing

with the Sixth, Seventh, Tenth, and Eleventh Circuits that Booker is not retroactive)

(citing Varela, other citations omitted); Lloyd v. United States, 407 F.3d 608, 615-616

(3d Cir. 2005) (joining the other circuits, collecting cases). 

Case Nos. 4:96cr64-RH and 4:05cv309-RH/WCS

The other commencement date arguably applicable, for a "right . . . newly

recognized by the Supreme Court" under clause (3), does not apply because the right

has not been "made retroactively applicable to cases on collateral review." Varela v.

United States, 400 F.3d 864, 867 (11th Cir. 2005) (Blakely and Booker do not apply

retroactively on collateral review); McCoy v. United States, 266 F.3d 1245, 1256-58

(11th Cir. 2001), cert. denied, 536 U.S. 906 (2002) (Apprendi does not apply

retroactively on collateral review).1

 

Finally, Defendant's contention that his claim is jurisdictional and therefore may

be brought at any time is not persuasive. See United States v. Cotton, 535 U.S. 625,

629-632, 122 S.Ct. 1781, 1784-86, 152 L.Ed.2d 860 (2002) (omission of drug quantity

from indictment in violation of Apprendi did not deprive trial court of jurisdiction,

unpreserved claim could be corrected on appeal only on a showing of plain error);

McCoy, 266 F.3d at 1249 (Apprendi error not a jurisdictional defect; finding "implicit

confirmation" for this conclusion in cases applying plain error or harmless error review, a

standard which does not apply to jurisdictional error); Booker, 125 S.Ct. at 769 ("we

expect reviewing courts to apply ordinary prudential doctrines . . . for example, whether

the issue was raised below and whether it fails the 'plain-error' test."); United States v.

Duncan, 400 F.3d 1297, 1301-02 (11th Cir.), cert. denied, S.Ct. , 2005 WL

2493971 (October 11, 2005) (applying plain error review to Booker claim, noting this

language from Booker, and collecting cases applying plain error standard). 

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Case Nos. 4:96cr64-RH and 4:05cv309-RH/WCS

It is therefore respectfully RECOMMENDED that Defendant's motion to file

delayed § 2255 motion (doc. 146) be DENIED, and that the § 2255 motion (doc. 147) be

SUMMARILY DISMISSED as untimely. 

IN CHAMBERS at Tallahassee, Florida, on October 14, 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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