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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:96cr20-WS

vs. Case No. 4:05cv454-WS/WCS

KENNETH LAMAR ELLINGTON,

Defendant.

 /

REPORT AND RECOMMENDATION TO SUMMARILY DISMISS § 2255 MOTION

Defendant filed a pro se motion to vacate sentence pursuant to 28 U.S.C. § 2255

and supporting memorandum of law. Docs. 55 and 56. 

Defendant raises two grounds in support of his § 2255 motion. He challenges

the enhancement of his sentence based on facts not admitted by him or found by a jury

beyond a reasonable doubt (ground one), relying on United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), 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). Doc. 56, pp. 4-7. He also asserts ineffective

assistance of counsel for failing to challenge the enhancement of sentence asserted in

ground one. Id., pp. 7-8. 

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Case Nos. 4:96cr20-WS and 4:05cv454-WS/WCS

There is a one year time limit for filing a § 2255 motion, which 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 Ellington's conviction became final on October 20, 1997, when the

Supreme Court denied certiorari review. Ellington v. United States, 522 U.S. 939, 118

S.Ct. 352, 139 L.Ed.2d 274 (1997) (mem.). If the one year commenced from the date

the conviction became final under clause (1), the § 2255 motion is unquestionably

untimely. 

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

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

right recognized in Booker, Blakely, and Apprendi has not been "made retroactively

applicable to cases on collateral review." Varela v. United States, 400 F.3d 864, 867

(11th Cir.), cert. denied, U.S. , 126 S.Ct. 312 (2005) (Blakely and Booker do not

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

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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. 4:96cr20-WS and 4:05cv454-WS/WCS

58 (11th Cir. 2001), cert. denied, 536 U.S. 906 (2002) (Apprendi does not apply

retroactively on collateral review).1

It is therefore respectfully RECOMMENDED that the § 2255 motion (doc. 55) be

SUMMARILY DISMISSED as untimely. 

IN CHAMBERS at Tallahassee, Florida, on January 4, 2006.

 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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