Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

4:99cr23-RH

vs. 4:03cv9-RH/WCS

NGHIA LE,

Defendant.

 /

ORDER DENYING CORRECTED MOTION TO AMEND

Defendant, represented by counsel, previously submitted a pro se letter asking

the court to authorize counsel to assist him in filing an amended 28 U.S.C. § 2255

motion. Doc. 157. Defendant sought to raise a claim under United States v. Booker, 

U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (January 12, 2005). See also Blakely v.

Washington, 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 

In response to Defendant's pro se motion, the court noted that counsel "may file

any motion proper to these § 2255 proceedings on Defendant's behalf," but to the

extent that Defendant wished to raise a claim under Booker, he was not entitled to do so

because Blakely and Booker do not apply retroactively on collateral review. Doc. 155,

p. 2, citing Varela v. United States, 400 F.3d 864, 867 (11th Cir. 2005) (finding

Case 4:99-cr-00023-RH-CAS Document 167 Filed 05/16/05 Page 1 of 4
Page 2 of 4

1

 Booker was pending on direct review, and there is no indication in the opinion

that it should apply retroactively. The Court said "we must apply today's holdings--both

the Sixth Amendment holding and our remedial interpretation of the Sentencing Act--to

all cases on direct review." 125 S.Ct. at 769 (emphasis added, citations omitted). See

also In re Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005) (noting that the Supreme

Court has not made Booker retroactive on collateral review). 

2

 Defendant quotes a footnote, which provides in part that "[a]lthough a

misallocation of factfinding responsibility (judge versus jury) does not warrant retroactive

application, [under Schriro], the same cannot be said for the retroactivity of application

of a preponderance of evidence standard as opposed to a reasonable doubt standard. .

4:99cr23-RH and 4:03cv9-RH/WCS

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

2519, 159 L.Ed.2d 442 (2004), that Ring announced a new rule of procedure which did

not apply retroactively on collateral review) (other citations omitted); also citing McCoy

v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001) (which held that Apprendi did

not apply retroactively on collateral review).1

Through counsel, Defendant has now submitted a motion for leave to amend and

corrected motion for leave to amend the § 2255 motion. Docs. 162 and 163. The

former supercedes the latter, which is therefore denied as moot below. Defendant

asserts that he did not have the opportunity to outline the nature of his claim in the pro

se motion. Doc. 163. In the proposed supplement and supporting memorandum,

Defendant asserts that Varela and cases out of other circuits were wrongly decided. 

Doc. 163, attachment, p. 3. 

Defendant asserts that Booker is a watershed rule which should apply

retroactively under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334

(1989). Id. Defendant argues that, contrary to Varela, Schriro is not dispositive

because it involved only the fact finder, and not the burden of proof aspect of Apprendi. 

Id., pp. 3-4, citing United States v. Kelley, 355 F.Supp.2d 1031, 1039 (D. Neb. 2005).2

Case 4:99-cr-00023-RH-CAS Document 167 Filed 05/16/05 Page 2 of 4
Page 3 of 4

. . Application of a lower standard of proof may be an error that significantly affects

factfinding accuracy and undermines society's confidence in the result." 355 F.Supp.2d

1039, n. 9 (citations omitted). 

3

 Whether a new rule applies retroactively on collateral review in Florida is

governed by the less restrictive standard of Witt v. State, 387 So.2d 922 (Fla. 1980). 

Id., at *8 and n. 8 (majority opinion, comparing Witt and Teague, but "we should not

blind ourselves to how other courts interpret Apprendi. We consider it relevant, though

not dispositive that no court anywhere in the country, whether state or federal, has held

Apprendi to apply retroactively.") (collecting cases, including McCoy). See also Id., at

*16-*21 (J. Anstead, dissenting) (comparing the Teague and Witt analyses). 

4:99cr23-RH and 4:03cv9-RH/WCS

Id. It is correct that burden of proof requirement was not at issue in Schriro, because

aggravating factors there had to be proven to a judge beyond a reasonable doubt. 124

S.Ct. at 2522, n. 1. See also, Hughes v. State, So.2d , 2005 WL 977019, at *10-

*15 (Fla. April 28, 2005) (J. Pariente, dissenting) (noting that Apprendi involved the

identity of the decision maker as a function of the right to jury trial, and the burden of

proof governed by due process; finding the beyond a reasonable doubt requirement of

Apprendi should apply retroactively).3

As acknowledged by Defendant, this court is bound by Eleventh Circuit

precedent. Doc. 163, attachment, p. 5. The Eleventh Circuit has consistently found that

Apprendi and extensions thereof do not apply retroactively on collateral review. McCoy,

266 F.3d at 1256-58; In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005) (Booker,

like Blakely and Ring, was based on an extension of Apprendi, and defendant could not

show the Court had made it retroactive); In re Dean, 375 F.3d 1287, 1290 (11th Cir.

2004). Defendant is not entitled to amend to claim reliance on a case which does not

apply retroactively to him. Additionally, this claim is untimely under the one year

limitations period of § 2255, which is commenced anew for a new right only "if that right

has been newly recognized by the Supreme Court and made retroactively applicable to

Case 4:99-cr-00023-RH-CAS Document 167 Filed 05/16/05 Page 3 of 4
Page 4 of 4

4:99cr23-RH and 4:03cv9-RH/WCS

cases on collateral review." § 2255; see also " Dean v. United States, 278 F.3d 1218,

1222 (11th Cir. 2002) (discussing relation back of untimely § 2255 amendments). 

The motion to amend is therefore denied, though the issue is preserved in the

event of an appeal. To that end, in the unlikely event there is any evidence outside the

record which is relevant to this claim, it may be submitted at the hearing. 

Accordingly, it is ORDERED:

1. Defendant's motion for leave to amend (doc. 162) is DENIED AS MOOT.

2. Defendant's corrected motion for leave to amend (doc. 163) is DENIED. 

DONE AND ORDERED on May 16, 2005.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 4:99-cr-00023-RH-CAS Document 167 Filed 05/16/05 Page 4 of 4