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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:97cr64-RH/WCS

4:05cv109-RH/WCS

KUNZEA JACKSON,

Defendant.

_________________________________/

ORDER DENYING §2255 MOTION

Defendant Kunzea Jackson was convicted and sentenced. Judgment was

entered. She did not appeal.

Ms. Jackson filed a motion under 28 U.S.C. §2255 asserting that her

attorney rendered ineffective assistance by failing to file a notice of appeal. The

§2255 motion also asserted other grounds for relief from the conviction and

sentence. The claim of ineffective assistance in failing to file a notice of appeal

was sustained. All other grounds for relief were rejected. As appropriate when an

attorney ineffectively fails to file a notice of appeal, the original judgment was

vacated, the same sentence was reimposed, and a new judgment was entered. Ms.

Jackson filed a notice of appeal, and the conviction and sentence were affirmed.

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Ms. Jackson now has filed another §2255 motion. The motion is before the

court on the magistrate judge’s report and recommendation (document 312), to

which no objections have been filed. The report and recommendation concludes

that this is a second or successive §2255 motion that must be dismissed for lack of

jurisdiction. 

After entry of the report and recommendation, the United States Court of

Appeals for the Eleventh Circuit entered an order denying an application Ms.

Jackson submitted to that court seeking authorization to file a second or successive

motion. The Eleventh Circuit noted that two claims asserted by Ms. Jackson in her

application to that court were not second or successive and that authorization to

pursue those claims in this district court thus was not required. The Eleventh

Circuit said that all other claims identified by Ms. Jackson were second or

successive, and the court denied authorization to pursue those claims. The report

and recommendation is clearly correct with respect to the claims the Eleventh

Circuit said were second or successive.

The two claims the Eleventh Circuit said were not second or successive were

Ms. Jackson’s assertions that her sentence was imposed in violation of United

States v. Booker, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and that her appellate

counsel rendered ineffective assistance. 

The Booker claim is plainly unfounded. The Eleventh Circuit has squarely

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1 Booker is an application of the principle that began with Apprendi v. New

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

was applied to the federal sentencing guidelines in Booker. This line of cases

recognizes two rights: first, the right to trial by jury with respect to any fact (other

than a prior conviction) that would increase the maximum sentence that could be

imposed on a defendant; and second, the right to have any such fact established by

proof beyond a reasonable doubt. The Supreme Court has held that the jury-right

component of the Apprendi principle is not retroactively applicable to cases on

collateral review. See Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L.

Ed. 2d 442 (2004). As an original matter, one could argue either side of the issue

whether the same should be true of the proof-beyond-a-reasonable-doubt

component of the Apprendi principle. Decisions of the Eleventh Circuit, however,

foreclose, at least at the district court level, any assertion that the proof-beyond-areasonable doubt component of Apprendi can be raised on collateral review. See,

e.g., Varela.

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held Booker not retroactively applicable to cases on collateral review. See Varela

v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (“[W]e conclude that Booker’s

constitutional rule falls squarely under the category of new rules of criminal

procedure that do not apply retroactively to §2255 cases on collateral review.”). 

Ms. Jackson’s case is here on collateral review, and her Booker claim thus fails.1

Any ineffective assistance of appellate counsel claim also fails. First, in her

motion as filed in this court, Ms. Jackson has not asserted ineffective assistance of

appellate counsel. Second, if her claim is that her attorney was ineffective for

failing to raise a Booker claim (and neither her motion in this court nor the

Eleventh Circuit’s description of her application in that court gives any hint of any

other basis for a claim of ineffective assistance of appellate counsel), then the

ineffectiveness claim fails on the merits. The Eleventh Circuit issued its opinion

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affirming Ms. Jackson’s conviction on direct appeal on March 23, 2004. That was

three months before the Supreme Court’s decision in Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Prior to Blakely, no court

had applied the Apprendi principle to a guidelines sentencing system. Failure to

anticipate Blakely or Booker was not ineffective.

In sum, Ms. Jackson’s §2255 motion is second or successive except with

respect to her Booker claim and any claim of ineffective assistance of appellate

counsel. The Booker claim is unfounded because Booker is not retroactively

applicable on collateral review. No ineffective assistance of appellate counsel

claim has been made in the motion at all, but to the extent the reference to Booker

could be deemed to assert a claim for failure of appellate counsel to raise a Booker

issue, counsel was not ineffective. Accordingly,

IT IS ORDERED:

The report and recommendation (document 312) is ACCEPTED and

adopted as the further opinion of the court. Defendant Kunzea Jackson's motion

under 28 U.S.C. §2255 (document 311) is DENIED, partly as second or successive 

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and thus beyond the court’s jurisdiction, and partly as unfounded. The clerk shall 

enter judgment and close the file.

SO ORDERED this 7th day of October, 2005.

s/Robert L. Hinkle 

Chief United States District Judge 

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