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 Fed.R.App.P. Rule 26 was amended in 2002 to exclude intermediate weekends

and holidays for a period of less than eleven days; at the relevant time it excluded

weekends and holidays only when the period was less than seven days. 

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:01cr22-RH 

vs. Case No. 4:05cv144-RH/WCS

MICHAEL ANTHONY JAMES, 

Defendant.

 /

REPORT AND RECOMMENDATION ON § 2255 MOTION

This cause is before the court on Defendant's motion to vacate sentence filed

pursuant to 28 U.S.C. § 2255. Doc. 33. 

Defendant entered a guilty plea and was sentenced to a term of 312 months

imprisonment. Judgment was entered on the docket on September 18, 2001. Doc. 31. 

Defendant did not appeal. His conviction became final on September 28, 2001, when

the time for filing a notice of appeal expired. Fed.R.App.P. 4(b)(1) (allowing ten days for

filing a notice of appeal).1

 

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Case Nos. 4:01cr22-RH and 4:05cv144-RH/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. See also § 2255 Rule 3(d) (as amended effective December 1, 2004) ("[t]he

time for filing a motion is governed by 28 U.S.C. § 2255, para. 6."). If the one year

commenced from the date the judgment became final, the § 2255 motion is clearly

untimely. 

The other commencement date arguably applicable here is subparagraph (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." Defendant seeks relief pursuant to United

States v. Booker, U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (January 12, 2005) and

Blakely v. Washington, 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See also,

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

 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

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2

 Defendant asserts that the holdings should apply retroactively. Doc. 33,

attached memorandum p. 5. He also asserts that, because Booker and Blakely clarified

Congressional intent, they are like clarifying amendments to the sentencing guidelines

which (unlike substantive amendments) should apply retroactively. Id., pp. 9-11. The

cases have applied clarifying amendments retroactively only in the context of a direct

appeal and a § 2255 motion. United States v. Armstrong, 347 F.3d 905, 908 (11th Cir.

2003), citing Burke v. United States, 152 F.3d 1329, 1331-32 (11th Cir.1998), cert.

denied, 526 U.S. 1145 (1999) (other citation omitted). The court in Burke found,

however, "that a claim that the sentence imposed is contrary to a post-sentencing

clarifying amendment is a non-constitutional issue that does not provide a basis for

collateral relief in the absence of a complete miscarriage of justice." 152 F.3d at 1332. 

See also Lynn v. United States, 365 F.3d 1225, 1232, 1233 and n. 15 (11th Cir.), cert.

denied, 125 S.Ct. 167 (2004) (collecting cases, including Burke). 

Case Nos. 4:01cr22-RH and 4:05cv144-RH/WCS

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). 

Though Defendant argues in favor of retroactive application,2

 binding precedent

in this circuit holds that Booker and Blakely do not apply retroactively on collateral

review. Varela v. United States, 400 F.3d 864, 867 (11th Cir. 2005) (finding "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).

As the motion is untimely, it is recommended that it be summarily dismissed

without prejudice, such that a future § 2255 motion will not be considered second or

successive. 

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Case Nos. 4:01cr22-RH and 4:05cv144-RH/WCS

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

sentence pursuant to 28 U.S.C. § 2255 (doc. 33) be SUMMARILY DISMISSED without

prejudice.

IN CHAMBERS at Tallahassee, Florida, on May 20, 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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