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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:98-cr-00019-MP-AK

RONALD ALLAN COHEN,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 1421, Defendant’s Motion to Vacate under 28

U.S.C. § 2255. The Government was ordered to respond, and it has filed a motion to dismiss. 

Doc. 1432. Defendant has filed his response to the motion to dismiss, Doc. 1434, and thus, this

matter is in a posture for decision. Having carefully considered the matter, the Court

recommends that the motion to dismiss be granted in part and denied in part.

Defendant Cohen pled guilty to conspiracy to launder money on January 21, 1999. On

April 25, 2001, he was sentenced to 121 months imprisonment. The Eleventh Circuit affirmed

the judgment, and Defendant filed a petition for writ of certiorari, which was denied on October

6, 2003. See Cohen v. United States, 540 U.S. 821 (2003). The instant petition was filed by

Defendant’s counsel on October 5, 2004. It is therefore timely, and the Government’s contention

to the contrary, which is based on its belief that certiorari was not sought, is misplaced.

However, to the extent that the Government seeks dismissal of Ground One of the

petition, predicated on Blakely v. Washington, it is correct. Following its decision in Blakely v.

Washington, which involved the constitutionality of state sentencing guidelines, the United

States Supreme Court determined that Blakely applies to the Federal Sentencing Guidelines as

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Case No: 1:98-cr-00019-MP-AK

well. United States v. Booker, ____ U.S. ____, 124 S.Ct. 2519, 159 L.Ed. 2d 442 (2004). 

However, the Eleventh Circuit has recently determined that Booker is not retroactively

applicable to cases on collateral review, as “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.” Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005).

Ground Two, however, which is based on counsel’s alleged ineffectiveness, is properly

before the Court for consideration, since the motion to vacate was timely filed. Thus, the motion

to dismiss should be denied as to Ground Two.

In light of the foregoing, it is respectfully RECOMMENDED:

That the motion to dismiss, Doc. 1432, be GRANTED IN PART AND DENIED IN

PART;

That the motion to vacate, Doc. 1421, be DENIED AS TO GROUND ONE ONLY;

That this cause be REMANDED to the undersigned for further proceedings as to Ground

Two of the motion to vacate.

IN CHAMBERS at Gainesville, Florida, this 15th day of July, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

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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