decision within which to file his § 2255 motion. Id. at *11.

In Booker, the Supreme Court excised the two parts of the
Sentencing Reform Act that rendered the mandatory Guidelines sys-
tem unconstitutional: the part in 18 U.S.C. § 3553(b)(1) making
the Guidelines result binding on the Sentencing Court; and the
part in § 3742(e) requiring de novo review of sentences on app-
eal. Booker, 125 S.Ct. at 764. In doing so, the Supreme Court
stated that "[w]it these two sections excised (and statutory
cross-references to the two sections consequently invalidated),
the remainder of the Act satisfies the Court's Constitutional re-
quirement. Id. The Supreme Court in Booker instructed that its
remedial holding applies to cases on direct review. Id. at 769
("We must apply today's holding-both the Sixth Amendment holding
and our remedial interpretation of the Sentencing Act to all

cases on direct review).

Nor it is a serious problem for initial habeas corpus petit-

ions. See Schriro v. Summerlin, 542 U.S. ,159 L.Ed.2d 442, 142

S.Ct. 2519 (2004) provides compelling support for Booker's retro-
activity to initial habeas cases. Although the Supreme Court in
Summerlin rejected retroactivity of its new procedural rule ann-
ounced in Ring v. Arizona, 536 U.S. 584, 153 L.Ed.2d 556, 122
S.Ct. 2428 (2002)(holding a jury, not a judge, must make the
findings necessary to impose the death penalty), it did so be-
cause the possibility of inaccuracy was minimal in that both
factfinders there were required to use the same beyond a reason-
able doubt standard. Pre-Booker, on the other hand, judges det-

ermined sentencing enhancements factors by the preponderance of


active the petitioner illegal sentence must be readily corrected,
because a manifest injustice has occurred which affects the fund-
amental fairness and intrudes upon this Court's integrity. Thus,
the petitioner preserves every enhancement, even the obstruction
of justice, all have violated the rule announced in Booker, the

petitioner has not forfeited none of his issues.

The petitioner contends that he had a constitutional right to
have the jury determine his guilt on all of the elements of his

crime, long before the rulings in Apprendi, Blakely, and Booker,

cases were ever decided, thus, the Fifth and Sixth Amendment pro-
tections and rights should have been binding on the petitioner's

trial from the on set. See Sullivan v. Lousiana, 113 S.Ct. at

2083; and InRe Winship, 397 U.S. 358)(rather the question here
is not whether the Booker decision is retroactive, but rather
the petitioner's was deprived of his constitutional right's by

the Supreme Guidelines being rendered unconstitutional).

WHEREFORE, the petitioner prayerfully request that his Motion
to Preserve his Booker claim should be granted in light of the

interest of justice.

Respectfully Submitted,

Frank Anthon arold, pro-se,

-8-


if the claim had not arisen or could not have been raised at the

time of the prior petition." Benchoff v. Colleran, 404 F.3d 812,

817 (3rd Cir. 2005)(emphasis in original)(citing Singleton v.
Norris, 319 F.3d 1018, 1023 (8th Cir. 2003)("A habeas petition
raising a claim that had not arisen at the time of a previous
petition is not barred by § 2244(b)..."); Medberry v. Crosby,

351 F.3d 1049, 1062 (11th Cir. 2003)("A petition challenging
[prison] disciplinary proceedings would not be second or succ-
essive where the claim could not have been raised in an earlier
petition and does not otherwise constitute an abuse of the writ");
Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002)(noting that §
2244(b) is a modified form of res judicata and, therefore, that
a subsequent habeas petition should not be barred as “second or
successive" if it raises only claims that could not have been
raised in an initial petition); ImRe Cain, 137 F.3d 234, 236
1998) (applying common law principles to [AEDAP] and holding that
petitions that "do not present claims that were or could have
been raised in...earlier petitions are not "second or successive"

petitions.

In Dodd v. United States, Case No. 04-5286 (U.S. June 20,

2005). The Dodd Court held that the one year limitation period
for filing under Title 28 U.S.C. § 225596(3) runs from "the date
on which the right asserted was initially recognized by the Sup-
reme Court" and not on the date that the Supreme Court declares
the right retroactively applicable. Id. at *9. Thus, if this
Court decides a case recognizing a new right, a federal prisoner

seeking to assert that right will have one year from this Court's


of the evidence standard. Post-Booker those facts must be deter-
mined by a jury and proven and proven beyond a reasonable doubt.
Accordingly, pre-Booker the factfinding process so "seriously
diminished accuracy as to produce an “impermissibly large risk

of injustice." Summerlin, 159 L.Ed.2d at 451 (emphasis original).

The petition brings to this Honorable Court's attention that
the Eleventh Circuit has not ruled that Booker is retroactive
for purposes of collateral review. Thus, the Dodd decision raises
serious red flags, when the AEDPA was intertwined to include a

one year time limitation, asserting that all defendants/petitioners

have one year from the date of the decision in Booker to file a

§ 2255, or worse to at least preserve the claim by and through

§ 225596(3). It should be further noted that prior to the petit-
jioner's first § 2255 motion, the law in Booker was not decided
and the petitioner could not have failed and/or raised this issue
at an earlier time, because the law was unsettled. Moreover, any
assertions in regard to a second or successive petition is erron-
eous, only the Court of Appeals have the authority and discret-
ion to entertain a Second or Successive § 2255 motion. Nor should
this court conclude that the petitioner is launching a collateral
attack at his conviction and sentence in light of Booker, thus,
petitioner is only preserving his Booker claim before the dead-
line expires. Evenmoreso, the petitioner would show in this mot-
ion that he has standings to show that the Booker decision is
applicable to his case, especially the way he was sentenced above
his statutory maximum, which has been rendered unconstitutional

in light of Booker, now that the Supreme Court has cleared up


CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the afore-
mentioned § 225516(3) has been sent to the following parties listed

below by way of United States Postal Services prepaid for delivery

on this 7 day oF anor” in the year of 2006:

Attn:Michael T. Simpson

Assistant U.S. Attorney

U.S. Department of Justice

Northern District of Florida

111 North Adams Street, Fourth Floor
Tallahassee, Florida 32301

Atak Anthony Harold. pro-se, ;

Reg. No. 10173-017

Federal Correctional Complex-USP
P.O. BOX 1033

Coleman, Florida 33521-1033


UNITED STATES DISTRICT COURT
NORTHERY ;ISTRICT OF FLORIDA
TALLAHASSEE DIVISION

FRANK ANTHONY HAROLD, CASE NO. 94-04026-001
PETITIONER,

Vv.

5 pila: 04

UNITED STATES OF AMERICA,
RESPONDENT,

* ~
PETITIONER'S REQUEST TO PRESERVE HIS BOOKER CLAIM=~ ‘©
PURSUANT TO FED.R.CIV.PROC. § 225516(3)

COMES NOW, the petitioner, Frank Anthony Harold, (hereinafter
referred to as the defendant), pro-se, in the above styled and
captioned cause and Respectfully submits his request to Preserve
his Booker claiml| pursuant to Federal Rules of Civil Procedure
§ 225516(3). This action is being presented in Good Faith and ef-
fort on the petitioner's behalf. The following continues to wit

i support thereof:

JURISDICTION

This Honorable Court is vested with the jurisdiction and auth-
ority to hear and address the present matter. See Title 28 U.S.C.
§ 225596(3). The petitioner brings to this Honorable Court's att-
ention that the present request should not be construed as a sec-

ond or successive § 2255 motion.

In United States v. Cabey, Case No. 04-277, decided November

15, 2005, the Court held:

In considering the meaning of "second or successive" in InRe

Taylor, 171 F.3d 185 (4th Cir. 1999), we noted that "Congress did

not write upon a clean slate when it enacted the AEDPA." Id. at

ribkv


all of the misinterpretations of the law and make the guideline
(advisory) and not (mandatory) as they were when the petitioner's
sentence was enhanced. Specifically the petitioner was deprived
of his Fifth and Sixth Amendment Right, because no jury found

the factors necessary to impose the petitioner's an enhanced

sentence.

In the Case at bar, the district court found on its own notion
that the petitioner's criminal history is so egregious and serious
that criminal history category VI does not adequately reflect the
seriousness of the defendant's past criminal conduct, the likei-
hood that he will commit other criminal conduct, nor does it take
into consideration the extremely violent nature of the defendant's
prior criminal history. The defendant's 23 criminal history points
would place him in an extrapolated criminal history category IX
with a sentencing guideline range of 457 to 522 months. The Court
believes that a sentence of 480 months imprisonment more accurately
reflects the seriousness and extent of the defendant's prior crim-

inal history and is an appropriate sentence in this case.

The petitioner contends that the district court clearly erred
by creating a criminal history category that exceeded Congresses
power and authority, when it made 6 criminal history categories
in the Sentencing Guidelines. The petitioner also points out that
his Booker-type error, is so instructive, because the petitioner's
statutory maximum, was triggered by the district judge, without
the jury making the requisite findings necessary to impose a sen-
tence in this Case which exceeded the powers of Congress, is cle-

arly void, and unconstitutional; and once Booker is make retro-


187 (quoting United States v. Texas, 507 U.S. 529, 534 (1993).

Instead, "AEDPA codified and extended judicially constructed lim-
its on the considerations of second and successive applications
for collateral relief. Id. (quoting InRe Vail, 115 F.3d 1192,

1194 (4th Cir. 1997)(en banc). Specifically, as we have opined

in the context of a Section 2244(b) motion seeking authorization
to file a successive application, AEDPA incorporate longstanding
habeas practice, such as the “abuse of the writ" doctrine. InRe
Williams, 364 F.3d 235, 239 (4th Cir. 2004). The abuse of the

writ "doctrine generally precluded a federal court from consider-
ing claims presented in a successive application unless the app-
licant could demonstrate cause and prejudice." Id. Under the doc-
trine, codified by AEDPA, "a claim which did not arise until after
a prior petition was filed would not be barred as “second or succ-

essive." Taylor, 171 F.3d at 187.

We have therefore concluded in prior cases that a petition
which "expressly seeks to raise only those issues that originated
...after [petitioner's] first § 2255 petition-had been granted"
is not "second or successive" for purposes of AEDPA. Id. at 187-
88, See also Slack c. McDaniel, 529 U.S. 473-87 (2000)(noting
that pre-AEDPA law, including the abuse of the writ doctrine,
should be used in interpreting the meaning of the term of art
"second or successive" in AEDPA); Felker v. Turpin, 518 U.S. 651,
664 (1996)(noting that AEDPa's restrictions on second or succes-
sive petitions "are well within the compass" of the evolution of

the abuse of the writ doctrine.

Other Circuits that have examined this issue since our decis-


ion in Taylor, have uniformly agrees with our conclusion. The
Eighth Circuit, for example, noting Supreme Court suggesting that
"second or successive" remains a term of art that must be given
meaning by reference both to the body of case law that developed
before the enactment of AEDPA and the policies that prompted
AEDPA's enactment," held that a subsequent Section 2254 petition
that raised claims which could not have been brought in the pet-
itioner's first petition was not "second or successive" for AEDPA
purposes. Crouch v. Norris, 251 F.3d 720, 725 (8th Cir. 2001).
Such petitions do not abuse that habeas process, the court noted
because the petitioner, by definition, could not have raised the
claims in his first habeas petition. Id. at 724. In addition,

the court noted that public policy concerns about undue delay

and the finality of State Court convictions motivated Congress
when it passed AEDPA. Id. at 724. An inmate challenging, at the
first possible instance, the application of State Parole proceed-
ings against him does not offend these public policy concerns.
The petition does not implicate the finality of the conviction
and sentence, nor does it cause any undue delay because the in-
mate could not have raised the challenge any earlier. See Id.
Accordingly, reading "second or successive" to include such pet-

itions would not further the purposes behind AEDPA.

Upon reviewing the case law and legislative history of AEDPA,
the Third Circuit similarly concluded that "a subsequent petition
that challenges the Administration of a sentence is clearly not

a "second or successive" petition within the meaning of § 2244,