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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

LUIS RODRIGUEZ-ROBLES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Case No. C05-5278FDB

ORDER DENYING 2255 MOTION

Petitioner argues that his sentence should be adjusted because the facts used to increase his

offense level and sentence were facts not presented to a jury, and Petitioner cites, among others,

Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 124 S. Ct. 2531 (2004), and

United Stats v. Booker, 125 S. Ct. 738 (2005). 

The Government’s response to the Petition outlines the jurisprudence developed in the

above-cited cases. As this Court has previously noted, the governing rule regarding retroactivity of

judicial decision is “that new rules should always be applied retroactively to cases on direct review,

but that generally they should not be applied retroactively to criminal cases on collateral review.” 

Teague v. Lane, 489 U.S. 288, 303 (1989). There are two exceptions: (1) if the new rule is

substantive, it applies retroactively. Schriro v. Summerlin, 124 S. Ct. 2519, 2522 (2004); (2) if the

new rule implicates fundamental fairness in a way that seriously affects the likelihood of an accurate

conviction, that is “‘watershed rules of criminal procedure’ implicating fundamental fairness and

accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484 (1990)(quoting Teague, 489

U.S. at 311). 

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26 ORDER - 2

Petitioner’s conviction was final before Booker, which announced a new rule. Booker

extended the rule announced in Apprendi and interpreted in Blakely to the Federal Sentencing

Guidelines. Booker essentially rendered the Federal Sentencing Guidelines advisory: “The district

courts, while not bound to apply the Guidelines must consult those Guidelines and take them into

account when sentencing.” 125 S. Ct. at 767. This new rule is not substantive because it does not

affect the criminal statute nor the underlying conduct that constitutes a violation of the statute. 

Neither is the rule a “watershed” rule of criminal procedure implicating fundamental fairness, because

the new rule only alters the manner of determining a defendant’s sentence in that a court is given

more discretion, as the Federal Sentencing Guidelines are advisory rather than mandatory. 

Petitioner did not raise the issue presented in this Section 2255 petition either in the district

court or on appeal. The Apprendi decision could be said to have foreshadowed the Booker ruling,

therefore it cannot be said to have been so novel as to not reasonably be available to counsel. See

Reed v. Ross, 468 U.S. 1, 16 (1984); Smith v. Murray, 477 U.S. 527, 537 (1986). Nevertheless, an

ineffective assistance of counsel claim is unavailable, because prior to Booker and Blakely, the

overwhelming weight of authority militated against the challenge and counsel accordingly cannot be

deemed constitutionally ineffective for failing to pursue it. 

Accordingly, having considered Petitioner’s submission and the Government’s detailed brief

in this matter, the Court concludes that Petitioner’s motion pursuant to 28 U.S.C. § 2255 must be

denied. 

NOW, THEREFORE, IT IS ORDERED: Petitioner’s Motion pursuant to 28 U.S.C. § 2255

is DENIED. 

DATED this 12th day of July, 2005.AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

Case 3:05-cv-05278-FDB Document 6 Filed 07/12/05 Page 2 of 2