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The parties agree that the procedural history of this case is very confusing. (Dkt. #7 at 3,

Govt’s Response; Dkt. #10 at 1, Petitioner’s Reply). Because this Court is recommending

dismissal on a statute of limitations basis, only the history relevant to that issue is set out here. 

REPORT AND RECOMMENDATION

Page 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICKEY VALCUE POLK, )

)

Petitioner, ) CASE NO. C05-2003-JCC-MJB

) (CR93-271-JCC; CR93-515-JCC)

v. )

) REPORT AND RECOMMENDATION

UNITED STATES OF AMERICA, )

)

Respondent. )

_________________________________ )

INTRODUCTION

Petitioner is a federal prisoner who is currently confined at the FCI Victorville in

Adelanto, California. Petitioner has filed a motion under 28 U.S.C. § 2255 to vacate, set

aside, or correct his federal court sentence. The government has filed a response, raising

the statute of limitations as a bar to the Court’s consideration of petitioner’s motion. 

Because the government is correct in its argument, petitioner’s motion should be

dismissed as untimely.

PROCEDURAL HISTORY1

In 1993, petitioner pleaded guilty on two different indictments, one filed in the

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Although petitioner cites Blakely, that case applies only to the Washington state

sentencing scheme, not the federal sentencing guidelines under which petitioner was sentenced.

REPORT AND RECOMMENDATION

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Western District of Washington (CR-93-271-JCC, Dkt. #35), and one transferred from

the Eastern District of California (CR-93-515-JCC; Dkt #3). The indictments separately

charged petitioner with possession of cocaine base with intent to distribute in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). On October 29, 1993, petitioner was

sentenced to 262 months imprisonment in each of the two cases, those sentences to run

consecutively. (CR-93-271-JCC, Dkt. # 40, 43; CR-93-515-JCC, Dkt. # 4). Petitioner

did not file an appeal in either case. On December 12, 2005, petitioner filed the instant

motion for relief under § 2255. The government filed a timely response to petitioner’s

motion on February 8, 2006, and, after receiving single extension of time, petitioner

filed a reply.

DISCUSSION

Petitioner alleges in his § 2255 motion that his sentence was imposed in violation

of his rights under the Sixth, Fifth and Fourteenth Amendments because the indictment

failed to allege that he was a career offender. Petitioner seeks re-sentencing pursuant to

Blakely v. Washington, 124 S.Ct. 2531 (2004)2

 and/or United States v. Booker, 125 S.Ct.

738 (2005).

In response, the government argues first that petitioner’s motion is untimely and

therefore barred from review. In addition, the government argues that petitioner’s

motion must be dismissed because: a) he has neither sought nor received permission

from the Ninth Circuit Court of Appeals to file a successive petition; b) he has failed to

show cause for his failure to raise his claims on direct appeal, and failed to establish

prejudice; and c) his motion violates the rules governing § 2255 proceedings because it

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REPORT AND RECOMMENDATION

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is directed at two different judgments in one motion. For the reasons set forth below, the

Court finds that the government’s position on the timeliness question is correct, and the

Court therefore does not address the government’s alternative arguments.

Motions filed pursuant to 28 U.S.C. § 2255 are governed by the one-year statute

of limitations provided in the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). This one-year statute of limitations begins to run 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.

28 U.S.C. § 2255.

Petitioner does not dispute that he filed the instant § 2255 motion more than one

year after his convictions became final. Rather, he relies upon subsection (3) of this

statute, which is effectively an exception to the general one-year limit set forth in

subsection (1). This exception essentially has two conditions that must be satisfied

before it applies. First, petitioner must show that he filed the § 2255 motion within one

year from the date that the Supreme Court announced any “newly recognized” rights that

are the basis of the motion. Second, petitioner must show that the Supreme Court made

these rights “retroactively applicable to cases on collateral review.” 28 U.S.C. §

2255(3).

//

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REPORT AND RECOMMENDATION

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It is undisputed that the Supreme Court decided Booker less than one year from

the date that petitioner filed the instant § 2255 case. However, the Supreme Court has

been silent as to whether Blakely or Booker apply retroactively. The Ninth Circuit – and

all other circuit courts that have considered the question – has held that neither Blakely

nor Booker apply retroactively to cases on collateral review. See Schardt v. Payne, 414

F.3d 1025 (9th Cir. 2005); United States v. Cruz, 423 F.3d 1119 (9th Cir. 2005). Thus,

petitioner fails to satisfy the second prong of the exception and his § 2255 motion is

therefore untimely.

CONCLUSION

 For the foregoing reasons, petitioner’s motion under 28 U.S.C. § 2255 to vacate,

set aside, or correct his sentence is barred by the applicable statute of limitations and

should be dismissed. A proposed order is attached to this Report and Recommendation.

DATED this 1st day of August, 2006.

AMONICA J. BENTON

United States Magistrate Judge

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