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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CHE KEUNG LING, )

)

Petitioner, ) CASE NO. C05-2132-JLR-MJB

) (CR98-220-BJR)

v. )

)

UNITED STATES OF AMERICA, ) REPORT AND RECOMMENDATION

)

Respondent. )

____________________________________)

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner is a federal prisoner who is currently confined at the Taft Correctional Institution in

Taft, 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 HISTORY

On August 15, 2000, petitioner pleaded guilty to one count of trafficking in counterfeit credit

cards and one count of using a counterfeit credit card. (See CR98-220-BJR, Dkt. Nos. 22 and 23.) 

Petitioner thereafter moved to withdraw his guilty plea. (Id., Dkt. No. 40.) On July 9, 2001, the

Honorable Barbara Jacobs Rothstein, United States District Judge, issued an Order denying

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REPORT AND RECOMMENDATION

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petitioner’s motion to withdraw his guilty plea. (Id., Dkt. No. 54.) On October 16, 2001, Judge

Rothstein sentenced petitioner to 110 months imprisonment. (See CR98-220-BJR, Dkt. Nos. 61 and

62.) Judgment was entered in petitioner’s case on October 17, 2001. (Id., Dkt. No. 62.)

Following his sentencing, petitioner filed an appeal in which he challenged both his sentence

and the denial of his motion to withdraw his guilty plea. (See Dkt. No. 1, Ex. C.) The Ninth Circuit

issued a memorandum order affirming this court’s judgment and sentence on November 18, 2002. 

(Id.) On December 13, 2002, the mandate of the Ninth Circuit Court of Appeals was entered on this

court’s docket. (See CR98-220-BJR, Dkt. No. 75.) 

Petitioner next filed a petition for writ of mandamus with the Ninth Circuit. (See Dkt. No. 2 at

6; Dkt. No. 9 at 2.) The Ninth Circuit denied that petition on March 14, 2003. (CR98-220-BJR, Dkt.

No. 76.) Petitioner filed a petition for rehearing en banc, but that petition was denied on July 28,

2003. (See Dkt. No. 2 at 7; Dkt. No. 9 at 2.) 

On December 28, 2005, petitioner filed the instant motion for relief under § 2255. Petitioner

also filed a supplement to his § 2255 motion on January 20, 2006. (Dkt. No. 7.) On February 17,

2006, the government filed a timely response to petitioner’s motion (Dkt. No. 9), and petitioner filed a

reply brief in support of his motion on March 2, 2006 (Dkt. No. 10).

DISCUSSION

Petitioner asserts in his § 2255 motion that his sentence was imposed in violation of his Sixth

Amendment right to be sentenced strictly on the facts admitted by him in his guilty plea. Petitioner

seeks re-sentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). In its response, the

government argues that petitioner’s motion is untimely and therefore barred from review. 

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 – 

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1

 Petitioner appears to argue in his supplement to his § 2255 motion, and in his reply brief, that

Cruz was wrongly decided. Of course, that argument cannot prevail here as the decision of the Ninth

Circuit are binding on this Court. 

REPORT AND RECOMMENDATION

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(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

conviction became final. Rather he relies upon subsection (3), as set forth above, which is effectively

an exception to the general one-year time 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. 

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

petitioner filed the instant § 2255 motion. However, the Supreme Court has been silent as to whether

Booker applies retroactively. The Ninth Circuit – and all other circuit courts that have considered the

question – has held that Booker does not apply retroactively to cases on collateral review. See United

States v. Cruz, 423 F.3d 1119 (9th Cir. 2005).1

 Thus, petitioner fails to satisfy the second prong of the

exception and his § 2255 motion is therefore untimely.

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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 16th day of June, 2006.

AMONICA J. BENTON

United States Magistrate Judge

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