IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, )

Respondent/Plaintiff, )

vs. ) No. 3:00-CR-0468-H(01)

) No. 3:05-CV-2479-H (BH)

CHARLES COREY FRANKLIN, ) ECF

ID # 26057-177, ) Referred to U.S. Magistrate Judge

Movant/Defendant. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation

thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

Movant, an inmate currently incarcerated in the federal prison system, filed this Motion to

Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The respondent is the United

States of America.

On March 15, 2001, movant pled guilty to conspiracy to the six counts levied against him in

the superseding indictment in this case. On June 7, 2001, the Court entered judgment upon movant’s

guilty plea, and sentenced him to a total term of imprisonment of 360 months. Movant did not appeal

or conviction or sentence. 

On December 19, 2005, the Court received the instant motion to vacate filed by movant

pursuant to 28 U.S.C. § 2255. He claims that, under Blakely v. Washington, 542 U.S. 296 (2004) and

United States v. Booker, 543 U.S. 220 (2005), the Court improperly sentenced him by utilizing factors

not submitted to the jury for determination. 

 

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II. SUMMARY DISMISSAL

Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts

provides that “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior

proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct

the clerk to notify the moving party.” 

In this instance, movant merely raises claims under Booker and Blakely. Claims based upon

those cases, however, are not cognizable on collateral review. See United States v. Cabrera, Nos. 3:01-

CR-0374-H, 3:04-CV-2739-H, 2005 WL 1422154, at *1 (N.D. Tex. June 14, 2005) (findings,

conclusions, and recommendation which holds that Booker and Blakely claims are not cognizable in

a § 2255 motion), accepted by unpub. order (N.D. Tex. July 11, 2005). The Booker/Blakely line of cases

do not apply retroactively to cases on collateral review. See United States v. Gentry, 432 F.3d 600, 604-

05 (5th Cir. 2005). Because claims based upon Booker and Blakely are not cognizable on collateral

review, it is clear that movant is entitled to no relief on the claims raised in the instant action. Consequently, this action is subject to summary dismissal. 

III. EVIDENTIARY HEARING

Upon review of the motion to vacate and the files and records of this case, an evidentiary

hearing appears unnecessary. No evidentiary hearing is required, when “the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. In

this instance, the matters reviewed by the Court conclusively show that movant is entitled to no relief.

 

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IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court

summarily DISMISS the instant Motion to Vacate, Set Aside, or Correct Sentence brought pursuant

to 28 U.S.C. § 2255. 

SIGNED this 7th day of November, 2006.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file written

objections to the proposed findings, conclusions, and recommendation within ten days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of

plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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