IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, )

Respondent/Plaintiff, )

vs. ) No. 3:03-CR-0247-H (01)

) No. 3:05-CV-1022-H

SAMBAU MAU, ID # 30776-177, )

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

A. Nature of the Case

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 (government).

B. Procedural History

On September 4, 2003, movant pled guilty to conspiracy to commit theft of government

property. The Court entered judgment upon movant’s guilty plea, and sentenced him to thirty

months imprisonment on September 30, 2004. He did not appeal his conviction or sentence.

On May 18, 2005, the Court received the instant motion filed pursuant to 28 U.S.C. § 2255.

Movant claims that the Court improperly enhanced his sentence in light of Blakely v. Washington,

542 U.S. 296 (2004) and United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). 

 

 Case 3:03-cr-00247-L Document 177 Filed 09/20/05 Page 1 of 3 PageID 433
1

 Because it finds that such claims are not cognizable on collateral review, the Court does not reach the issue of waiver.

The Court notes, however, that movant waived his right to collaterally attack his conviction pursuant to 28 U.S.C. §

2255 on any ground except to challenge the voluntariness of his plea or his waiver. Movant does not challenge the

voluntariness of his plea or his waiver in this action. Thus, his Blakely and Booker claims may also be barred by waiver.

2

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 Blakely and Booker. 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); cf. United States v. Fountain,

Nos. 3:03-CR-329-G(09), 3:05-CV-1224-G, 2005 WL 1502054, at *1 (N.D. Tex. June 24, 2005)

(findings, conclusions, and recommendation which holds that a Booker claim is not cognizable in a

§ 2255 motion), adopted by 2005 WL 1679339 (N.D. Tex. July 18, 2005).

Because claims based upon Blakely and Booker are not cognizable on collateral review, it is

clear that movant is entitled to no relief on the claims raised in the instant action.1 Consequently,

the Court should summarily dismiss this action. 

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

 

 Case 3:03-cr-00247-L Document 177 Filed 09/20/05 Page 2 of 3 PageID 434
3

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. 

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 20th day of September, 2005. 

 ___________________________________

 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

 

 Case 3:03-cr-00247-L Document 177 Filed 09/20/05 Page 3 of 3 PageID 435