IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, )

)

v. ) 3:00-CR-478-L

) (3:05-CV-0389-L)

GARY JOHN BELLINGER, #24393-077, )

Defendant/Movant. )

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, this case has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his

signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a motion to vacate, set aside, or correct sentence brought by a

federal prisoner pursuant to 28 U.S.C. § 2255.

Statement of the Case: Movant pled guilty pursuant to a plea agreement to mail fraud in

violation of 18 U.S.C. § 1341 (the third count in an eight-count superseding indictment). On

January 6, 2003, the District Court sentenced him to 41 months imprisonment, a three-year term

of supervised release, and restitution in the amount of $2,040,268.35. United States v. Bellinger,

3:00cr478-L (N.D. Tex., Dallas Div.). The remaining counts were dismissed on the

government’s motion. Movant did not appeal. 

On February 24, 2005, Movant filed this § 2255 motion alleging ineffective assistance of

counsel. Specifically he asserts that counsel failed to “properly object” at sentencing to the

 

 Case 3:00-cr-00478-L Document 140 Filed 08/23/05 Page 1 of 6 PageID 103
2

enhancement of his sentence -- i.e., the restitution amount, the twelve point increase in Movant’s

total offense level, and the two-point increase for more than minimal planning -- under Apprendi

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). (See § 2255 Mot. at 2

and 3, and Memorandum in Support at 7-12). He further asserts that counsel was ineffective in

failing to perfect a direct appeal raising the above claims. (Id.).

In response to this court’s order, the government filed a response to which Movant filed a

reply. In his reply, Movant relies for the first time on United States v. Booker, ___ U.S. ___,

125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which extended Blakely to the United States

Sentencing Guidelines. 

Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), establishes a one-year statute of limitations for federal inmates seeking relief under §

2255. See 28 U.S.C. §§ 2255. Movant’s sole explanation for the untimely filing of this § 2255

motion is that the primary cases upon which he relies, Booker and Blakely, were only recently

decided. For the reasons discussed below, the court concludes that Booker does not apply

retroactively to already-final judgments and, therefore, Movant’s § 2255 motion is untimely

under the “AEDPA”.

The Fifth Circuit recently held in the context of a second or successive motion under §

2255 that the United States Supreme Court did not make Booker retroactively applicable to cases

on collateral review. See In re Elwood, 408 F.3d 211, 212-13 (5th Cir. 2005) (per curiam). 

While the Fifth Circuit has not yet addressed the applicability of Booker to a first § 2255 motion,

the circuits that have considered the question have determined that the Booker decision is not

 

 Case 3:00-cr-00478-L Document 140 Filed 08/23/05 Page 2 of 6 PageID 104
3

retroactive to collateral review cases. See Guzman v. United States, 404 F.3d 139, 141-44 (2nd

Cir. 2005), pet. for cert. filed, No. 05-5187 (Jul. 5, 2005); Humphress v. United States, 398 F.3d

855, 860-63 (6th Cir. 2005), pet . for cert. filed No. 05-5130 (May 17, 2005); Varela v. United

States, 400 F.3d 864, 866-868 (11th Cir. 2005); McReynolds v. United States, 397 F.3d 479,

480-81 (7th Cir), cert. denied, 125 S. Ct. 2559 (2005). Therefore, in light of the Fifth Circuit’s

decision in In re Elwood and the persuasive authority of the unanimous decisions of the other

circuits that have considered the issue, the District Court should find that Booker is not

retroactively applicable to an initial § 2255 motion, such as the one at issue in this case.

Under the AEDPA, the one-year period is calculated from the latest of either (1) the date

on which the judgment of conviction became final; (2) the date on which an impediment to filing

a § 2255 motion created by governmental action in violation of the Constitution or laws of the

United States is removed, if the movant was prevented from filing by such governmental action;

(3) the date on which the Supreme Court initially recognizes a new constitutional right, 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 became known

or could have become known through the exercise of due diligence. See id. § 2255.

Movant has alleged no impediment created by government action under subparagraph (B)

that prevented him from filing this § 2255 motion. While he bases his § 2255 motion on a newly

recognized constitutional right under subparagraph (C) -- i.e., the decisions in Booker and

Blakely -- that right, as noted above, has not been made retroactively applicable to cases on

collateral review. With regard to subparagraph (D), the Court determines that the facts

supporting the claims raised in the instant § 2255 motion became known or could have become

 

 Case 3:00-cr-00478-L Document 140 Filed 08/23/05 Page 3 of 6 PageID 105
1 Although Movant was sentenced on January 6, 2003, the judgment of conviction

was not filed and entered on the docket until January 9, 2003. The court has relied on the latter

date in calculating the ten-day period for appeal purposes under Fed. R. App. P. 4(b)(1)(A). 

2 Pursuant to United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (citing

Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998), a § 2255 motion is deemed filed for

determining application of the AEDPA when the prisoner tenders it to prison officials for

mailing. Here Movant failed to include the date on which he signed his § 2255 motion. (See §

2255 Mot. at 10). Therefore, absent additional information, the court is bound by the filing date

of February 24, 2005.

4

known prior to the date Movant’s judgment of conviction became final. Thus, the court will

calculate the one-year statute of limitations from the date Movant’s conviction became final at

the conclusion of direct review or upon the expiration of the time for seeking such review. See

28 U.S.C. § 2255.

Movant’s conviction became final on January 24, 2003, the last day on which he could

have appealed to the Fifth Circuit Court of Appeals the judgment of conviction entered on

January 9, 2003. See Fed. R. App. 4(b)(1)(A) (“In a criminal case, a defendant’s notice of

appeal must be filed in the district court within 10 days after the later of (i) the entry of either the

judgment or the order being appealed; or (ii) the filing of the government’s notice of appeal.”).1

The one-year period began to run on January 25, 2003, and expired on January 24, 2004. 

Movant did not file this § 2255 motion until February 24, 2005, more than one-year after the

expiration of the one-year period.2 Therefore, Movant’s § 2255 motion is clearly untimely.

Insofar as Movant requests equitable tolling of the limitation period, his request should

be denied. Neither the § 2255 motion nor the response to this court’s order to show cause

presents “rare and exceptional circumstances” warranting equitable tolling, United States v.

Riggs, 314 F.3d 796, 799 (5th Cir. 2002), and that Movant diligently pursued his rights, United

 

 Case 3:00-cr-00478-L Document 140 Filed 08/23/05 Page 4 of 6 PageID 106
3 The magistrate judge expresses no opinion on the merits of any § 2255 motion

which may be subsequently filed by Movant in the event that at some time in the future Booker

is found to be retroactively applicable to collateral proceedings. However, it is noted that in

Dodd v. United States, --- U.S. ----, 125 S. Ct. 2478, --- L.Ed.2d---- (2005), the United States

Supreme Court held that the one year limitations period runs from the date on which the

Supreme Court initially recognized the right asserted rather than the date on which it was first

recognized as being applicable retroactively to cases on collateral review.

5

States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). Nor does the record discloses any basis

for equitable tolling. Insofar as Movant asserts that he could not previously file claims based on

Booker, because that case was not decided until January 12, 2005, the court finds his argument

unavailing. As discussed above, this Court concludes that Booker is not retroactive to judgments

(such as Movant’s) that were already final before that opinion's release. The court further finds

that Movant has failed to demonstrate that he relied to his detriment on any affirmative, but

incorrect representation by the court, or that any party obstructed his attempts to obtain habeas

relief. The court therefore concludes that Movant has not shown, as it is his burden to do, that he

is entitled to equitable tolling of the AEDPA's limitation period. The Court will accordingly

dismiss his claims with prejudice as untimely.3

 

 Case 3:00-cr-00478-L Document 140 Filed 08/23/05 Page 5 of 6 PageID 107
6

RECOMMENDATION:

For the foregoing reasons it is recommended that the District Court dismiss the motion to

vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 as time barred.

A copy of this order will be mailed to Movant.

Signed August 23, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)

(en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district judge

of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain

error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law

accepted by the district court.

 

 Case 3:00-cr-00478-L Document 140 Filed 08/23/05 Page 6 of 6 PageID 108