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Movant filed a letter on March 7, 2005 which this court construed as a motion to vacate,

set aside, and correct sentence under 28 U.S.C. § 2255. The letter, which bears her signature, is

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LURLINE HOOPER, §

BOP No 31149-177 , §

Defendant-Movant, §

§

v. § No. 3:03-CR-0173-D

§(No. 3:05-CV-0521-D)

UNITED STATES OF AMERICA, §

Plaintiff-Respondent. §

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, the subject cause has previously 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 Case: This is a motion to set aside, vacate or correct sentence filed pursuant to 28

U.S.C. § 2255.

Parties: Lurline Hooper ("Hooper" or “Movant”) is a federal prisoner currently confined at

FMC Carswell in Forth Worth, Texas. Respondent is the United States of America.

Statement of the Case: Hooper pled guilty to possession of firearm by a felon in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)(1), on November 14, 2003. On February 13, 2004, she was

sentenced to 51 months in the penitentiary and three years of supervised release. Movant did not

appeal her conviction.

Hooper filed the instant habeas petition on March 2, 2005.1

 Respondent filed its response

 

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dated March 2, 2005. She is presumed to have placed her letter in the prison mailbox on the day

which her letter was dated. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir.1998)(per curiam).

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on July 11, 2005. Movant did not file a reply.

Findings and Conclusions: Movant contends that her sentence violated Blakely v. 

Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004) and United States v. Booker, __ U.S. __, 125

S.Ct. 738 (2005). (See Ground Two). She further alleges that her rights under the Fourth and

Fifth Amendments (See Grounds One and Three) were violated. In response the government

contends that her claims are time-barred and further that her Booker claim is not a cognizable

ground for relief under § 2255.

The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-year statute

of limitations for federal inmates seeking relief under § 2255. See 28 U.S.C. §2255. Section

2255 provides in pertinent part as follows:

A 1-year period of limitation shall apply to a motion under this

section. The limitation period shall 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. 

Movant's judgment of conviction was entered on the docket on February 13, 2004. Her

conviction, therefore, became final on February 23, 2004, the last day on which she could have

 

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appealed to the Fifth Circuit Court of Appeals from the judgment of conviction. See Fed. R.

App. P. 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.") and Rule 26(a)(2). The

one-year period began to run on February 24, 2004, the day after the conviction became final,

see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir.1998), and expired on February 24, 2005. 

Movant did not file this §2255 motion until March 2, 2005, six days after the expiration of the

one-year period. Hooper has not alleged that she is entitled to equitable tolling. Therefore,

Hooper’s § 2255 motion was untimely filed and should be dismissed.

Alternatively, even if her motion is not dismissed on limitations, she is not entitled to

relief. As a matter of law, Hooper’s guilty plea waived her claims pursuant to her first and third

grounds for relief. See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608 (1973). 

In addition to this waiver by operation of law, Movant expressly waived any right to seek habeas

corpus relief as part of the plea agreement pursuant to which she pled guilty to count one of the

indictment. (See Plea Agreement, ¶ 11, cited in the Government’s Resp. at page 2). Her waiver

was knowingly and understandably entered and is enforceable. See, e.g., United States v. White,

307 F.3d 336, 339 (5th Cir. 2002). Therefore she is prohibited from seeking relief pursuant to §

2255.

Further, although the Supreme Court’s decision in United States v. Booker, __ U.S. __,

125 S.Ct. 738 (2005), held that the United States Sentencing Guidelines were advisory rather

than to be mandatorily applied, the Court made clear that the holdings in Booker applied only to

cases on direct review. Id. at 769. Therefore, Hooper cannot seek relief in § 2255 proceedings

 

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based on the Booker decision. King v. Jeter, 4:04-CV-0600-D, 2005 WL 195446 (N.D. Tex. 

Jan. 27, 2005).

RECOMMENDATION:

Hooper has failed to show that she is entitled to relief pursuant to 28 U.S.C. § 2255. It is

therefore recommended that the motion be dismissed as time-barred or in the alternative that

relief be denied.

The Clerk will mail a copy of this recommendation to Movant and to counsel for

Respondent.

SIGNED this 9th day of August, 2005.

 

_________________________

 Wm. F. Sanderson Jr.

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 (10) 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 (10) day period may bar a de novo determination by the

district judge of any finding of fact and 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. 

 

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