IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOETTA DAVIS, )

)

Petitioner, )

)

vs. ) NO. 2:06-CV-62

) (2:00-CR-66)

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Motion Pursuant to 28 USC

2255, filed by Petitioner, Joetta Davis, on February 16, 2006. For

the reasons set forth below, this motion is DENIED. The Clerk is

ORDERED to DISMISS this case. The Clerk is FURTHER ORDERED to

distribute a copy of this order to Petitioner, Prisoner No. 06291-027,

at the Pembroke Station in Banbury, Connecticut, or to such other more

recent address that may be on file for Petitioner.

BACKGROUND

On April 25, 2001, Petitioner, Joetta Davis, pled guilty to

distributing crack cocaine, in violation of Title 21 U.S.C. section

841(a)(1). On March 22, 2002, Petitioner was sentenced to a 78-month

term of imprisonment. Petitioner did not directly appeal her sentence

to the Seventh Circuit Court of Appeals.

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1Actually, Petitioner’s motion was filed more than 1 year from

the date Booker was decided. However, Petitioner contends that she is

excused from filing within that 1-year period for two reasons. First,

relying upon section 2255, paragraph 6(2), Petitioner states that her

filing is timely due to the Bureau of Prisons impeding access to her

legal materials and case file. Second, relying upon section 2255,

paragraph 6(4), Plaintiff claims that her former attorney promised to

file the section 2255 motion and then failed to do so. Both of these

reasons, Petitioner states, equitably toll the limitations period. 

Since the issue of timeliness is not dispositive of the instant

motion, the facts underlying Petitioner's claim for equitable tolling

are not material. Therefore, for purposes here and to save the

expenditure of an unnecessary hearing, the Court will assume that the

instant motion was filed within one year of Booker.

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In the instant motion, she seeks to collaterally attack her

sentence with the retroactive application of the United States Supreme

Court’s January 12, 2005, decision in United States v. Booker, 543

U.S. 220 (2005). Petitioner argues that because she filed her section

2255 petition within one year from the January 12, 2005, decision in

Booker, she can rely on the holding in Dodd v. United States, 545 U.S.

353 (2005), to render her filing timely.1

DISCUSSION

Under the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), a motion under section 2255 must be filed within one year

of four possible dates. Relevant to this case, a motion under section

2255 must be filed within one year from "the date on which the right

asserted was initially recognized by the Supreme Court . . . and made

retroactively applicable to cases on collateral review." 28 U.S.C.

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§ 2255, ¶6(3). The Court in Dodd explained that the language in

paragraph 6(3), "identifies one date and one date only as the date

from which the one year limitation period runs: ‘the date on which the

right asserted was initially recognized by the Supreme Court.’" Dodd,

545 U.S. at 356. Moreover, paragraph 6(3) limits its application to

rights made retroactively applicable on collateral review. Id.

Here, Petitioner attempts to rely on the Supreme Court's Booker

decision to support her instant motion being timely. To successfully

do this, she must have filed her section 2255 petition within one year

of the Booker decision being handed down and Booker must be held

retroactively applicable on collateral review. As indicated above,

the Court finds, for purposes here, that Petitioner filed her motion

within one year of Booker being handed down. However, the Seventh

Circuit Court of Appeals has held that Booker is not to be applied

retroactively. McReynolds v. United States, 397 F.3d 479 (7th Cir.

2005). Because Booker is not applied retroactively on collateral

review, Petitioner cannot rely on Booker to make her motion timely

under paragraph 6(3).

CONCLUSION

For the reasons set forth above, this motion is DENIED. The

Clerk is ORDERED to DISMISS this case. The Clerk is FURTHER ORDERED

to distribute a copy of this order to Petitioner, Prisoner No. 06291-

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027, at the Pembroke Station in Banbury, Connecticut, or to such other

more recent address that may be on file for Petitioner.

DATED: September 28, 2006 /s/RUDY LOZANO, Judge

United States District Court

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