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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No: 3:01cr83/LAC

3:05cv130/LAC/MD

KARL BETTERTON

ORDER and

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s motion to vacate, set aside,

or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 308), motion to proceed in

forma pauperis (doc. 309) and motion for appointment of counsel. (Doc. 310).

Defendant’s motion to proceed in forma pauperis is denied as moot as no filing fee

is required for motions pursuant to 28 U.S.C. § 2255. Defendant’s motion for

appointment of counsel is also denied, as there is no right to counsel in collateral

proceeding. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115

L.Ed.2d 640 (1991); Pennsylvania v. Finley, 481 U.S. 551, 554, 107 S.Ct. 1990, 1993,

95 L.Ed.2d 539 (1987); Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993). In

addition, the motion is subject to summary dismissal. Rule 4(b) of the Rules

Governing Section 2255 Proceedings provides in part that “[i]f it plainly appears

from the face of the motion and any annexed exhibits and the prior proceedings in

the case that the movant is not entitled to relief in the district court, the judge shall

make an order for its summary dismissal and cause the movant to be notified.” After

a review of the record, it is the opinion of the undersigned that the motion is

untimely and that it should be summarily dismissed.

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Case No: 3:01cr83/LAC; 3:05cv130/LAC/MD

Defendant pleaded guilty to conspiracy to possess with intent to distribute

methamphetamine on November 27, 2001 and was sentenced to a term of 328

months imprisonment. He did not appeal, and his sentence was subsequently

reduced to 164 months pursuant to the government’s Rule 35 motion on October 17,

2002. (Doc. 249). Nothing further was filed by or with respect to this defendant until

the instant motions were filed. In his § 2255 motion defendant essentially contends

that he is entitled to have his sentence vacated or set aside based on the recent

Supreme Court decision in United States v. Booker, 125 S.Ct. 738, 2005 WL 50108

(2005).

 Title 28 U.S.C. § 2255 imposes a one year time limitation on the filing of

motions under this section. The one year period of time runs 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

petitioner 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.

28 U.S.C. §2255. Defendant’s motion is therefore facially untimely. 

As noted above, defendant maintains in his grounds for argument that he is

entitle to relief based on United States v. Booker, supra, because he received

various guidelines sentence adjustments without a jury determination of the facts

underlying these adjustments. If the right asserted by defendant, the right to have

a jury determine all facts legally essential to his sentence even though he entered

a guilty plea, was newly recognized by the Supreme Court in Booker, and made

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1

Blakely v. Washington, ____ U.S. ____, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Case No: 3:01cr83/LAC; 3:05cv130/LAC/MD

retroactively applicable to cases on collateral review, the one year statute of

limitation would run from the date of the Booker decision. However, this is not the

case.

In the seminal case of Apprendi v. New Jersey, the Supreme Court held that,

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120

S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). See also Ring v. Arizona, 536 U.S. 584,

589, 122 S.Ct. 2428, 2432, 153 L.Ed.2d 556 (2002) (concluding under Apprendi that

“[c]apital defendants . . . are entitled to a jury determination of any fact on which the

legislature conditions an increase in their maximum punishment.”). 

As clarified in Blakely1:

the “statutory maximum” for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected

in the jury verdict or admitted by the defendant. See Ring, supra, at

602, 122 S.Ct. 2428 (“‘the maximum he would receive if punished

according to the facts reflected in the jury verdict alone’” (quoting

Apprendi, supra, at 483, 120 S.Ct. 2348)) . . . . In other words, the

relevant “statuory maximum” is not the maximum sentence a judge

may impose after finding additional facts, but the maximum he may

impose without any additional findings.

124 S.Ct. at 2537-38 (emphasis in original, some citations omitted); see also In re

Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (quoting Blakely). 

In United States v. Booker, 125 S.Ct. 738, 2005 WL 50108 (2005), the Supreme

Court extended its holding in Blakely to the Sentencing Guidelines, holding that the

mandatory nature of the federal guidelines rendered them incompatible with the

Sixth Amendment’s guarantee to the right to a jury trial. This does not mean,

however, that Booker can be applied to cases in which the conviction is final, a fact

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which is crucial to the court’s consideration of the instant motion. Both language

within Booker, discussed infra, and Supreme Court precedent indicate otherwise.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) the

Supreme Court held that the Sixth Amendment’s guarantee of the right to a jury trial

applied to the states. In DeStephano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20

L.Ed.2d 1308 (1968) the Court held that Duncan would not be given retroactive

application - that it applied only to those cases that were not final at the time it was

decided, and that it did not apply to cases on collateral attack. The Court reasoned

that the right to a jury trial was fundamental to our system of justice, but that a trial

without a jury would not necessarily result in an inaccurate verdict. Therefore, it

would not be necessary to grant a new trial to every person convicted without a jury.

In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) the

Supreme Court held that only a jury, not a judge, could make findings on the

aggravating factors necessary to invoke the death penalty. In Schriro v. Summerlin,

__ U.S. __, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) the Court held that Ring applied

only to those cases that were not final at the time it was decided, and that it did not

apply to cases on collateral attack. The Court reasoned that the rule announced in

Ring was a procedural rule, not a substantive one, because it did not define an

element of a crime. Rather, it determined the manner in which fact finding is done.

The Schriro Court relied on DeStephano, supra, noting that “[i]f . . . a trial held

entirely without a jury was not impermissibly inaccurate, it is hard to see how a trial

in which a judge finds only aggravating factors could be.” 124 S.Ct. at 2526.

This is instructive on the application of Booker. The Booker Court expressly

noted that its holding was to be applied retroactively to “all cases ... pending on

direct review or not yet final.” Booker at *29. It did not announce that the new rule

would apply retroactively for cases on collateral attack, such as this one. This

reasoning necessarily follows from DeStephano and Schriro. In those cases the

Court held that it was not impermissibly inaccurate to conduct a criminal trial

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Case No: 3:01cr83/LAC; 3:05cv130/LAC/MD

entirely without a jury, or for a judge alone to find aggravating factors necessary to

trigger a death sentence. Based on those holdings, it is difficult to conclude that a

hearing in which a judge finds only aggravating factors that result in an increased

sentence could be impermissibly inaccurate. See Schriro, 124 S.Ct. at 2526.

Moreover, the Booker Court cited prior precedent with approval, stating that

“[T]he constitutional safeguards that figure in our analysis concern not the identity

of the elements defining criminal liability but only the required procedures for

finding the facts that determine the maximum permissible punishment.” Booker,

2005 WL 50108 at *14 (citations omitted). The significance of this is that unlike

substantive rules, new rules of procedure generally are not retroactive. Schriro v.

Summerlin, __ U.S. __, 124 S.Ct. 2519, 2523, 2526, 159 L.Ed.2d 442 (2004) (“[I]t does

not follow that, when a criminal defendant has had a full trial and one round of

appeals in which the [prosecution] faithfully applied the Constitution as we

understood it at the time, he may nevertheless continue to litigate his claims

indefinitely in hopes that we will one day have a change of heart.”). 

Finally, the Eleventh Circuit has concluded that neither Booker nor Blakely

applies retroactively to cases on collateral review. Varela v. United States, 400 F.3d

864 (11th Cir. 2005); see also In re Anderson, 396 F.3d 1336 (11th Cir. 2005) (holding

that only the Supreme Court can make a new rule retroactive on collateral review,

and that it must do so explicitly). Therefore, for the purposes of the instant motion,

the applicable limitations period was not started anew when Booker was decided.

Since Booker’s effect on sentencing guidelines cases is not retroactive on collateral

review, it is not applicable to this § 2255 motion. Furthermore, defendant’s motion

does not fall within any of the other exceptions to the one year time limitation and

it must therefore be dismissed as untimely. 

Accordingly, it is ORDERED:

Defendant’s motion to proceed in forma pauperis (doc. 309) is denied as moot.

Defendant’s motion for appointment of counsel (doc. 310) is denied.

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And it is respectfully RECOMMENDED: 

The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §

2255 (doc. 308) be summarily DISMISSED as untimely. 

At Pensacola, Florida, this 15

th day of April, 2005.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten

days after being served a copy thereof. A copy of objections shall be served upon all other

parties. Failure to object may limit the scope of appellate review of factual findings. See 28

U.S.C. § 636; Local Rule 27(B); United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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