UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Craig Clark

v. Civil No. 05-cv-415-JD

United States of America

O R D E R

Petitioner has filed a motion pursuant to 28 U.S.C. § 2255

seeking to vacate his sentence. The petitioner claims that as a

result of the decision in United States v. Booker, 543 U.S. 220

(2005), it was error for the court to make a two-level upward

adjustment for obstruction of justice pursuant to U.S.S.G. §

3C1.1 based on the court’s finding by a preponderance of the

evidence that the petitioner obstructed justice. In addition,

the court declined to give the petitioner a three-level downward

adjustment for acceptance of responsibility pursuant to U.S.S.G.

3E1.1. As a result, the petitioner’s total offense level was 36

(188 to 235 months) instead of 31 (108 to 135 months). The

petitioner was sentenced to 223 months. 

The following is a chronological outline of the history of

this case: 

June 1, 1994 - Petitioner waives indictment and pleads

guilty to a two count information charging him with conspiracy to

interfere with commerce by threats of violence (count one) and

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interference with commerce by threats of violence (count two).

September 22, 1994 - Petitioner sentenced by Judge Barbadoro

to 188 months on each count, and supervised release for three

years on each count, to run concurrently.

September 30, 1994 - Petitioner files a notice of appeal

contending that the government breached its plea agreement and

the court used the preponderance of the evidence standard instead

of the reasonable doubt standard in determining whether he

obstructed justice.

May 30, 1995 - The United States Court of Appeals for the

First Circuit remanded the case for resentencing before a

different judge because the government breached its plea

agreement. The appeals court did not reach the other issue

raised by the petitioner on appeal. United States v. Clark, 55

F.3d 9 (1st Cir. 1995).

November 13, 1995 - Petitioner is sentenced by Judge

DiClerico to 223 months on each count, and supervised release of

three years on each count, to run concurrently. 

November 28, 1995 - Petitioner files a notice of appeal. 

The petitioner claimed that the more severe sentence which he

received on resentencing violated his right to due process; that

in finding the petitioner obstructed justice, the court should

not have used the preponderance of the evidence standard; and

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that his testimony was not viewed in the light most favorable to

him. 

May 30, 1996 - The United States Court of Appeals for the

First Circuit affirmed the sentences. United States v. Clark, 84

F.3d 506 (1st Cir. 1996).

October 7, 1996 - Certiorari denied by the United States

Supreme Court. Clark v. United States, 519 U.S. 909 (1996).

Motions filed pursuant to 28 U.S.C. § 2255 are subject to a

one year statute of limitations that in this case began to run on

the date on which the judgment of conviction became final. A

claim based on section 2255 may be maintained more than one year

after the date on which the petitioner’s conviction became final

if (1) the petitioner was prevented from making the motion

earlier by an illegal governmental action; (2) the Supreme Court

recognized the right on which the petition is based after

petitioner’s conviction became final and the right is made

retroactively applicable to cases on collateral review; or (3)

petitioner could not reasonably have discovered the facts on

which his claim is based until after his conviction became final. 

In this case, the petitioner’s conviction became final on October

7, 1996, the date on which the United States Supreme Court denied

his petition for certiorari. None of the above-mentioned

exceptions apply in this case. 

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The petitioner suggests that the doctrine of equitable

tolling should apply in this case to permit him to have the

issues raised in this petition addressed. However, the court

finds that there are no exceptional circumstances which would

permit the application of that doctrine. Even if there were such

circumstances, that would not be of any help to the petitioner

because Booker has not been made retroactive by the United States

Supreme Court to cases on collateral review. Therefore, the

provisions of section 2255 expressly prevent the consideration of

this petition by the court, and the doctrine of equitable tolling

cannot be applied in contravention of such express statutory

provisions. The court also notes that the United States Court of

Appeals for the First Circuit has found that Booker is not

retroactive. United States v. Frazer, 401 F.3d 9, 10-11 (1st

Cir. 2005). 

Under the foregoing circumstances, the court rules that the

petition must be dismissed.

Petition dismissed.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

December 6, 2005

cc: Craig J. Clark, pro se

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