Summary
holding that Blakely does not apply retroactively via an analogous petition under 28 U.S.C. § 2255
Summary of this case from Kaua v. FrankOpinion
No. 04-74553.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 22, 2004.
Markus Loren Cook, Florence, CO, petitioner, pro se.
United States of America, no appearance.
On Application for Authorization to File a Second or Successive 28 U.S.C. § 2255 Motion.
Before: KLEINFELD, TASHIMA and GOULD, Circuit Judges.
ORDER
Petitioner has filed an application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court. Petitioner contends that his sentence is unconstitutional under the Supreme Court's recent opinion in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
In our decision in Rees v. Hill, 286 F.3d 1103 (9th Cir. 2002), we determined that, because the Supreme Court had not mandated that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), be applied retroactively on collateral review, Rees could not meet the requirements in 28 U.S.C. § 2244 for obtaining leave to file a second petition for habeas relief based on an alleged violation of Apprendi. Rees at 1104; see also United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002).
Similarly, the Supreme Court has not made Blakely retroactive to cases on collateral review. Petitioner's application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court is therefore denied. See also In re Dean, 375 F.3d 1287 (11th Cir. 2004); Simpson v. United States 376 F.3d 679 (7th Cir. 2004).
No petition for rehearing or motion for reconsideration shall be filed or entertained in this case. See 28 U.S.C. § 2244(b)(3)(E).