Opinion
No. EP-05-CA-212-DB, EP-04-CR-250-DB.
August 4, 2005
MEMORANDUM ORDER AND OPINION DISMISSING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Miguel Guerrero-Gonzalez' ("Guerrero") Motion to Vacate, Set Aside or Correct Sentence ("Motion to Vacate") [Docket no. 29] pursuant to 28 U.S.C. § 2255, filed on June 1, 2005. After review, the Court finds that Guerrero is clearly not entitled to relief regarding his claim. Accordingly, it concludes that his Motion to Vacate should be denied and this matter summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will additionally deny Guerrero a Certificate of Appealability.
I. BACKGROUND A. Criminal Cause No. EP-04-CR-250-DB
On February 11, 2004, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Guerrero, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government duly filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), due to Guerrero's prior aggravated felony conviction. Guerrero, deciding to forego trial, pleaded guilty to the Indictment on March 22, 2004. The Court accepted the plea on April 7, 2004 and set the matter for sentencing. The Court entered Judgment on May 21, 2004, sentencing Guerrero to a 57-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Guerrero to pay a $100 special assessment. Guerrero did not appeal.
B. Guerrero's Motion to Vacate pursuant to 28 U.S.C. § 2255
Pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972), the Court has liberally read Guerrero's Motion to Vacate. It understands him to argue that his sentence violated the holding of Blakely v. Washington, 542 U.S. 296 (2004), as extended to federal sentencing in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005) (" Booker").
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 1592 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. See Withrow v. Williams, 507 U.S. 680 (1993). It is also well settled that a collateral challenge may not take the place of a direct appeal. If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
III. BOOKER'S NON-RETROACTIVITY
For the reasons set forth below, the Court finds that Guerrero is not entitled to relief under Booker because that rule does not apply retroactively to his-already final judgement.
A. Booker's holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised the provision of the federal sentencing statute making it mandatory for district courts to apply the Sentencing Guidelines. While the district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Retroactivity of new rules announced by the Supreme Court of the United States
See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).
Booker, ___ U.S. at ___, 125 S. Ct. at 748.
See Booker, ___ U.S. at ___, 125 S. Ct. at 748; see also 18 U.S.C. § 3553(b)(1).
See Booker, ___ U.S. at ___, 125 S. Ct. at 757; see also 18 U.S.C. § 3553(a).
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final.
Schriro v. Sum merlin, 542 U.S. 348, ___, 124 S. Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2522.
New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Id.
Id.
Id. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively, because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow. C. Booker represents a new procedural rule that is not retroactive to cases on collateral review.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id.
Id. (internal quotation omitted).
Id. (internal quotation omitted).
Id.
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although "the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart."
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; see Guzman, ___ F. 3d at ___, 2005 WL 803214, at *1, 2005 U.S. App. LEXIS 5700, at *3; Price, 400 F.3d at 845; Humphress v. United States, 398 F.3d at 856; Varela, 400 F.3d at 868; McReynolds, 397 F.3d at 481.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2526.
In sum, this Court, in keeping with every circuit court of appeals to decide the issue, concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, petitioners whose judgments that became final before January 12, 2005 may not claim relief pursuant to Booker.
See Lloyd v. United States, No. 04-cv-03687, ___ F.3d ___, ___, 2005 WL 1155220, at *6, 2005 U.S. App. LEXIS 8699, at *19 (3rd Cir. May 17, 2005) (holding that Booker does not apply retroactively); Guzman v. United States, No. 03-2446, ___ F. 3d ___, ___, 2005 WL 803214, *1, 2005 U.S. App. LEXIS 5700, *3 (2d. Cir. Apr. 8, 2005) (holding that Booker is not retroactive and therefore does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
Here, because Guerrero did not appeal, Judgment became final on May 31, 2004, ten days after entry and approximately six months before Booker's release. As Booker provides Guerrero with no legal basis for relief, the Court concludes that it should deny his claim with prejudice.
IV. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253 (c)(2); Miller-El v. Cock rell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484, 120 S. Ct. at 1604 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Guerrero's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claim.
VII. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Miguel Guerrero-Gonzalez' Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Miguel Guerrero-Gonzalez' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on June 1, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Miguel Guerrero-Gonzalez is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order dismissing, with prejudice, Petitioner Miguel Guerrero-Gonzalez' Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on June 1, 2005. The Court further denied Petitioner a Certificate of Appealability regarding his claim. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly, IT IS ORDERED that Petitioner Miguel Guerrero-Gonzalez' Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED AND THIS ACTION IS DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Petitioner is DENIED a CERTIFICATE OF APPEALABILITY. IT IS ALSO FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.
The Clerk shall close this case.