Opinion
Case No. 2:04CV1012 DS.
March 11, 2005
MEMORANDUM DECISION
I. INTRODUCTION
Pro se petitioner Steven Jaffe has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The ground on which he claims that he is being held in violation of the constitution of the United States is that his Sixth Amendment right to a jury trial and his Fifth Amendment rights were violated when his sentence was enhanced by a judge and not a jury.
Petitioner states that his sentence was enhanced eight points (four points for loss exceeding $10,000, two points for ten to fifty victims, and two points for using any means of identification) by the District Court, which made its own findings based on a preponderance of the evidence. Petitioner argues that this is in violation of the Fifth and Sixth Amendments, which require such facts to be charged in an indictment and found by a jury beyond reasonable doubt. In support of this motion, Petitioner cites Blakely v. Washington, 124 S.Ct. 2531 (2004). Subsequent to Jaffe's filing this motion, the Supreme Court issued its decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___, 2005 WL 50108 (Jan. 12, 2005), holding that the principles enunciated in Blakely apply to the United States Sentencing Guidelines, making their mandatory enforcement unconstitutional. Defendant was convicted on November 4, 2003, and Blakely was not decided until June of 2004. Defendant filed this motion on November 1, 2004, stating that "[a] defendant cannot waive rights that neither he nor the sentencing court knew he had."
II. RETROACTIVE APPLICATION OF BLAKELY AND BOOKER TO INITIAL § 2255 MOTIONS
Jaffe's petition is timely in that he filed it within the one-year limitation period set forth in § 2255. The only issue we have to consider is whether Blakely/Booker apply retroactively to cases on collateral review. The Supreme Court has not expressly declared Blakely or Booker to be retroactive to cases on collateral review. See Booker, ___ U.S. ___, at ___, 125 S.Ct. at 769 (Op, by Breyer, J.) (expressly extended holding "to all cases on direct review").
A number of circuit courts, including the Tenth Circuit have rejected all attempts to apply retroactively in § 2255 proceedings the constitutional rights first recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and subsequently extended in both Blakely and Booker. See United States v. Leonard, 2005 WL 139183 (10th Cir. Jan. 24, 2005) ( Blakely and Booker are new rules of criminal procedure that apply "retroactively only to cases pending on direct review or cases that are not yet final."); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.) ( Apprendi does not retroactively apply to initial § 2255 motions), cert. denied, 537 U.S. 961, 123 S.Ct. 388, 154 L.Ed.2d 315 (2002); McReynolds v. United States, ___ F.3d ___, 2005 WL 237642 at *2 (7th Cir. Feb. 2, 2005) ( Booker will not be applied retroactively to cases in which the conviction and sentences became final prior to Booker being issued).
In order for a new rule announced by the Supreme Court to apply retroactively to cases on collateral review, the petitioner must show that either the new rule is substantive rather than procedural, or that the new rule is a "watershed rule of criminal procedure." Schriro v. Summerlin, ___ U.S. ___, ___, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442 (2004) (holding Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which extended application of Apprenidi to facts increasing a defendant's sentence from life imprisonment to death, is not retroactive to cases on collateral review). The Seventh Circuit in McReynolds argued persuasively that applying the Summerlin rationale to Booker leads to the conclusion that Booker is neither a substantive rule, nor a watershed rule, and that therefore it should not apply retroactively:
Ring held, in reliance on Apprendi, that a defendant is entitled to a jury trial on all aggravating factors that may lead to the imposition of capital punishment. In Summerlin the Court concluded that Ring cannot be treated as a new substantive rule — which is to say, a rule that "alters the range of conduct or the class of persons that the law punishes." ___ U.S. at ___, 124 S.Ct. at 2523. It observed that " Ring altered the range of permissible methods for determining whether a defendant's conduct is punishable [in a particular way], requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decision-making authority in this fashion are prototypical procedural rules". Ibid. That is no less true of Booker. . . . No conduct that was forbidden before Booker is permitted today; no maximum available sentence has been reduced.
The remedial portion of Booker drives the point home. . . . No primary conduct has been made lawful, and none of the many factors that affect sentences under the Sentencing Guidelines has been declared invalid. Consequently Booker, like Apprendi and Ring, must be treated as a procedural decision for purposes of retroactivity analysis.
. . . Booker does not in the end move any decision from judge to jury, or change the burden of persuasion. The remedial portion of Booker held that decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as the guideline system has some flexibility in application. As a practical matter, then, petitioners' sentences would be determined in the same way if they were sentenced today; the only change would be the degree of flexibility judges would enjoy in applying the guideline system. That is not a "watershed" change that fundamentally improves the accuracy of the criminal process. (citation omitted)McReynolds, 2005 WL 237642 at *1-*2. Although Blakely and Booker do announce new rules of criminal procedure, they are not "watershed rules of criminal procedure" as required by Summerlin and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) to make them retroactive for habeas petitions.
The Tenth Circuit has clearly indicated that Blakely and Booker will not apply retroactively to cases on collateral review. In the Mora case cited above, the Tenth circuit held that Apprendi merely clarified and extended the scope of the previously existing right to have all convictions supported by proof beyond a reasonable doubt, and that it was not a watershed decision and hence was not retroactively applicable to initial habeas petitions. United States v. Mora, 293 F.3d at 1219. In a very recent Tenth Circuit Court opinion, the court cited Mora for the proposition that ". . . even if Blakely does apply to the federal guidelines [which, under Booker, it now does], it will not apply retroactively to cases on collateral review." United States v. Price III, 118 Fed.Appx. 465, 2004 WL 2905381 (10th Cir. Dec. 16, 2004).
III. CONCLUSION
For the foregoing reasons, Petitioner Jaffe's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED.