Opinion
A03-095 CR (JWS).
May 2, 2005
REPORT AND RECOMMENDATION RE: DEFENDANT'S PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 (Docket No. 44)
Defendant argues that his sentence was imposed in violation ofBlakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004) andUnited States v. Ameline, 376 F.3d 967 (9th Cir. 2004). Defendant submits that Blakely and Ameline apply retroactively to prisoners who are eligible to file a timely habeas petition subsequent to the Blakely ruling. Defendant cites Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 1076 (1989), for the proposition that a new rule should be applied retroactively if it will "properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction." Defendant argues that his sentence was erroneously given a two level enhancement for possession of a firearm. In his reply at Docket 48, Defendant further argues that United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005) applies retroactively to this case.
The government has opposed the petition at Docket 45. The government argues that the petition should be denied "because he waived the right to collaterally attack his conviction and sentence in the plea agreement, his claims are procedurally defaulted because he never raised this issue on direct appeal, and his claims otherwise lack substantive merit." Id. at 1.
Based upon the foregoing, this Court now submits its Report and Recommendation.
FACTUAL BACKGROUND
On July 17, 2003, a plea agreement between the parties was filed. Docket 45 at 2. Pursuant to the agreement, Defendant agreed to waive his rights to appeal or collaterally attack his conviction and sentence with two exceptions. Docket 45, Exhibit A at 5-6. The exceptions to the collateral attack waiver include any challenge to his conviction or sentence alleging ineffective assistance of counsel, and a challenge to the voluntariness of his guilty plea. Id. at 6. The government agreed not to prosecute the defendant for any other offenses arising out of the subject of the investigation, not to seek any upward sentencing departures, and to recommend a three-level downward adjustment for acceptance of responsibility. Id. at 9-10. The plea agreement estimated that Defendant had a base offense level of 26, was subject to a two-level firearm enhancement, and faced a sentence of between 57-71 months under the United States Sentencing Guidelines. Id. at 11-12.The Court accepted Defendant's guilty plea on July 18, 2003, following a change of plea hearing. Docket 45 at 3. On October 14, 2003, Defendant contested the firearm enhancement at a sentencing hearing. Id. The Court found that the enhancement was supported by a preponderance of the evidence. Id. The Court sentenced Defendant to 46 months. Id. No appeal was filed.Id.
DISCUSSION
Defendant's Waiver of the Right to Collaterally Attack His SentenceThe government argues that Defendant made an express written waiver of his right to collaterally attack his conviction and sentence. Id. at 5. The Ninth Circuit Court of Appeals has recognized that plea agreements are contractual in nature and are measured by contract law standards. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005) (quoting United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000)). A knowing and voluntary waiver of appellate rights is made when the plea agreement as a whole is knowingly and voluntarily made. Id. at 1154. "If the agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored." United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999). Additionally, the Ninth Circuit has previously enforced waivers of a defendant's right to challenge his sentence pursuant to 28 U.S.C. § 2255. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (citing United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993)). A waiver of the defendant's right to challenge his sentence pursuant to 28 U.S.C. § 2255 contained in a plea agreement must be expressly made. Pruitt, 32 F.3d at 433.
Here, the plea agreement that the government has attached as Exhibit A to Docket 45 makes it clear that Defendant expressly waived his right to collaterally attack his conviction and/or sentence. The plea agreement states: "[T]he defendant also knowingly and voluntarily agrees to waive his right to collaterally attack his conviction and/or sentence — including forfeiture." Docket 45, Exhibit A at 5-6. Because Defendant has knowingly and voluntarily waived his right to challenge his sentence pursuant to 28 U.S.C. § 2255, and he does not allege that he received ineffective assistance of counsel or did not enter his guilty plea involuntarily, he cannot challenge it.
Procedural Default
The government argues that Defendant procedurally defaulted his claim by failing to raise his claim on direct appeal. Docket 45 at 7.
[E]ven the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Habeas review is an extraordinary remedy and "'will not be allowed to do service for an appeal.'" Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300 (1994) (quoting Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590-1591 (1947)). Indeed, "the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas." United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087 (1979).Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610 (1998).
"Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice,' or that he is 'actually innocent.'" Id. at 622, 118 S.Ct. at 1611. Defendant does not claim that he is actually innocent.
In his reply, Defendant did not address the government's argument that he cannot demonstrate "cause" and "actual prejudice" in this case.
With respect to "cause," Defendant cannot claim that any attempt to challenge his guilty plea before Blakely would have been futile. "[F]utility cannot constitute cause if it means simply that a claim was 'unacceptable to that particular court at that particular time.'" Engle v. Isaacs, 456 U.S. 107, 130, n. 35, 102 S.Ct. 1558, 1573, n. 35 (1982). The Supreme Court has held that a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default. Bousley, 523 U.S. at 622, 118 S.Ct. at 1611. However, Defendant cannot argue that his claim was novel. The Apprendi opinion was issued in 2000, and Blakely andBooker clearly derive from it.
Nor can the defendant show "actual prejudice," that is, that the error "worked to his actual and substantial disadvantage."United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596 (1982). As the government notes, "actual prejudice" is a difficult standard to meet; it requires Defendant to meet a burden "significantly higher" than he would be required to satisfy on direct review under the plain error standard. Docket 45 at 8 (citing Frady, 456 U.S. at 166, 102 S.Ct. at 1593).
Defendant procedurally defaulted his claim by failing to appeal it directly. He cannot raise this claim in habeas because he has not demonstrated "cause" and "actual prejudice." Retroactivity of United States v. Booker
Defendant claims that Booker applies retroactively to his sentence. Docket No. 48 at 1, 2. The Booker opinion reiterates the ruling previously stated by the United States Supreme Court in Blakely, and Apprendi: that is, "[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." Booker, 543 U.S. ___, 125 S.Ct. at 746, quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. However, Apprendi did not apply to the federal sentencing guidelines. United States v. Hernandez-Guardado, 228 F.3d 1017, 1026-27 (9th Cir. 2000).Blakely reserved the decision about the status of the federal sentencing guidelines, and the Fourth and Fifth Circuits found that it did not apply to the federal sentencing guidelines. See United States v. Pineiro, 737 F.3d 464, 473 (5th Cir. 2004);United States v. Hammond, 381 F.3d 316, 353 (4th Cir. 2004).
There are several steps involved in analyzing whether Booker applies retroactively to cases on collateral review. First, the reviewing court must determine whether Booker announces a new rule. A "case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070 (1989).
District Judge Sedwick issued a judgement of conviction on October 14, 2003. Docket 31. Defendant did not appeal. Generally the judgment of conviction becomes final in a habeas case when the Supreme Court denies the petition for certiorari seeking review of a circuit court decision or the time for petition for certiorari has elapsed. United States v. Garcia, 210 F.3d 1058, 1059 (9th Cir. 2000) (citing Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708 (1987)).
Defendant's conviction became final when the time for appealing his sentence had passed. See United States v. Colvin, 204 F.3d 1221, 1225 (9th Cir. 2000). Defendant had 10 days to appeal his sentence after the judgement of conviction was issued on October 14, 2003. Fed.R.App.P. 4(b)(1)(A).
Defendant's conviction thus became final on October 24, 2003.Booker was issued on January 12, 2005. Booker is a new rule for the present purpose.
The second step is to decide whether the new rule is "substantive" or "procedural." A rule is substantive if it alters the range of conduct or the class of persons that the law punishes. Schriro, 124 S.Ct. at 2523. "In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural." Id. By definition, the rule announced in Booker is procedural.
New substantive rules generally apply retroactively because they "necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal."Id. at 2522-23. New procedural rules generally do not apply retroactively because they "merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Id. at 2523. Retroactive effect is only given to a small set of "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding. Id.
Defendant contends that his petition clearly falls within the second exception to the general rule set forth in Teague v. Lane, 489 U.S. 288, 301, 311, 109 S.Ct. 1060, 1070, 1075 (1989). Docket 44 at 3. The general holding of Teague is that a "case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301, 109 S.Ct. at 1070. Defendant claims that the second exception to the general rule states that a new rule should be applied retroactively if it will "properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction." Docket 44 at 3, citing Teague, 489 U.S. at 311, 109 S.Ct. at 1076.
Defendant mischaracterizes the second exception to the Teague rule, which actually is for "'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1264 (1990), citing Teague, 489 U.S. at 311, 109 S.Ct. at 1076. The language which Defendant quotes is from Supreme Court Justice Harlan's concurring opinion in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160 (1971), which states:
in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.401 U.S. at 693, 91 S.Ct. at 1180.
The Supreme Court has yet to find a new rule that falls under this exception to Teague. Beard v. Banks, ___ U.S. ___, 124 S.Ct. 2504, 2513-14 (2004). The second exception has an extremely "limited scope." 124 S.Ct. at 2513.
Defendant argues that an Oregon District Court considered the retroactivity of Booker and specifically made its holding without deciding the retroactivity issue. Docket 48 at 2 (citingUnited States v. Siegelbaum, 359 F.Supp.2d 1104 (D. Or. 2005) (Panner, J.)). District Judge Panner stated that he "cannot exclude the possibility that the [Supreme] Court might applyBlakely/Booker retroactively in some situations." Siegelbaum, 359 F.Supp.2d at 1108.
Every circuit court that has considered whether Booker applies retroactively to cases on collateral review has held that it does not. See, e.g., United States v. Green, 2005 WL 237204, at *1 (2d Cir.Feb. 2, 2005); United States v. Humphress, 2005 WL 433191, at *7 (6th Cir.Feb 25, 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.Feb. 2, 2005); United States v. Leonard, 2005 WL 139183, at *1 (10th Cir.Jan. 24, 2005). The Supreme Court expressly stated in Booker that it is to apply "to all cases on direct review" with no reference to cases on collateral review. 125 S.Ct. at 769. This Court agrees with the authority cited supra that Booker does not apply retroactively to cases on collateral review.