Opinion
Case No. 05 C 3647.
July 19, 2005
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Clayton Graham's Habeas Corpus Petition to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the following reasons, Graham's Petition is denied.
I. INTRODUCTION
On June 24, 2004, Graham pled guilty to seven counts of mail fraud under 18 U.S.C. § 1341. Graham agreed that the losses resulting from his fraud totaled more than $200,000, but less than $350,000. Mail fraud carried a base offense level of six points under the Federal Sentencing Guidelines. The Court added another eight points to Graham's base level because of the amount he had defrauded and deducted three points for his acceptance of responsibility. The resulting eleven point base offense level meant that Graham could be sentenced between 8 and 14 months. However, the Court increased his point level because it found that he abused his authority and partook in more than minimal planning by a preponderance of the evidence. The additional four points meant that Graham could be sentenced between 18 and 24 months. The Court sentenced Graham to 21 months in prison.
On the same day of Graham's sentencing, the Supreme Court rendered the Blakely v. Washington opinion, which questioned the validity of mandatory federal sentencing guidelines, but did not resolve the issue. Blakely, 542 U.S. 296 (2004). Following that opinion, in 2005, the Supreme Court held that the mandatory portions of the federal sentencing guidelines were invalid. United States v. Booker, 125 S.Ct. 738 (2005). Additionally, Booker held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty . . . must be admitted by the defendant." Id. at 756.
II. DISCUSSION
Graham's singular claim is that in light of Booker, the Court unconstitutionally increased his sentence by adding four points for abuse of authority and more than minimal planning when he did not admit to either of these actions in his guilty plea. First, the Court notes that under § 2255, in order for Graham to seek collateral review of his sentence, he must first exhaust all his other available options — namely, filing a direct appeal. See Norris v. United States, 687 F.2d 899, 901-02 (7th Cir. 1981) (explaining that a petitioner's failure to appeal results in procedural defaulting his habeas claims, which is only overcome by the cause-prejudice standard). Graham's § 2255 form clearly denotes that he failed to appeal his sentence directly to the Seventh Circuit Court of Appeals and gives no indication of cause or resulting prejudice. Consequently, he is barred from seeking habeas relief in this Court. Even so, the Court addresses Graham's claim to demonstrate the fruitlessness of attacking his sentence on the stated grounds.
Graham relies on United States v. Loutos, 383 F.3d 615 (7th Cir. 2004), to demonstrate that he should receive sentencing relief under Blakely and Booker. However, unlike Graham's collateral attack of his sentence, Loutos addressed the issue of direct attacks on sentences under Blakely and Booker. Id.
The governing law for collateral attacks on sentences under Blakely and Booker is instead McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005). In McReynolds, the Seventh Circuit concluded that " Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005." Id. at 481. The Seventh Circuit made clear that this date, and not the date of the Blakely decision, was the decisive date for purposes of sentencing decisions in the district court. Id. The Seventh Circuit held that Booker was not retroactive to collateral attacks of sentences because it was not one of those "rare watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. (quoting Schriro v. Summerlin, 124 S.Ct. 2519 (2004)). Accordingly, Graham's claim fails because Booker does not apply to a collateral proceeding.
III. CONCLUSION
For the reasons stated herein, Defendant Clayton Graham's Habeas Corpus Petition to Vacate, Set Aside, or Correct Sentence is DENIED.
IT IS SO ORDERED.