Opinion
Criminal No. 4:02-CR-225-Y, Civil No. 4:04-CV-787-Y.
December 8, 2004
ORDER DISMISSING MOTION UNDER 28 U.S.C. § 2255
Now pending before the Court is defendant Jose N. Juarez's October 28, 2004, motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. In connection with the above-styled and numbered cause, this Court has reviewed Juarez's motion under § 2255 pursuant to Rule 4(b) of the Rules Governing Section 2255 Cases in the United States District Courts and, after affording Juarez notice of a limitations issue and giving him the opportunity to respond, finds that the motion must be dismissed as untimely under the one-year time period for the filing of motions under § 2255.
Rule 4 of the Rules Governing Section 2255 Cases provides:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.
RULES GOVERNING SECTION 2255 CASES, RULE 4(b) (emphasis added). See Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999) (noting that although the statute of limitations is an affirmative defense, it is appropriate for a district court to raise and consider such defense sua sponte); see generally United States v. Wynn, 273 F.3d 592, 596 (5th Cir. 2001) (holding that courts may sua sponte apply the "cause and prejudice" procedural default standard to bar a § 2255 if the movant is given notice and an opportunity to contest) (§ 2255); Magourik v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998) (holding that district court did not abuse its discretion in raising procedural bar sua sponte where habeas petitioner was afforded both notice and a reasonable opportunity to oppose its application) (§ 2254).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), amended 28 U.S.C. § 2255 to provide that:
Pub.L. 104-132, 110 Stat. 1217 (1996).
A 1-year period of limitation shall apply to a motion under [§ 2255]. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C.A. § 2255, ¶¶ 6(1-4) (West Supp. 2004).
Because defendant Juarez filed this motion after the enactment of the AEDPA, the timeliness of this filing is controlled by these provisions of § 2255.
Defendant Juarez was convicted of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. 841 (a) (1) (b) (1) (A). This Court's judgment of conviction against Juarez was entered on June 12, 2003. Juarez did not file a notice of appeal, and thus his judgment of conviction became final ten days after entry of the judgment, or June 22, 2003. Thus, under 28 U.S.C. § 2255(1), Juarez had one year, or until June 22, 2004, to timely file his § 2255 motion.
Defendant Juarez's motion under § 2255 was constructively filed in this Court on October 25, 2004. Thus the § 2255 motion was filed over four months beyond the § 2255(1) limitations deadline. In his response to the order to show cause why the § 2255 motion should not be summarily dismissed, Juarez contends that his claims stem from the Supreme Court's decision in Blakely v. Washington, 124 S.Ct. 2351 (2004), and that he has filed within one year of the release of that opinion. The Court interpret this claim as an argument by Juarez that the limitations period did not begin to run until "the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review. . . ."
A pro se prisoner's habeas corpus petition is constructively filed, for the purposes of the AEDPA, when the prisoner delivers the papers to prison authorities for mailing to the district court. United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (2255), citing Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (2254); see also Sonnier v. Johnson, 161 F.3d 941, 944-45 (5th Cir. 1998). Juarez dated his motion on October 25, 2004, and thus that is the earliest date on which this § 2255 motion could be deemed filed under the mailbox rule.
28 U.S.C.A. § 2255, ¶ 6(3) (West Supp. 2004).
The phrase, "retroactive to cases on collateral review," appears twice in 28 U.S.C. § 2255, both in the limitations provision (paragraph 6(3)), and in the successive-filing provision (paragraph 8 (3)). This language is also set forth in the provision applicable to the review of successive applications by petitioners challenging state convictions, 28 U.S.C. § 2244(b) (2) (A), and the Supreme Court has defined the proper interpretation of the phrase in that context:
The only way the Supreme Court can, by itself, 'lay out and construct' a rule's retroactive effect, or 'cause' that effect 'to exist, occur, or appear,' is through a holding. The Supreme Court does not 'ma[k]e a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower courts (or perhaps by a combination of courts), not by the Supreme Court. We thus conclude that a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive.
Tyler v. Cain, 533 U.S. 656, 663 (2001) (citations omitted).
The Supreme Court has not held that its decision in Blakely is to be made retroactive, and the opinion itself did not suggest that its holding would apply retroactively. The Eleventh Circuit Court of Appeals found that Blakely was not applicable to cases already final, and that opinion is instructive:
See generally Blakely, 124 S.Ct. at 2537-2541.
[T]he same day the Supreme Court decided Blakely, the Court also issued its decision in Schiro v. Summerlin, 124 S.Ct. 2519, 2004 WL 1402732 (U.S. June 24, 2004), holding that Ring v. Arizona, 536 U.S. 584 (2002), which extended application of Apprendi to facts increasing a defendant's sentence from life imprisonment to death, is not retroactive to cases on collateral review. Schiro, 124 S.Ct. 2519, 2-4 WL 1402732, at **4-7; see also Blakely, 2004 WL 1402697, at *16 (O'Connor, J. dissenting) (recognizing the Court's holding in Summerlin "that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review").
In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004).
The Supreme Court's determination that the phrase "made retroactive to cases on collateral review" requires that the high Court issue an express holding as to the retroactivity of a particular new rule, along with the analysis of the Eleventh Circuit that the Supreme Court has not applied Blakely retroactively to cases on collateral review, leads to the conclusion that the Blakely opinion does not create a new commencement date for § 2255 limitations purposes under paragraph 6(3) of § 2255. In other words, because Blakely has not been held to be retroactively applicable on collateral review, defendant Juarez procedurally cannot file a motion for collateral review based on Blakely, contending that he has a new limitations-commencement date.
Due to the disposition of this § 2255 motion on the procedural basis, the Court has not reached the merits of Juarez's claims based upon Blakely. The Blakely decision, of course, invalidated a sentence imposed under a sentencing regime in the State of Washington. The Fifth Circuit has determined, however, that Blakely does not apply to and does not invalidate the federal sentencing guidelines. United States v. Pinero, 377 F.3d 464, 467-473 (5th Cir. 2004), petition for cert. filed, (U.S. July 14, 2002) (No. 04-5263).
It is therefore ORDERED that defendant Jose N. Juarez's Motion Under 28 U.S.C. § 2255 be, and is hereby, DISMISSED WITH PREJUDICE.
FINAL JUDGMENT
Pursuant to an Order Dismissing Motion Under 28 U.S.C. § 2255 issued this same day, and Federal Rule of Civil Procedure 58:It is hereby ORDERED, ADJUDGED, and DECREED that defendant Jose N. Juarez's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence be, and is hereby, DISMISSED WITH PREJUDICE.