Opinion
Case No. A00-0169 CR (HRH).
June 9, 2005
ORDER TO SHOW CAUSE
On June 3, 2005, Bobby D. Thompson filed a motion to set aside, vacate or correct sentence, under 28 U.S.C. § 2255, alleging that his sentence was unconstitutional under the United States Supreme Court's decision in Blakely v. Washington, which was extended to the federal sentencing guidelines by United States v. Booker.
See Docket No. 144.
Blakely v. Washington, 124 S.Ct. 2531, 2536 (2004).
United States v. Booker, 125 S.Ct. 738, 746 (2005).
A motion under § 2255, may be brought based upon a new "watershed rule" of Constitutional law. However, this Court is of the opinion that, as determined by the federal appellate courts which have decided the issue, the Court of Appeals for the Ninth Circuit will also decide that Booker's extension of Blakely to the federal sentencing guidelines is not retroactive to cases on collateral review.
See Schriro v. Summerlin, 124 S.Ct. 2519, 2524-26 (2004); Ring v. Arizona, 536 U.S. 584 (2002); Saffle v. Parks, 494 U.S. 484, 494-95 (1990); Teague v. Lane, 489, U.S. 288, 311 (1989).
See, e.g., Lloyd v. United States, 2005 WL 1155220 (3rd Cir. May 17, 2005) ("Because Booker announced a rule that is `new' and `procedural,' but not `watershed,' Booker does not apply retroactively to initial motions under § 2255 where the judgment was final as of January 12, 2005, the date Booker issued."); In re Elwood, 2005 WL 976988 at *2 (5th Cir. April 28, 2005) ("[I]t is clear that Booker has not been made retroactive to cases on collateral review by the Supreme Court. The Supreme Court did not so hold in Booker nor has the Court done so in any case since Booker. The same is true with respect to Apprendi and Blakely. In fact, in Booker, the Court expressly held that both the Sixth Amendment holding and its remedial interpretation apply "`to all cases on direct review.'") (citation omitted); United States v. Rodriguez, 2005 WL 895174 at *19 (11th Cir. April 19, 2005) ("No circuit, including the Seventh, has yet to suggest that Booker is retroactively applicable to collateral proceedings, and in light of Schriro, . . . it is highly unlikely that any will.") ; Cirilo-Munoz v. United States, 2005 WL 858324 at *6 (1st Cir. April 15, 2005) ("If such a vast reopening of final judgments is required, it must await a decision of the Supreme Court. Certainly Booker itself does not give any clear hint that retroactive effect is intended. Every other circuit that has considered this issue has agreed that Booker does not apply retroactively.") ; Guzman v. United States, 2005 WL 803214 at *3-*4 (2nd Cir. April 8, 2005) (" Booker did not establish a watershed rule because `the only change [is] the degree of flexibility judges . . . enjoy in applying the guideline system.' . . . Booker is not retroactive, i.e., it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued.") (citation omitted); United States v. Bradley, 400 F.3d 459, 460 (6th Cir. 2005) ("because Bradley agreed to be sentenced under the Guidelines and because Bradley waived his right to appeal the resulting sentence (save for claims of ineffective assistance of counsel or prosecutorial misconduct), Booker does not give Bradley a right to be resentenced."); United States v. Price, 400 F.3d 844 (10th Cir. 2005) (" Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004.") ; Bey v. United States, 399 F.3d 1266, 1269 (10th Cir. 2005) ("Booker may not be applied retroactively to second or successive habeas petitions.") ; Green v. United States, 397 F.3d 101, 103 (2nd Cir. 2005) ("In Booker, the Supreme Court noted that its holdings in that case apply to `all cases on direct review' but made no explicit statement of retroactivity to collateral cases. Booker, . . . 125 S.Ct. at 769. Thus, neither Booker nor Blakely apply retroactively to Green's collateral challenge."); In re Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005) ("Regardless of whether Booker established a "new rule of constitutional law" within the meaning of §§ 2244(b)(2)(A) and 2255, the Supreme Court has not expressly declared Booker to be retroactive to cases on collateral review. . . . Put simply, Booker itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) (" Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005.").
In addition, Mr. Thompson alleges ineffective assistance of counsel, claiming his lawyer's representation was ineffective under the two-prong Strickland test. This ground for relief, however, appears to be untimely. And because Mr. Thompson cannot bring his motion for collateral review under Booker and Blakely, they do not toll the limitations period.
Strickland v. Washington, 466 U.S. 668 (1984); see also Franklin v. Johnson, 290 F.3d 1223 (9th Cir. 2002) (finding unreasonable representation, without prejudice, so habeas petition denied).
There is a one-year limitations period in which to file a habeas petition under 28 U.S.C. § 2255.
Following the majority of federal appellate courts, including the Ninth Circuit, the United States Supreme Court held: "For the purpose of starting the clock on § 2255's one-year limitation period, . . . a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." As explained by the Court of Appeals for the Ninth Circuit:
Clay v. U.S., 123 S.Ct. 1072, 1074 (2003).
In most circumstances, the statute of limitations under § 2255 begins to run on "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(1). Section 2255 does not define "final." The Supreme Court has held that a conviction is final in the context of habeas review when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Guided by the Supreme Court's definition of finality, we have adopted, for § 2255 purposes, the definition of finality set forth in 28 U.S.C. § 2244(d)(1) which is applicable to state prisoners seeking federal habeas relief. See United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000). Thus, . . . the statute of limitations within which [petitioner] had to file her § 2255 motion began to run upon the expiration of the time during which she could have sought review by direct appeal. Id.
United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001).
Mr. Thompson would have had one year from the conclusion of his direct appeal or post-conviction proceedings in which to file his petition. The Court of Appeals for the Ninth Circuit reached its decision affirming Mr. Thompson's conviction on August 16, 2002. The mandate was filed in this Court on October 16, 2002. Mr. Thompson had ninety days to petition the United States Supreme Court for certiorari. The record in this case does not indicate whether Mr. Thompson petitioned for certiorari, and if he did, the date on which his petition was denied.
See United States v. Thompson, 2002 WL 1891642 (9th Cir. August 16, 2002).
See Docket No. 114.
See Rule 13.1 of the Rules of the Supreme Court of the United States.
Mr. Thompson's action will be dismissed if he has not brought this action within the one-year time period, unless there are "extraordinary circumstances" beyond his control, which made it impossible to file his petition on time. And because there is no right to counsel in habeas cases, any "miscalculation of the limitations period by . . . counsel and [counsel's] negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling."
See U.S. v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004) ("we now specifically declare what must seem obvious to many: The statute of limitations contained in § 2255 is subject to equitable tolling."); see also Calderon at 1288-89 (citing, Alvarez-Machain v. United States, 107 F.3d 696, 700 (9th Cir.), cert. denied, 118 S.Ct. 60 (1997), where equitable tolling of a statute was allowed for "extraordinary circumstances" when, inter alia, "Alverez-Machain was [wrongfully] incarcerated for over two years, facing criminal charges of the highest gravity in a foreign country whose language he did not understand"); see also Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (lack of access to library materials does not automatically qualify as grounds for equitable tolling, but may constitute an impediment).
Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001), cert. denied, 122 S.Ct 1913 (2002); see also Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir.), cert. denied, 123 S.Ct. 496 (2002) (letter from attorney with a miscalculated due date — or at least a typo — at the close of her representation on direct review, does not constitute extraordinary circumstances).
Mr. Thompson will be allowed to show why his § 2255 motion should not be denied as untimely. In his response, Mr. Thompson should explain whether there are any extraordinary circumstances, outside of his control, which made it impossible to file his motion on time. Mr. Thompson should remember that the Supreme Court's decisions Booker and Blakely will not be considered extraordinary circumstances outside of his control, for tolling purposes.
See Herbst v. Cook, 260 F.3d at 1043 (9th Cir. 2001) ("while the district court has the authority to raise the statute of limitations sua sponte and to dismiss the petition on those grounds, that authority should only be exercised after the court provides the petitioner with adequate notice and an opportunity to respond.") (citations omitted).
IT IS HEREBY ORDERED that:
1. Mr. Thompson's grounds one, two, and three of his motion under § 2255 at docket number 144, based upon Booker and Blakely, are DISMISSED with prejudice.
2. On or before July 11, 2005, Mr. Thompson must show that ground four of his motion for relief under 28 U.S.C. § 2255 has been filed in a timely manner, or that there is some basis for equitable tolling (suspending the limitations period); otherwise his motion must be denied as untimely.
3. The Clerk of Court is directed to send Mr. Thompson a Notice Regarding Statute of Limitations to assist him in complying with this Order.
4. In the alternative, Mr. Thompson may file the enclosed notice of voluntary dismissal, without prejudice, on or before July 11, 2005.
5. The Clerk of Court is directed to send form PS09, Notice of Voluntary Dismissal, to Mr. Thompson with this Order.
6. No further action will be taken on the pending motion for appointment of counsel, at docket number 143, until Mr. Thompson fully complies with this Order.
7. Mr. Thompson shall provide the Court with the original, plus one complete and legible copy, of every paper he submits for filing, as required by this Court's Local Rule 5.1(b).
8. The Clerk of Court is directed to send a copy of our pro se handbook, "Representing Yourself in Alaska's Federal Court," to Mr. Thompson with this Order.