Opinion
File No. 1:04-CV-589.
March 17, 2005
OPINION
This matter is before the Court on Movant Sammy Dyer's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
On March 6, 1997, after a four-day jury trial, the jury returned a verdict finding Dyer guilty of one count of conspiracy to unlawfully distribute and possess with intent to distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. On June 6, 1997, Dyer was sentenced to 360 months in prison. United States v. Ross, et al., 1:96-CR-84. Dyer pursued a direct appeal. Ultimately, the United States Supreme Court denied Dyer a writ of certiorari on June 14, 1999.
I.
Initially, on September 3, 2004, Dyer filed a § 2255 arguing that he was sentenced in violation of the Sixth Amendment based upon Blakely v. Washington, 124 S. Ct. 2531 (2004). On January 4, 2005, Dyer filed a second motion requesting that his § 2255 based upon Blakely be dismissed because it was time barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Additionally, for the first time, Dyer raised a claim that he was improperly sentenced on the conspiracy charge based upon United States v. Dale, 178 F.3d 429 (6th Cir. 1999), as well as a claim that he received ineffective assistance of counsel at sentencing. Finally, on February 15, 2005, Dyer submitted a motion entitled "Supplemental Motion to 28 U.S.C. § 2255" in which he argues that his sentence was improperly enhanced by facts found by the Court at sentencing, in violation of Booker v. United States, 125 S.Ct. 738 (2005).
The Court will grant Dyer's request to voluntarily dismiss his original § 2255 based upon Blakely. In addition, the Court will treat the motion filed on January 4, 2005, raising the Dale claim and the ineffective assistance of counsel claim as Dyer's first § 2255 motion. Dyer's third submission to the Court could be treated as either a second or successive petition that requires certification from a panel of the court of appeals or as an amendment to the January 4, 2005 motion. Because the ultimate result is the same, the Court will analyze the February 15 petition as both a second or successive petition, and alternatively as an amendment.
II.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that if it plainly appears from the face of the § 2255 motion, exhibits and prior proceedings that the petitioner is not entitled to relief, the judge shall make an order for its summary dismissal. After undertaking the review required by Rule 4, the Court will dismiss Dyer's motion because it is barred by the one-year period of limitation provided in § 2255. Since the passage of the AEDPA, § 2255 motions have been subject to a one-year limitation period. As amended § 2255 ¶ 6 provides:
A 1-year period of limitation shall apply to a motion under this section. 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. § 2255, ¶ 6. In this case, the one-year statute of limitations runs from the date on which Dyer's conviction became final. 28 U.S.C. § 2255 ¶ 6(1). Generally, a conviction becomes final for purposes of collateral attack upon conclusion of direct review. See United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002). Because Dyer pursued direct review of his conviction until the Supreme Court denied his petition for a writ of certiorari, his conviction became final on the date the Supreme Court denied his petition. See Clay v. United States, 537 U.S. 522, 527 (2003). His petition for a writ of certiorari was denied on June 14, 1999. Therefore, Dyer had one year from June 14, 1999, within which to file a § 2255. His present motion was filed on January 4, 2005, over four years after the statute of limitations expired. Both Dyer's claim based upon Dale and his ineffective assistance of counsel claim were available at the time his conviction became final, yet he did not pursue any post-conviction relief until filing his habeas petitions in September 2004 and January 2005. Dyer's motion is time barred under § 2255, ¶ 6(1). Accordingly, the Court will summarily dismiss Dyer's motion.
Indeed his originally filed § 2255 based upon Blakely, which has subsequently been voluntarily dismissed, was filed after the bar date as well (September 3, 2004).
Turning to Dyer's supplemental motion raising a claim that his sentence was improperly enhanced in violation of Booker. The Court could view this motion as a second or successive petition that must be certified, as provided in 28 U.S.C. § 2244, by a panel of the court of appeals to contain "newly discovered evidence" or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255, ¶ 8. In that event, the proper disposition would be to transfer the case to the court of appeals pursuant to 28 U.S.C. § 1631; In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Section 1631 requires transfer where there is a want of jurisdiction "if it is in the interest of justice." In this case, a transfer would not be in the interest of justice because Dyer cannot obtain collateral relief based upon Booker. A second or successive petition requires the court of appeals to determine whether the case has been made retroactive "by the Supreme Court." 28 U.S.C. § 2255, ¶ 8(2). The Supreme Court has not made Booker retroactive. See, e.g. In re Anderson, 396 F.3d 1336 (11th Cir. 2005) (holding that the Supreme Court has not expressly declared Booker to be retroactive to cases on collateral review); Green v. United States, 397 F.3d 101 (2nd Cir. 2005) (denying motion to file second or successive petition because neither Blakely nor Booker apply retroactively). Thus, it would be futile and would not be in the interests of justice to transfer Dyer's Booker claim to the Court of Appeals under 28 U.S.C. § 1631.
Even if the Court were to construe Dyer's supplemental motion as an amendment to his January 4, 2005 motion, his claim would fail because his petition is untimely under § 2255, ¶ 6. Dyer's supplemental argument rests on the retroactive application of Booker because it was decided well after his conviction was final. Although the Supreme Court did not address the Booker decision's retroactive effect on cases on collateral review, the Sixth Circuit has foreclosed such an argument in this circuit. Humphress v. United States, No. 03-5951, 2005 WL 433191 (6th Cir. Feb. 25, 2005). This is consistent with the holdings of every circuit court that has considered the issue. See e.g., United States v. Price, No. 04-7058, 2005 WL 535361 (10th Cir. Mar. 8, 2005); Varela v. United States, 2005 WL 367095 (11th Cir. Feb. 17, 2005); McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005). Thus, it is not necessary to permit Dyer to amend his § 2255 to assert a claim based upon Booker.
Accordingly, the Court will enter an order granting Dyer's motion to voluntarily dismiss his August 30, 2004 motion and summarily dismissing Dyer's January 4, 2005 motion because it is time-barred under AEDPA. Further, the Court will deny Dyer's February 15, 2005 supplemental motion asserting a Booker claim.