Opinion
File No. 1:04-CV-628.
February 18, 2005
OPINION
This matter comes before the Court on Movant Arthur Henry Modderman's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him by this Court.
On December 12, 2001, after a ten-day jury trial, the jury returned a verdict finding Modderman guilty of one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, three counts of offering a fictitious instrument in violation of 18 U.S.C. § 514(a), and nine counts of false declaration in violation of 26 U.S.C. § 7206(1). On May 20, 2002, Modderman was sentenced to 96 months in prison. United States v. Anderson, et al., 1:01-CR-175. Modderman did not appeal his sentence. Modderman filed this motion to vacate sentence on September 20, 2004. Modderman argues that his sentence must be vacated pursuant to the new rule of constitutional law announced in Blakely v. Washington, 124 S. Ct. 2531 (2004).
II.
Modderman's motion must be denied because it was not timely filed. Section 2255 contains a one-year limitations period that precludes a prisoner from filing a § 2255 motion more than one year after the latest of four specified events. 28 U.S.C. § 2255, ¶ 6. Modderman was sentenced on May 20, 2002, and his conviction became final ten days later when his time for filing an appeal expired. See FED. R. APP. P. 4(b)(1). Modderman did not file this § 2255 motion until September 20, 2004, more than one year after his conviction became final. Accordingly, his motion is not timely under § 2255, ¶ 6(1).The only other date that arguably applies is the date on which the right was "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255, ¶ 6(3). Modderman contends in his § 2255 motion that his conviction is illegal under Blakely v. Washington, 124 S. Ct. 2531 (2004). Because Modderman filed his § 2255 motion within a year after Blakely was decided, his motion would be timely if the right he asserts under Blakely was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255, ¶ 6(3). The Court agrees that the right Modderman asserts in his § 2255 motion, i.e., the right have a jury decide beyond a reasonable doubt factors relied on to increase his sentence, was a new right originally recognized in Blakely. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that "[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." Id. at 490. Blakely extended Apprendi by holding that the relevant "statutory maximum" for purposes of Apprendi "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." 124 S. Ct. at 2537 (emphasis in original). Prior to Blakely every federal court of appeals had held that Apprendi applied only to sentencing decisions that increased the statutory maximum penalty and that it did not apply to guideline calculations made within the statutory maximum. Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) (citing cases). Although Blakely concerned the State of Washington's sentencing scheme, the Blakely analysis was subsequently extended to federal sentencing guideline issues in the recent Supreme Court opinion in United States v. Booker, 125 S. Ct. 738 (2005).
Although Blakely and Booker undoubtedly represent new law, the Supreme Court has not held that they are retroactively applicable to cases on collateral review. See In re Anderson, ___ F.3d ___, 2005 WL 123923, *3-4 (11th Cir. Jan. 21, 2005) (holding that the Supreme Court has not made Booker or Blakely retroactive to cases already final on direct review); Green v. United States, 2005 WL 237204, *1 (2nd Cir. Feb. 2, 2005) (holding that the Supreme Court has not clearly made Blakely or Booker retroactively applicable to cases on collateral review). Moreover, all of the lower courts that have independently examined Blakely have uniformly held that it does not fall within one of the exceptions to the general rule that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague v. Lane, 489 U.S. 288, 310 (1989). See In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (noting that the Supreme Court strongly implied in Schriro v. Summerlin, 124 S. Ct. 2519 (2002), that Blakely is not to be applied retroactively); Lilly v. United States, 342 F. Supp.2d 532, 537 (W.D.Va. 2004) (" Blakely is a new procedural rule that does not meet the requirement of being a watershed rule of criminal procedure."); United States v. Phillips, 2004 WL 2414819, *3 (D.Or. 2004) (declining to apply Blakely retroactively on collateral attack); Morris v. United States, 333 F. Supp.2d 759, 772 (C.D.Ill. 2004) (holding that Blakely cannot be applied retroactively on collateral attack). In the short time since Booker was decided, the courts that have considered the issue have similarly held that Booker does not apply retroactively to criminal cases that became final before Booker was decided by the Supreme Court. See, e.g., McReynolds v. United States, ___ F.3d ___, 2005 WL 237642, *2 (7th Cir. Feb. 2, 2005) (" Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005."); United States v. Johnson, ___ F. Supp.2d ___, 2005 WL 170708, *1 (E.D.Va. Jan. 21, 2005) (holding that neither Blakely nor Booker apply retroactively on collateral review); Gerrish v. United States, ___ F. Supp.2d ___, 2005 WL 159642, *1 (D.Me. Jan. 25, 2005) (holding that Blakely and Booker "are not applicable to cases that were not on direct appeal when they were decided.").
Although Booker explicitly stated that its holdings must be applied to all cases on direct review, it was silent on the issue of whether Booker should be applied on collateral review to convictions that had already become final. 125 S. Ct. at 739.
Because Blakely and Booker are not retroactively applicable to cases on collateral review and because Modderman has not shown that his motion is otherwise within the limitation period of § 2255, Modderman's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 must be denied because it is barred by the one-year statute of limitations applicable to § 2255 motions.
An order consistent with this opinion will be entered.