Opinion
No. 04 C 1549.
August 31, 2004
MEMORANDUM OPINION AND ORDER
Petitioner Karen Sadowsky was sentenced on March 10, 2004, to 32 months imprisonment and three years probation for wire fraud and false statements (USA v. SADOWSKY, 02 CR 7401). On February 27, 2004, petitioner filed a motion to vacate, set aside or correct her sentence under 28 U.S.C. § 2255, along with a motion to proceed in forma pauperis and a motion for appointment of counsel. On March 8, 2004, the court issued a memorandum opinion and order denying petitioner a copy of the transcript of her proceedings for preparation of a § 2255 petition, finding no basis for such a petition. As previously stated, "her plea agreement waives any possible collateral attack other than a claim of involuntariness, or ineffective assistance of counsel, `which relates directly to this waiver or its negotiation,' — a very small window indeed."
Petitioner has now filed a motion for a certificate of appealability and a motion for appointment of counsel. Though the motion for a certificate of appealability was addressed to the Seventh Circuit Court of Appeals, it was filed in this district court. In her motion for a certificate of appealability, petitioner seeks to file a second motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. Before a district court entertains a second or successive motion filed under § 2255, it must be certified by a panel of the appropriate court of appeals to contain newly discovered evidence that could establish that no reasonable factfinder would have found the movant guilty, 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; see 28 U.S.C. § 2244(a). The petitioner's motion has not been certified by a panel of the Seventh Circuit, and therefore we do not have jurisdiction over it.
Petitioner asserts that she never received a judgment on her first § 2255 petition and, in fact, the minute order attached to our opinion did not directly deny her original petition. However, even if we had jurisdiction over petitioner's current motion, we would deny it. Petitioner seeks to have her sentence vacated in light of the Supreme Court's ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004), which held unconstitutional an upward departure in sentencing based on judicial fact-finding under state sentencing guidelines. Petitioner argues that Blakely establishes that her Sixth Amendment rights were violated when her sentence was enhanced pursuant to federal sentencing guidelines. If we had jurisdiction we would deny petitioner's motion without prejudice, allowing her to refile an applicable motion if it is determined that Blakely applies retroactively to sentences determined under the federal sentencing guidelines. See Simpson v. U.S., 376 F.3d 679, 681 (2004) (dismissing without prejudice Simpson's application for leave to file a successive collateral attack based on Blakely, but recognizing his right to refile should "the Supreme Court announce thatBlakely applies retroactively to cases on collateral review").
CONCLUSION
As we do not have jurisdiction over petitioner's motion, we do not rule on its merits. However, even if we did have jurisdiction, we would deny it without prejudice.