Opinion
Criminal No. 1:02cr75WJG-JMR, Civil Action No. 1:05CV473WJG-JMR.
August 6, 2006
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant Arlando Lamar Arnold's motion to vacate, set-aside or correct sentence [29-1] pursuant to 28 U.S.C. § 2255. After due consideration of the arguments, evidence of record, applicable law, and being otherwise advised in the premises, the Court finds as follows:
Arnold pleaded guilty to count three of the indictment against him on December 10, 2002. (Ct. R., Doc. 15.) He was charged with possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ( Id.) As part of his negotiated plea agreement, Arnold waived his right to appeal the conviction/sentence or the manner in which it was imposed. (Ct. R., Doc. 16, pp. 5-6.) This included a waiver of his right to contest the conviction/sentence in a post-conviction proceeding or by section 2255 motion. ( Id., p. 5.) Arnold was sentenced to 151 months imprisonment, 5 years supervised release, and a $100.00 special assessment. (Ct. R., Doc. 25.) On March 19, 2003, the Court entered its Judgment of conviction. (Ct. R., Doc. 26.)
Arnold asserts that his sentence should be vacated based on the assertion that the sentence was illegally enhanced under United States v. Booker, 543 U.S. 220, (2005), and Blakely v. Washington, 542 U.S. 296 (2004). (Ct. R., Doc. 29, pp. 1, 5-18.) Again, Arnold entered a negotiated plea of guilty pursuant to a plea agreement which contained an unambiguous waiver of his right to appeal the conviction/sentence or contest the conviction/sentence in any post-conviction proceeding. (Ct. R., Doc. 16, p. 5.) A defendant may, as part of a plea agreement, waive the right to appeal, United States v. Cuevas-Andrade, 232 F.3d 440, 446 (5th Cir. 2000) (citing United States v. Melancon, 972 F.2d 566 (5th Cir. 1992)), and the right to seek post-conviction relief. United States v. Wilkes, 20 F.3d 651, 653-4 (5th Cir. 1994). Arnold does not contest the validity of the waiver, and does not assert that he received ineffective assistance of counsel; therefore the Court has no reason to examine the validity of his waiver. United States v. White, 307 F.3d 336, 340 (5th Cir. 2002). The Court, therefore, finds that Arnold waived his right to file the instant motion.
In addition, the motion to vacate was filed October 14, 2005. (Ct. R., Doc. 29, p. 1.) A timely habeas petition must filed within one year after the final judgment of conviction. 28 U.S.C. § 2255. A conviction becomes final upon the expiration of the time for seeking review of a final conviction, regardless of whether such a petition is actually filed. United States v. Gamble, 208 F.3d 536 (5th Cir. 2000); Clay v. United States 537 U.S. 522, 532 (2003). The judgment of conviction in this case was filed on March 19, 2003. (Ct. R., Doc. 26.) Arnold did not file a direct appeal. (Ct. R.) The time period for Arnold to file a notice of appeal from the judgment against him was ten days later. FED. R. APP. P. 4(b)(1)(A). Arnold's conviction was final on April 2, 2003. A timely filed habeas petition was due in this case on April 2, 2004. The Court, therefore, concludes that this motion is time-barred, as calculated using 28 U.S.C. § 2255(1).
Even if his claim were timely filed, his arguments regarding his sentence imposed pre- Booker and Blakely lack merit. The Fifth Circuit has expressly addressed consideration of Booker and Blakely on collateral review:
[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." 125 S.Ct. at 769 (emphasis added). The Court could have, but did not, make any reference to cases on collateral review.
In addition, the Supreme Court has not rendered any decision or combination of decisions that, while not expressly making the rule of Apprendi, Blakely and Booker retroactive, "necessarily dictate[s] retroactivity" of that rule. Tyler, 533 U.S. at 666. To the contrary, the Supreme Court has strongly suggested that Apprendi and, by logical extension, Blakely and Booker do not apply retroactively on collateral review. See Schriro v. Summerlin, 542 U.S. 348, (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, does not apply retroactively to cases on collateral review).In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005); see United States v. Gentry, 432 F.3d 600, 602-605 (5th Cir. 2005) (holding that Booker does not apply retroactively to initial § 2255 motions); United States v. Edwards, 442 F.3d 258, 268 (5th Cir. 2006). Simply put, Booker and Blakely are not retroactively applicable on collateral review, and Arnold's arguments to the contrary are without merit. Consequently, the Court finds that Arnold's motion to vacate pursuant to 28 U.S.C. § 2255 should be denied. It is therefore,
ORDERED AND ADJUDGED that Arnold's motion to vacate [29-1] be, and is hereby, denied. It is further,
ORDERED AND ADJUDGED that the above styled action be, and is hereby, dismissed with prejudice.