U.S. v. Gill, Civ. 04-3365-SAC.
Decision Date | 28 February 2005 |
Docket Number | No. Crim. 00-40100-01SAC.,No. Civ. 04-3365-SAC.,Civ. 04-3365-SAC.,Crim. 00-40100-01SAC. |
Citation | 382 F.Supp.2d 1229 |
Parties | UNITED STATES of America, Plaintiff/Respondent, v. Shawn Michael GILL, Defendant/Movant. |
Court | U.S. District Court — District of Kansas |
Shawn Michael Gill, Leavenworth, KS, pro se.
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for Defendant.
The case comes before the court on the defendant's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, (Dk. 40), and motion for evidentiary hearing (Dk. 41). The defendant asserts only one ground in support of his requested relief, that is, the sentencing court violated his Sixth Amendment rights in enhancing his sentence under the United States Sentencing Guidelines for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). The defendant denies ever admitting to the possession of a firearm in the commission of the offenses. In effect, the defendant is challenging the legality of his sentence based upon the Supreme Court's recent decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The government has filed a response opposing the retroactive application of the Blakely decision. (Dk. 43). The defendant did not file a reply brief.
Charged in a four-count indictment with three drug trafficking crimes and a firearm crime, the defendant pleaded guilty in May of 2001 to the three drug trafficking counts. In the plea agreement, the defendant "stipulate[d] to the applicability of U.S.S.G. § 2D1.1(b)(1)," a two-level enhancement for possession of a dangerous weapon. The presentence report ("PSR") recommended a guideline sentencing range of 84 to 105 months using a total offense level of 25 (resulting from a base offense level of 26, a two-level firearm enhancement, and a three-level reduction for acceptance of responsibility) and a criminal history category of four. The defendant's only objection to the PSR was for the addition of 7.1 grams of crack cocaine as relevant conduct. Because this relevant conduct did not increase the base offense level from that calculated using only the drug amounts alleged in the counts to which the defendant pleaded guilty, the court determined that no ruling on the objection was necessary. The court sentenced the defendant to 84 months of imprisonment on each count to be served concurrently, and the judgment was filed June 1, 2001. No appeal was taken from the conviction or sentence.
A district court may grant relief under § 2255 if it determines that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. "Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994) (citation omitted). When a petitioner "fails to raise an issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he establishes either cause excusing the procedural default and prejudice resulting from the error, or a fundamental miscarriage of justice if the claim is not considered." United States v. Cox, 83 F.3d 336, 341 (10th Cir.1996); see also United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995) (citation omitted). Put another way, "[a]n attorney's error provides cause to excuse a procedural default only if the error amounts to constitutionally ineffective assistance of counsel." Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir.1996) (citations omitted), cert. denied, 519 U.S. 1134, 117 S.Ct. 1000, 136 L.Ed.2d 879 (1997).
The court must hold an evidentiary hearing on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir.1995). The burden is with the defendant to allege facts which, if proven, would entitle him or her to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir.1995), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). "[T]he allegations must be specific and particularized, not general or conclusory." Id. The court finds that a hearing on the defendant's motion is not necessary because the materials already in the record conclusively show that the defendant is not entitled to relief on his claims. The court denies the defendant's motion for an evidentiary hearing.
As amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 22551 establishes a one-year limitations period for federal prisoners filing § 2255 motions. United States v. Hurst, 322 F.3d 1256, 1259 (10th Cir.2003). When a defendant does not pursue a timely appeal to the court of appeals, the conviction and sentence become final and the one-year limitations period begins running upon the expiration of the time for filing the appeal. Kapral v. United States, 166 F.3d 565, 577 (3d Cir.1999). The defendant here filed his § 2255 motion more than two years after the expiration of the limitations period. The defendant does not advance any allegations that would warrant the application of equitable tolling in this case. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) ( ). The motion is time-barred unless the defendant has advanced a claim based on a right initially and newly recognized by Supreme Court and made retroactively applicable to cases on direct review. See 28 U.S.C. § 2255 [¶ 6](3) "[E]very circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255 [¶ 6](3)." Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir.2004) (, )cert. granted, ___ U.S. ___, 125 S.Ct. 607, 160 L.Ed.2d 456 (2004). For reasons discussed below, the court finds that the defendant's asserted Sixth Amendment right as recognized in Blakely is not retroactive. Thus, the defendant's motion is untimely.
Subsequent to the parties' filings, the Supreme Court issued its decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), holding that the principles enunciated in Blakely applied to the United States Sentencing Guidelines ("guidelines") making their mandatory enforcement unconstitutional, because the guidelines do not comply with Sixth Amendment requirements. The Court spelled out:
Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.
___ U.S. at ___, 125 S.Ct. at 756. The Court, however, preserved the guideline sentencing scheme by severing those provisions of the Sentencing Reform Act that made the guidelines mandatory, and consequently, the guidelines are now "effectively advisory," ___ U.S. at ___, 125 S.Ct. at 757, and the standard of appellate review is no longer de novo but reasonableness. As modified, the Act now "requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp.2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see 3553(a) (Supp.2004)." Id.
The Supreme Court in both Blakely and Booker held that Sixth Amendment rights are not implicated when a judge sentences based on facts admitted by the defendant. Booker, ___ U.S. at ___, 125 S.Ct. at 755; Blakely, 542 U.S. at ___, 124 S.Ct. at 2537. By his stipulation in the plea agreement, the defendant essentially admitted that the firearm enhancement applied to him, in other words, that he possessed a firearm in connection with the offenses. Using only the amounts of cocaine base to which the defendant admitted in his guilty plea, the court would arrive at the same base offense level of 26 that was used in determining the defendant's guideline sentence. In short, the defendant's sentence did not exceed the maximum authorized by the facts established through the defendant's admission or plea of guilty and, therefore, did not violate any Sixth Amendment right.
Even assuming the defendant had an arguable claim for a Sixth Amendment violation, his motion would be untimely because the Tenth Circuit as well as other circuit courts have rejected all attempts to apply retroactively in § 2255 proceedings the constitutional rights first recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and subsequently extended in both Blakely and Booker. See United States v. Leonard, 120 Fed.Appx. 759, 2005 WL 139183 (10th Cir.2005) ( ); United States v. Price, 118 Fed.Appx. 465, 2004 WL 2905381 (10th Cir.2004) ( ); Leonard v. United States, 383 F.3d 1146, 1148 (10th Cir.2004) ( ); United States v. Mora, 293 F.3d 1213, 1219 ...
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