Valentine v. U.S.

Decision Date14 May 2007
Docket NumberNo. 04-2116.,No. 05-1877.,04-2116.,05-1877.
PartiesJimmy Ray VALENTINE (04-2116); Kenneth Jerome Valentine (05-1877), Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Jennifer L. Swize, Jones Day, Washington, DC, Timothy M. Holloway, Taylor, Michigan, for Appellants. Phillip J. Green, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Jennifer L. Swize, Lawrence D. Rosenberg, Jones Day, Washington, DC, Timothy M. Holloway, Taylor, Michigan, for Appellants. Brian K. Delaney, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MARTIN and COOK, Circuit Judges; BUNNING, District Judge.*

COOK, J., delivered the opinion of the court, in which BUNNING, D.J., joined. MARTIN, J. (pp. 339-52), delivered a separate opinion concurring in part and dissenting in part.

OPINION

COOK, Circuit Judge.

Jimmy Ray and Kenneth Valentine were convicted of conspiring to possess and distribute cocaine powder and crack cocaine. They now raise numerous challenges to their convictions pursuant to 28 U.S.C. § 2255. The Valentines, jointly and severally, make a number of arguments based on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Largely for reasons this court articulated in Humphress v. United States, 398 F.3d 855 (6th Cir.2005), these claims fail. Petitioners also make a number of ineffective-assistance claims, all but one of which lack merit. On that ground, we reverse and hold that Jimmy Ray Valentine is entitled to an evidentiary hearing to determine whether his trial counsel thwarted his efforts to accept a plea bargain. We affirm the district court on all other grounds.

I. Background
A. Jimmy Ray Valentine

Jimmy Ray was convicted in February 2000 of conspiracy to possess with intent to distribute cocaine and cocaine base. His 292-month sentence resulted from the district court's finding him responsible for at least 1.5 kilograms of cocaine base. Jimmy Ray appealed his sentence, arguing, inter alia, that he should be resentenced in light of the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This court rejected that argument and affirmed his conviction, United States v. Valentine, 70 Fed.Appx. 314 (6th Cir. 2003), which became final on October 20, 2003.

The following year, Jimmy Ray moved for relief under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. While his motion was pending in the district court, Jimmy Ray moved for leave to amend his petition to include an argument based on the intervening decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court denied him leave to amend, concluding that Blakely did not apply to defendants on collateral review. The district court also denied his ineffective-assistance claims. Jimmy Ray then filed a notice of appeal and applied for a certificate of appealability, which the district court denied. While his application was pending, the Supreme Court announced its decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to which Jimmy Ray directed this court's attention pursuant to Fed. R.App. P. 28(j). This court then granted a certificate of appealability on both his ineffective-assistance arguments and his Booker claim.

B. Kenneth J. Valentine

Kenneth was tried with his brother Jimmy Ray and six other defendants, and was convicted of conspiracy to possess with intent to distribute cocaine base. Kenneth was sentenced to 292 months, predicated on the district court's finding that at least 1.5 kilograms of cocaine base were involved in the offense. Kenneth appealed, asserting, inter alia, arguments based on Apprendi and ineffective assistance of counsel. This court rejected his appeal in 2003, Valentine, 70 Fed.Appx. at 314, and his conviction became final on January 26, 2004. Following the Supreme Court's issuance of Booker, Kenneth filed a motion pursuant to 28 U.S.C. § 2255, which the district court denied. Kenneth then appealed, and this court granted a certificate of appealability, allowing Kenneth to raise his ineffective-assistance and Booker claims.

II. Apprendi/Blakely/Booker
A. Procedural Issues

Although Jimmy Ray and Kenneth both rely on Booker to challenge aspects of their sentences, their cases arrive in different procedural postures. The merits of Kenneth's Booker challenge are properly before us, but Jimmy Ray's case arrives in the procedural posture of a denied motion for leave to amend. This distinction is irrelevant, however, because the district court based its ruling on the legal conclusion that Jimmy Ray's proposed amendment to include a Blakely argument would be futile as Blakely was inapplicable on collateral review, a conclusion we review de novo. Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000). The issue in both cases is essentially the same: Kenneth is entitled to relief if Booker is applicable to his case on collateral review, and Jimmy Ray is entitled to amend his petition to include a Booker argument if Booker applies on collateral review. Were Booker applicable to their cases, both Valentines state cognizable Booker claims entitling them to resentencing.

B. Booker Is a New Rule of Criminal Procedure: Jimmy Ray and Kenneth

Jimmy Ray and Kenneth both contend that the district court erred and that Booker applies to their cases on collateral review because Booker did not announce a "new rule" of criminal procedure. Blakely and Booker were mere applications of Apprendi, they argue, and not "new rules" for purposes of collateral review of their convictions, which became final after Apprendi.

In most instances, defendants seeking collateral relief may not rely on new rules of criminal procedure announced after their convictions have become final on direct appeal. Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court announced a three-step analysis for determining when a new procedural rule will apply retroactively to cases on collateral review. As the Supreme Court explained in Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (internal citations omitted):

First, the court must determine when the defendant's conviction became final. Second, it must ascertain the "legal landscape as it then existed," and ask whether the Constitution, as interpreted by the precedent then existing, compels the rule. That is, the court must decide whether the rule is actually "new." Finally, if the rule is new, the court must consider whether it falls within either of the two exceptions to nonretroactivity.

The Beard Court further explained that the second step of the Teague analysis asks "whether the [relevant] rule . . . was dictated by then-existing precedent— whether, that is, the unlawfulness of [petitioners'] conviction[s] was apparent to all reasonable jurists." Id. at 413, 124 S.Ct. 2504 (internal citations omitted). Jimmy Ray's and Kenneth's convictions became final after Apprendi and prior to Blakely. Our Humphress decision addressed Booker's retroactivity, however, and held that Booker does not apply retroactively to cases on collateral review. 398 F.3d at 860-63. The Valentines attempt to distinguish their case, however, on the ground that Humphress's conviction became final prior to Apprendi whereas their convictions became final after Apprendi, but before Blakely and Booker.1

But this argument ignores several key facts about the Humphress decision. First, the Humphress court actually decided that Booker was not dictated by Blakely, and therefore Booker created a "new rule" that could not be raised by defendants whose convictions became final at any time prior to Booker's January 12, 2005, issuance. 398 F.3d at 860-62. If Booker was a new rule despite Blakely, it follows that it was a new rule despite Apprendi. Put simply, the timing of Apprendi had no bearing on this court's decision in Humphress.

Second, the Humphress court pointed out that dissents in Booker made clear that Booker's result was not preordained by Blakely. See id. at 861 (citing Booker, 543 U.S. at 334, 125 S.Ct. 738 (Breyer, J., dissenting) (opining that factual distinctions "offer a principled basis" for refusing to extend Blakely and Apprendi to the Federal Sentencing Guidelines)). The views expressed in dissent, as the Humphress court explained, were indicative of the Booker rule's "newness":

Although Justice O'Connor observed that "Washington's scheme is almost identical to the upward departure regime established by 18 U.S.C. § 3553(b) and implemented in USSG § 5K2.0," Blakely, 124 S.Ct. at 2549 (O'Connor, J., dissenting), it was by no means a foregone conclusion that the rule in Blakely rendered the Federal Guidelines unconstitutional, as Justice Breyer's dissent in Booker proves. Booker, 125 S.Ct. at 802-03 (Breyer, J., dissenting).

Id. at 861 n. 2.

Third, the Humphress court also noted that "the differing interpretations of Blakely announced by the United States Courts of Appeals also indicate that not all reasonable jurists believed that the Booker rule was compelled by Blakely." Id. at 861. The Humphress court pointed out that this circuit, in United States v. Koch, 383 F.3d 436 (6th Cir.2004) (en banc), joined the "Second, Fourth and Fifth Circuits in holding that Blakely did not compel the conclusion that the Federal Sentencing Guidelines violate the Sixth Amendment." 398 F.3d at 861 (citing United States v. Mincey, 380 F.3d 102 (2d Cir.2004), United States v. Hammoud, 378 F.3d 426 (4th Cir.2004) (en banc), and United States v. Pineiro, 377 F.3d 464 (5th Cir.2004)). The court went on to explain:

Even those Circuits that have applied Blake...

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