The opinion of the court was delivered by: Sloviter, Circuit Judge
On Request for Permission to File a Second or Successive Habeas Corpus Petition Pursuant to 28 U.S.C. § 2244(b)
Submitted on Motion Under Third Circuit LAR 34.1(a) March 10, 2005
Before: SLOVITER, NYGAARD, and FUENTES, Circuit Judges
Anthony Olopade has filed an application in this court pursuant to 28 U.S.C. § 2244 seeking permission to file a second or successive motion under 28 U.S.C. § 2255 to vacate his sentence. In ruling on that application, we must decide whether the United States Supreme Court's recent decision in United States v. Booker, 543 U.S., 125 S. Ct. 738 (2005), applies to persons seeking permission to file second or successive § 2255 motions. In keeping with the holdings of all the other courts that have addressed related issues, *fn1 we hold that Booker cannot be relied on for that purpose.
In 1998, a jury convicted Anthony Olopade in the United States District Court for the District of New Jersey of conspiracy to import heroin. The District Court thereafter imposed a sentence of 240 months imprisonment. On direct appeal, this court affirmed Olopade's conviction and sentence. United States v. Olopade, 205 F.3d 1330 (3d Cir. 1999) (table).
In 2001, Olopade filed a motion for a writ of habeas corpus under 28 U.S.C. § 2255 in the United States District Court for the District of New Jersey. In that motion, Olopade claimed, inter alia, that (1) his sentence violated the principle established in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the quantity of narcotics was not proven to the jury beyond a reasonable doubt; (2) that the indictment was defective because it failed to allege a drug amount; and (3) that his trial counsel was ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). On April 24, 2003, the District Court entered a memorandum and order denying Olopade's motion; thereafter, this court denied Olopade's request for a certificate of appealability ("COA").
In 2004, relying on the Supreme Court's decision in Blakely v. Washington, 542 U.S., 124 S. Ct. 2531 (2004), Olopade sought this court's authorization under 28 U.S.C. § 2244 to file a second or successive motion to vacate his sentence under 28 U.S.C. § 2255. We denied Olopade's request in an unpublished order dated September 29, 2004.
("Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005."); Gerrish v. United States, 353 F. Supp. 2d 95, 96 (D. Me. 2005) ("Booker... [is] not applicable to cases that were not on direct appeal when [it was] decided."); United States v. Johnson, 353 F. Supp. 2d 656, 658 (E.D. Va. 2005) (finding that Booker does "not apply retroactively on collateral review").
In the wake of the Supreme Court's decisions in Booker, Olopade has yet again sought this court's authorization under § 2244 to file a second or successive habeas corpus motion. In his pro se application titled "Request for Permission to File a Second or Successive Petition in the District Court," which was filed with this court on February 28, 2005, Olopade argues that a second or successive § 2255 motion is appropriate in his case because such a motion would rely on new rules of law that were previously unavailable, i.e., the holdings in Booker. In response, the United States, by way of a letter motion dated March 10, 2005, has asked this court to dismiss Olopade's most recent § 2244 request. *fn2 We will do so.
As we discussed in more detail in our opinion in United States v. Ordaz, 398 F.3d 236, 238-39 (3d Cir. 2005), the Supreme Court held this term in United States v. Booker that "the Sixth Amendment as construed in Blakely does apply to the [Federal] Sentencing Guidelines." Booker, 543 U.S. at, 125 S. Ct. at 746 (Stevens, J.). Booker was decided by two opinions of the Court. In the first opinion, authored by Justice Stevens for a majority of five, the Court reaffirmed the holding in Apprendi that "[a]ny 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," and the Court extended that rule to the Federal Sentencing Guidelines. Booker, 543 U.S. at, 125 S. Ct. at 756 (Stevens, J.). The second opinion, authored by Justice Breyer for a majority of five, focused on the remedy. The Court held that 18 U.S.C. § 3553(b)(1), the provision of the Sentencing Reform Act of 1984 that made the Guidelines mandatory, was incompatible with the Court's constitutional ruling; thus, the Court severed and excised § 3553(b)(1). Similarly, 18 U.S.C. § 3742(e), "the provision that set forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range," was also severed and excised because it ...