APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 04-cv-03687 District Judge: The Honorable Joseph E. Irenas
The opinion of the court was delivered by: Barry, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) April 7, 2005
Before: BARRY, AMBRO, and GREENBERG, Circuit Judges
All courts of appeals to have considered the issue of whether the rule of law announced in United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005), applies retroactively to prisoners who were in the initial § 2255 motion stage as of the date that Booker issued have concluded that it does not. We now join those courts.
Appellant Garry D. Lloyd was charged with bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, and was convicted by a jury. When determining Lloyd's sentence, the District Court found facts, under a preponderance of the evidence standard, that had not been found by the jury, including (1) that Lloyd had engaged in more than minimal planning; (2) that Lloyd had caused a financial loss of more than $120,000 but less than $200,000; and (3) that Lloyd had committed an obstruction of justice. Application of the Federal Sentencing Guideline enhancements called for by these fact-findings resulted in a total offense level of 17 and, given Lloyd's criminal history category of V, a Guideline imprisonment range of forty-six to fifty-seven months. The District Court sentenced Lloyd, as relevant here, to fifty months imprisonment, followed by five years of supervised release. We affirmed the judgment. See United States v. Lloyd, No. 02-2394, 58 Fed. Appx. 928 (3d Cir. 2003). Lloyd did not seek a writ of certiorari, and his conviction became final on May 6, 2003.
On June 24, 2004, the Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004). The Court held that Washington State's determinate sentencing scheme, a scheme similar to the Federal Sentencing Guidelines, violated the Sixth Amendment right to a jury trial. Id. at 2538. Blakely's reasoning was that judges were imposing sentences that were not based solely on facts reflected in the verdict of the jury or admitted by the defendant, and were using a preponderance of the evidence standard to find the facts necessary to that imposition. Id. at 2536-39.
On August 3, 2004, Lloyd filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He argued that the facts supporting the enhancements he received were not found by a jury beyond a reasonable doubt and, thus, that the sentence imposed was in violation of Blakely. Moreover, he argued, although his motion was filed more than a year after his conviction became final, and therefore would otherwise be barred by the one-year limitation period of § 2255, Blakely created a new right. As such, Lloyd reasoned that the one-year period should run from the date of the Blakely decision, thereby rendering his motion timely. See 28 U.S.C. § 2255 para. 6(3).
The District Court disagreed, and dismissed the § 2255 motion. Blakely, the Court explained, did not rule that the Federal Sentencing Guidelines were unconstitutional, but even if it had done so, there had been no determination, as is required under § 2255 para. 6(3), that Blakely applies retroactively to cases on collateral review. Booker, of course, had yet to be decided.
Lloyd now appeals, post- Booker, to this Court. The District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a one-year period of limitation applies to a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255. See 28 U.S.C. § 2244(d)(1). Section 2255 states, in relevant part, that the limitation period shall run from the latest of: "(1) the date on which the judgment of conviction becomes final... [or] (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255 para. 6. Because Lloyd concededly filed his motion more than a year after his conviction became final, his motion ...