The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge
Petitioner, Barbara Grams, moves pursuant to 28 U.S.C. § 2255
to vacate, set aside or correct a sentence imposed on September
8, 2003 on the grounds that i) her sentence violated her sixth
amendment right to a trial by jury as defined in Blakely v.
Washington, 124 S. Ct. 2531 (2004) as clarified in United
States v. Booker, 125 S. Ct. 738(2005); ii) her attorney failed
to provide effective assistance in that he did not make a
Blakely Booker argument on her behalf at the time of
sentencing; and iii) the results of three civil proceedings in
which the victims of the crime recovered at least $530,000 were
not disclosed in the criminal trial. I. Background
On June 13, 2002 a federal grand jury issued a one-count
indictment charging Chris Rutland and petitioner with conspiracy
to commit mail fraud and wire fraud, contrary to
18 U.S.C. §§ 1341 and 1343, in violation of 18 U.S.C. § 371. Rutland had
served as the investment adviser of Helen Constans from 1989
until approximately 2001. Constans, a widow born in 1912, lived
alone in Jackson Heights, New York from the early 1970s, when her
husband died, until September 1996 when she was hospitalized and
diagnosed with senile dementia. A niece secured a residence for
her at a nursing home in Chatham, New Jersey. Throughout this
period Rutland, with whom petitioner had a romantic relationship,
continued to take charge of Constans's assets.
Rutland and petitioner transferred ownership of Constans's
investment accounts to petitioner and by means of forged
documents transferred a life insurance annuity from Constans to
petitioner. They used these assets to build a house for
themselves in Arizona, to open a retail home furnishing store,
and to purchase automobiles.
On the basis of evidence of these thefts on March 21, 2003 a
jury returned guilty verdicts against both Rutland and
petitioner. The court sentenced petitioner on September 8, 2003.
The order of conviction was filed on September 9.
The court applied the 1998 edition of the Guidelines Manual by
reason of ex post facto concerns. The Base Offense Level
was 6. To this were added 10 levels by reason of the fact that
the losses petitioner attempted to inflict were greater than the
actual losses, specifically intended losses of $637,946. This
exceeded $500,000 but was less than $800,000 resulting in the 10
level increase. Two levels were added because the offense
involved more than minimal planning and another two levels were added because the victim was a vulnerable
victim. The resulting Total Offense Level of 20 called for a
Guideline sentencing range of 33 to 41 months.
The court sentenced petitioner to a term of thirty-three months
and supervised release for a period of three years. The court
also ordered petitioner to pay restitution of $553,867.72.
Petitioner did not appeal either her conviction or sentence.
A. Blakely-Booker Issues: Petitioner contends that because
the findings that were the basis for the 10 levels and the two
two level enhancements were found by a judge on a preponderance
of the evidence standard and not by a jury beyond a reasonable
doubt, she was deprived of her Sixth Amendment right to a trial
by jury. She relied in her petition on Blakely (decided on
August 23, 2004), but after her petition was originally filed on
September 7, 2004, the Supreme Court decided Booker on January
12, 2005. Addressing a Washington State sentencing plan, the
Supreme Court in Blakely held that a sentencing judge could
enhance a sentence only based on facts reflected in the jury
verdict or admitted by the defendant. 124 S. Ct. at 2537.
Booker applied Blakely's holding to the Federal Sentencing
Guidelines, 125 S. Ct. 738, 749.
In Booker the Court held that the provision of the federal
sentencing statute that makes the Guidelines mandatory is
unconstitutional. The Court severed that provision from the
statute, making the balance of the Guidelines system advisory. As
a result of this decision a sentencing court is required to
consider the Guidelines ranges but may tailor the sentence in
light of other statutory concerns as well. The procedure that the
court followed when sentencing petitioner would not pass
constitutional muster today. The question becomes whether Booker (which replaces any
effect Blakey might have had on petitioner's sentencing) should
apply retroactively to her § 2255 claim. In general to benefit
from retroactive effect petitioner would have to show: (i) that
Booker announced a new rule of criminal procedure and that the
new rule constituted a "watershed rule of criminal procedure
implicating the fundamental fairness and accuracy of the criminal
proceeding." Beard v. Banks, 124 S. Ct. 2504, 2513 (2004).
There is no doubt that Booker announced a new rule of
criminal procedure. The Court of Appeals for the Third Circuit
has recently held, in accordance with the other courts of appeals
that have ruled on the question, that Booker does not announce
a watershed new rule of criminal procedure, and therefore does
not apply retroactively. Lloyd v. United States, 2005 WL
1155220, at 1, 4 (3d Cir. May 17, 2005). In the words of the
Court of Appeals, "Booker does not apply retroactively to
initial motions under § 2255 where the judgment was final as of
January 12, 2005, the date Booker issued." In light of this
ruling petitioner's Blakely-Booker contention lacks merit.
B. Ineffective Assistance of Counsel: Petitioner next
advances the argument that her trial counsel was ineffective for
failing to raise a Booker-type contention at the time of
Prior to petitioner's sentencing in 2003, the Supreme Court had
decided Apprendi v. New Jersey, 530 U.S. 490 (2000) which
established that, at a sentencing, a judge could enhance a
sentence based on facts not admitted by the defendant or found by
a jury, so long as the enhancement did not increase the
defendant's sentence beyond the prescribed statutory maximum. The
sentence imposed upon petitioner was within the parameters
established by Apprendi because it was within the statutory
maximum. Petitioner's counsel was hardly deficient for failing to urge a position that had been rejected
by the Supreme Court and the Court of Appeals. He could hardly
have been expected to anticipate the redefinition of "statutory
maximum" that occurred in Blakely and Booker. Despite the
apparent lack of merit to such a contention petitioner's attorney
might have raised it, as some other attorneys did, in the hope
that the reasoning of Appendi might be extended to sentencing
protocols or Guidelines, but in light of the persuasive authority
rejecting such an extension, it was not unreasonable to fail to
advance what seemed at the time to be an untenable position.
Further, petitioner has not established prejudice by the
failure to apply Booker. The Court in that case emphasized that
a sentencing court is required to consider the Guidelines ranges.
It emphasized Congress's concern that sentencing be uniform
throughout the United States, which suggests that a district
judge, in the exercise of his discretion, impose a sentence
within the Guidelines range or within a range permitted by a
Guidelines departure, unless there is a compelling reason to do
otherwise. Each of the factors which contributed to petitioner's
Guideline score were serious ones and well established. There is
little doubt that in the exercise of its discretion the court
would have found no reason to impose a lighter sentence than the
one imposed. The offense was ...