The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
Petitioner Steadman Francis ("Petitioner"), a federal prisoner
proceeding pro se, files this petition seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2255. In his petition, Petitioner
moves to vacate, set aside or correct his sentence on the grounds
that the court violated Petitioner's jury trial right under the Sixth Amendment and his right to due process under the
For the reasons set forth in this opinion the Petitioner's
habeas corpus relief is denied.
On January 20, 2002, a jury found Petitioner guilty of
conspiracy to import more than 500 grams of cocaine into the
United States from Jamaica in violation of 21 U.S.C. § 963. In
May, 2002, the Honorable William G. Bassler sentenced Petitioner
to a term of 151 months' imprisonment to be followed by a
five-year period of supervised release, and a fine of $3,000.
Petitioner filed a timely appeal of his sentence and the Third
Circuit affirmed the conviction and sentence on July 16, 2003.
United States v. Steadman, No. 02-2581 (3d. Cir. July 16,
2003). Petitioner did not seek a writ of certiorari and his
conviction became final on October 16, 2003. Petitioner now
challenges his sentence based on 28 U.S.C. § 2255.
28 U.S.C. § 2255 provides relief to a federal prisoner seeking
release from incarceration on any one of the following grounds:
(1) the imposed sentence violates the Constitution or laws of the
United States, (2) the court did not have jurisdiction to impose
the sentence, (3) the sentence exceeds the maximum authorized by law, or (4) the sentence is otherwise
subject to collateral attack. See 28 U.S.C. § 2255. Title 28,
section 2255 of the United States Code provides for a one-year
period of limitation on a motion to vacate, set aside, or correct
a sentence. The limitation period shall run from the latest of:
"(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws
of the United States is removed, if the movant was prevented from
making a motion by such governmental action; (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; or (4) the date on which the facts supporting the claim
or claims presented could have been discovered through the
exercise of due diligence." 28 U.S.C. § 2255.
A petition for habeas relief under section 2255 will be granted
"only if the sentence results in a `fundamental defect which
inherently results in a complete miscarriage of justice' or `an
omission inconsistent with the rudimentary demands of fair
procedure.'" U.S. v. Cannistraro, 734 F.Supp. 1110, 1119
(D.N.J. 1990) (quoting Hill v. United States, 82 S.Ct. 468, 471
(1962)). B. Petitioner's Claims Are Governed by United States v.
Petitioner argues that the sentencing court erred in its
application of the United States Sentencing Guidelines by
imposing the following upward adjustments: 4 points for his role
in the offense, 2 points for committing perjury at his trial and
2 points for the use of minors. Relying on the Supreme Court's
holding in Blakely v. Washington, 124 S.Ct. 2531 (2004),
Petitioner argues that such enhancements violated his Sixth
Amendment right to have a jury determine beyond a reasonable
doubt the facts used to enhance his sentence.
As an initial matter, the arguments raised by Petitioner are
governed by United States v. Booker, 125 S.Ct. 738 (2005). In
Blakely, the Supreme 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. See Lloyd v. United States, 407 F.3d 608, 610
(3d. Cir. 2005) petition for cert. filed (Aug. 5, 2005) (No.
05-5769). The Supreme Court, however, made it explicitly clear
that its holding in Blakely did not address the Federal
Sentencing Guidelines. Blakely at 2538, FN 9. It was not until
its decision in United States v. Booker on January 12, 2005,
that the Supreme Court concluded its holding in Blakely
extended to the Federal Sentencing Guidelines. Id. at 611
citing Booker, 125 S.Ct. 756, FN1.
C. United States v. Booker Is Not Retroactively Applicable
to Cases on Collateral Review
Following in the footsteps of all other courts of appeals to
have considered the issue, the Third Circuit recently held in
Lloyd v. United States, 407 F.3d 608 (3d. Cir. 2005), that the
rule of law announced in Booker is a new rule of criminal
procedure that is not retroactively applicable to cases on
collateral review. The Third Circuit examined the issue under the
Supreme Court's ruling in Teague v. Lane, 109 S.Ct. 1060
(1989), which held that "[u]nless [it falls] within an exception
to the general rule, [a] new constitutional rule? of criminal
procedure will not be applicable to those cases which have become
final before the new [rule is] announced." Teague at 1075.
As in Lloyd, the Petitioner's judgment became final prior to
the Supreme Court's decision in Booker. Petitioner's conviction
became final on October 16, 2003, 90 days after entry of the
judgment by the Third Circuit affirming his conviction and
sentence. See Kapral v. United States, 166 F.3d 565, 572 (3d.
Cir. 1999); see also 28 U.S.C. § 2101(c). This date is nearly
fifteen months before the Booker decision on January 12, 2005.
Booker would therefore have to be given retroactive effect ...