The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
This is an action for a writ of habeas corpus pursuant to
28 U.S.C. § 2255 brought by Petitioner Simian Paulk. Petitioner is
currently serving a sentence of 262 months following his guilty
plea to a one count criminal indictment charging conspiracy to
possess with intent to distribute more than 50 grams of cocaine
base in violation of 21 U.S.C §§ 841 and 842. Petitioner argues
that he should be re-sentenced in accordance with United States v. Booker, 125 S. Ct. 738 (2005). Because Booker is not
applied retroactively and this petition was filed in excess of
the one-year period of limitation prescribed in § 2255, the
petition will be denied.
On August 15, 2001, Petitioner pled guilty to a one count
indictment for possession of cocaine base with intent to
distribute. Petitioner's sentencing hearing was held before the
undersigned on May 24, 2002, at which time Petitioner conceded
that he was properly designated a career offender. However,
Petitioner argued for a downward departure of his career status
pursuant to U.S.S.G. § 4A1.3 on the grounds that his criminal
history score was overstated. The Court rejected this argument
and sentenced him as a § 4B1.1 offender for 262 months.
Petitioner then filed a timely appeal on May 30, 2002. On April
29, 2003, the Court of Appeals affirmed the sentence. Petitioner
never sought a writ of certiori from the Supreme Court.
Therefore, Petitioner's judgment became final on July 29, 2003,
ninety days after the Court of Appeals issued its judgment. U.S.
Sup. Ct. R. 13(1).
Petitioner filed this § 2255 petition on July 6, 2005, nearly
two years after his judgment became final. He argues that under
Booker, any fact that increased his sentence must have been
proven to a jury beyond a reasonable doubt. Specifically, Petitioner contends that because his sentence was enhanced due to
his status as a career offender, the determination of that status
should have been decided by a jury rather than the Court. (Pet.
Respondent argues that the petition must be denied because
Petitioner's conviction became final before Booker was decided
and because the Third Circuit has held that Booker is not
applied retroactively. Additionally, Respondent argues that the
Booker decision does not apply to the determination of whether
a defendant is a career offender and, therefore, that
petitioner's argument fails on the merits.
Title 28 U.S.C. § 2255 allows for a prisoner in custody to
petition the sentencing court to correct a sentence which was
imposed in violation of the prisoner's Constitutional rights or
laws of the United States. See 28 U.S.C. § 2255. Here,
Petitioner is claiming a newly recognized constitutional right
under the Supreme Court's decision in United States v. Booker,
125 S. Ct. 738 (2005). In Booker, the holdings in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531 (2004), were extended to the Federal
Sentencing Guidelines. Booker, 125 S.Ct. 756. In Apprendi,
the Supreme Court held that enhancing a sentence beyond the
statutory maximum for factors not found by a jury violated the
Sixth Amendment. 530 U.S. at 490. Similarly, the Supreme Court in
Blakely held that in the state court system under review, any
contested statutory sentencing enhancement beyond the base
offense level, other than the fact of a prior conviction, must be
proven to a jury beyond a reasonable doubt. 542 U.S. at ___,
125 S.Ct. at 2537. In extending those holdings to the Federal
Sentencing Guidelines, the Booker Court held that the Federal
Sentencing Guidelines are effectively advisory rather than
mandatory; district courts are required to consider them but are
not bound to apply them. Id. at 767.
However, the Third Circuit has explicitly held that Booker
does not apply retroactively to cases on collateral review
decided before January 12, 2005. In Lloyd v. United States,
407 F.3d 608 (3d Cir. 2005), the Third Circuit held that although
Booker announced a "new rule of criminal procedure," it was not
a watershed rule "implicating fundamental fairness and accuracy
of the criminal proceeding." Lloyd, 407 F.3d at 612 (internal
quotation and citation omitted).*fn1 Therefore, Lloyd held
that Booker does not apply retroactively to motions under §
2255 where the judgment was final as of January 12, 2005.
407 F.3d at 615-16. Accordingly, Petitioner's Booker claims must be
In any event, the instant petition is not timely. Section 2255
requires that petitions under the statute be filed within one
year from the later of the date of final judgment or "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. Because, Booker does not have
retroactive application, the instant petition should have been
filed by July 29, 2004, one year from the date of that final
judgment. The petition was not filed, however, until July 6, 2005
and is therefore not timely.*fn2
For the reasons expressed in this Opinion, the Court denies
Petitioner's motion for § 2255 relief. The ...