UNITED STTES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGN SOUTHERN DIVISION RTURO HERRER-FLORES, a/k/a rturo Flores-Morales, Petitioner, v. Case No. 1:05-CV-111 (Criminal Case No. 1:03:CR:200) UNITED STTES OF MERIC, HON. GORDON J. UIST Respondent. / OPINION This Court has before it rturo Herrera-Flores ( Petitioner ) Motion Under 28 U.S.C. 2255 To Vacate, Set side, Or Correct Sentence By Person In Federal Custody. Promptly after the filing of a 2255 motion, the Court must undertake a preliminary review of the Motion to determine whether it plainly appears from the face of the motion and the annexed exhibits that Petitioner is not entitled to relief in the district court. Rule 4, Rules Governing 2255 Cases. If so, the Court shall make an order for its summary dismissal. Id. dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. See Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999) (applying Rule 4 to petition filed under 28 U.S.C. 2254). fter undertaking the review required by Rule 4, the Court concludes that Petitioner is not entitled to relief. I. Facts and Procedural History rturo Herrera-Flores operates under several names. He was indicted under one of his false names, rturo Flores-Morales. On October 8, 2003, Petitioner pled guilty to being present in the
United States after deportation subsequent to a conviction for an aggravated felony. 8 U.S.C. 1326(a) and (b)(2). He was represented by an ssistant Federal Public Defender at all times. On December 18, 2003, Judgment was entered sentencing Petitioner to, among other things, 72 months incarceration. Petitioner had 10 days after that date (until January 6, 2003) in which to file an appeal with the Court of ppeals for the Sixth Circuit. Fed. R. pp. P. 4(b), 26(a)(2). Petitioner did not appeal his conviction or his sentence. On February 14, 2005, Petitioner filed a Motion to Set side or Correct his Sentence pursuant to 28 U.S.C. 2255. II. Petition is Untimely First, this matter is barred by the one year statute of limitations. Under 2255, Petitioner must have filed his petition within one year after the date on which his judgment of conviction became final. 28 U.S.C. 2255. The Sixth Circuit has held that when a 2255 movant does not pursue a direct appeal to the court of appeals, his conviction becomes final on the date on which the time for filing such appeal expired. See Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004). Thus, Petitioner had until January 6, 2004, in which to file his petition. Because he did not file his petition until February 14, 2005, the petition was untimely. III. Petitioner Knowingly Entered his Plea of Guilty Second, Petitioner s claim fails on the merits. He claims that he really was not rturo Flores- Morales, but was rturo Herrera-Flores, and that he told his counsel so. He claims that he did not know the difference between illegal reentry and illegal entry. He admits that he is guilty of illegal entry, but he denies that he is guilty of illegal reentry. He claims that he had a permanent resident card. He also claims that he had entered the United States illegally only once, so he cannot be guilty of illegal reentry. He says that he and his counsel were confused. Finally, he claims that this Court illegally enhanced his sentence in violation of the Blakely-Booker line of cases. 2
Petitioner continues to think that he can confuse the Court by using whatever name suits him at a particular time and then outright lie about whether he knew what he was pleading to. The very caption of Petitioner s Presentence Investigation Report and Judgment is entitled: rturo Flores- Morales True Name: rturo Herrera-Flores. Throughout the PSR, Petitioner is referred to by what he acknowledges to be his true name: rturo Herrera-Flores. So no one was fooled in that regard. lso, Petitioner was clearly told the elements of the offense with which he was charged and understood all of the elements of the offense when he pled guilty. nd he admitted the elements: THE COURT: MS. WOODS: THE COURT: MS. WOODS: Would you read the charge to us, please. Yes, Your Honor. The grand jury charges: On or about ugust 6, 2003, in Cass County, in the Western District of Michigan, Southern Division, rturo Flores-Morales, also known as rturo Herrera-Flores, also know as Guadalupe Cuellar, Jr., and also known as Guadalupe Guellar, Jr. You don t have to read all that. Thank you. Being an alien who had previously been convicted of an aggravated felony offense and who was thereafter deported on or about October 27th, 1998, was found to be knowingly and voluntarily in the United States without having obtained the express prior consent of the ttorney General to return or to reapply for admission. Thank you. 3
THE COURT: In order for you to be found guilty of this offense, the government must prove each and every one of the following elements beyond a reasonable doubt: First, that you were not a citizen of the United States. Second, that you were lawfully deported or excluded and deported from the United States; and Third, you reentered the United States without the consent of the ttorney General or an agency with the Department of Justice or you can prove that you did not have to have that consent. In addition, in this case, the government charged that you had previously been convicted of an aggravated felony. felony is a crime that carries a maximum penalty of more than one year in prison. n aggravated felony would include drug dealing. (Plea Tr. at 5-6.) What makes you think you are guilty of this offense, Mr. Flores. First of all, let me ask you some questions. re you an merican citizen, sir? No, Your Honor. I used to have papers, but after my drug conviction, I lost them, and I came back. ll right. But are you a citizen? In other words, have you ever applied for citizenship and been granted citizenship? I m not talking about a green card or proper documents. No. Were you convicted of drug-trafficking in a federal court in Texas prior to having been deported? I did not understand that one. Okay. You said that you were previously convicted for possession with intent to distribute drugs. Is that correct? Yes. nd that was in federal court in Texas somewhere? 4
Yes, sir. nd you served about almost 5 years on that offense. Is that correct? Yes, sir. Okay. nd after that time being served in federal prison, were you then deported from the United States? Yes, sir. nd did you return to the United States without permission from the ttorney General? Yes, sir. (Id. at 15-16.) This Court found at the time of the plea that the plea was knowingly and freely given. (Id. at 18.) Petitioner has produced nothing to indicate anything different. IV. Blakely and Booker are not Retroactive on Collateral Review Third, Petitioner s reliance upon the Blakely-Booker line of cases gets him nowhere. In Blakely v. Washington, U.S., 124 S. Ct. 2531 (2004), the United States Supreme Court held that a Washington state trial judge s enhancement of a defendant s sentence based on the judge s finding of deliberate cruelty violated the defendant s Sixth mendment right to a trial by jury. The decision called into question the constitutionality of both Washington state s sentencing guidelines and the federal sentencing guidelines. On January 12, 2005, the United States Supreme Court decided another case, United States v. Booker, U.S., 125 S.Ct. 738 (2005), that addressed whether the federal sentencing guidelines and enhancement provisions violate a defendant s Sixth mendment rights. In Booker, the Supreme Court held that the Sixth mendment is violated by the mandatory imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant. However, the Court also concluded that the application of the guidelines does not violate a defendant s constitutional rights so long as the guidelines are 5
advisory, rather than mandatory, in nature. Here, Petitioner objects to the enhancement of his sentence. However, for the reasons discussed below, neither Blakely nor Booker is applicable to Petitioner. New procedural rules, such as those set forth in Blakely and Booker, do not apply retroactively to cases on collateral review. In Teague v. Lane, 489 U.S. 288, 310-313, 109 S.Ct. 1060 (1989), the United States Supreme Court held that new constitutional rules of criminal procedure will not apply retroactively to cases on collateral review, unless: 1) the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe; or 2) the new rule establishes a watershed rule of criminal procedure that implicate[s] the fundamental fairness of the trial, without which the likelihood of accurate conviction is seriously diminished. Neither of these exceptions is met here. Furthermore, for a new rule to be retroactive to cases on collateral review, the Supreme Court itself must make the rule retroactive. See Tyler v. Cain, 533 U.S. 656, 662-63, 121 S.Ct. 2478, 2482 (2001); In re Clemmons, 259 F.3d 489, 492-93 (6th Cir. 2001). s the Court explained in Tyler, the Supreme Court is the only entity that can ma[k]e a new rule retroactive. The new rule becomes retroactive, not by the decisions of the lower court or by the combined action of the Supreme Court and the lower courts, but simply by the action of the Supreme Court. Tyler, 533 U.S. at 663, 121 S.Ct. at 2482. Thus, it is not enough that this Court may retroactively apply a new rule of constitutional law or hold that a new rule of constitutional law satisfies the criteria for retroactive application set forth by the Supreme Court in Teague v. Lane. Rather, when the Supreme Court makes a rule retroactive for collateral-review purposes, it does so unequivocally, in the form of a holding. See Tyler, 533 U.S. at 663, 121 S.Ct. at 2482; In re Clemmons, 259 F.3d at 493. 6
Here, the Supreme Court has not expressly declared Booker or Blakely to be retroactive to cases on collateral review. See Booker, 125 S.Ct. at 769 (opinion of Breyer, J.) (expressly extending the holding to all cases on direct review ). Booker itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review. Furthermore, the Court of ppeals for the Sixth Circuit previously has suggested that the Supreme Court has not made Blakely retroactive to cases on collateral review for purposes of the rules governing the filing of successive petitions. See Spiridigliozzi v. United States, No. 02-1812, 2004 WL 2671719 (6th Cir. Nov. 15, 2004) ( it is unlikely Blakely would apply retroactively to matters addressed via 28 U.S.C. 2255 ); see also Regalado, 334 F.3d at 527 (holding that pprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) does not apply retroactively to cases on collateral review); In re Clemmons, 259 F.3d at 492 ( [w]hile this court has applied pprendi to cases on direct appeal, we have not applied its new rule retroactively to cases on collateral review ). Other courts that have recently addressed this issue have held that Blakely and Booker cannot be applied retroactively to cases on collateral review. See McReynolds v. United States, F.3d, 2005 WL 237642 (7th Cir. Feb. 2, 2005) (Booker does not apply retroactively to cases on collateral review); Green v. United States, F.3d, 2005 WL 237204 (2nd Cir. Feb. 2, 2005) (holding that neither Booker nor Blakely applied retroactively to petitioner s collateral challenge under section 2255); In re nderson, F.3d, 2005 WL 123923, *3-4 (11th Cir. Jan. 21, 2005)(denying petitioner s second or successive petition because petitioner could not show that the Supreme Court made Booker retroactive to cases already final on direct review); In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004)(holding that Blakely does not apply retroactively to cases already final on direct review); Gerrish v. United States, F. Supp. 2d, 2005 WL 159642 (D.Me. Jan. 7
25, 2005) (holding that neither Booker nor Blakely apply retroactively to cases on collateral review). Further, the Supreme Court itself has strongly implied that Blakely and Booker should not be applied retroactively. The same day the Supreme Court decided Blakely, the Court also issued its decision in Schriro v. Summerlin, U.S., 124 S.Ct. 2519 (2004), holding that Ring v. rizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), which extended application of pprendi to facts increasing a defendant s sentence from life imprisonment to death, is not retroactive to cases on collateral review. Summerlin, 124 S.Ct. at 2526. Because Blakely and Booker, like Ring, are based on an extension of pprendi, Petitioner cannot show that the Supreme Court has made those decisions retroactive to cases on collateral review. ccordingly, Petitioner's claim fails to satisfy the statutory criteria of 28 U.S.C. 2255. Finally, pprendi, Blakely and Booker do not apply to Petitioner s conviction for drug trafficking, the aggravated felony which enhanced his Offense Level 16 points under the United States Sentencing Guidelines. See lmendarez-torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998); United States v. Copado-Jaramillo, No. 03-5127, 110 Fed. ppx. 518, 522, 2004 WL 2030026, (6th Cir. ug. 31, 2004) ( In the instant case, the sentencing factor that increased Defendant s sentence was a prior conviction... Therefore, this case is excepted from pprendi s and, ergo, Blakely s dictate that a jury must find beyond a reasonable doubt every fact that increases a defendant s sentence beyond the statutory maximum. ) V. Certificate of ppealability Under 28 U.S.C. 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. certificate should issue if Petitioner has demonstrated a substantial showing of a denial of a constitutional right. 28 U.S.C. 2253(c)(2). This Court s dismissal of Petitioner s 8
action under Rule 4 of the Rules Governing 2255 Cases is a determination that the 2255 motion, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of ppeals that an issue merits review, when the court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (it is somewhat anomalous for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm r of Corr. of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was intrinsically contradictory to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal). The Sixth Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must engage in a reasoned assessment of each claim to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner s claims under the Slack standard. Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, [t]he petitioner must demonstrate that reasonable jurists would find the district court s assessment of the constitutional claims debatable or wrong. The Court finds that reasonable jurists could not find that this Court s dismissal of each of Petitioner s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability. 9
Conclusion For these reasons, Petitioner's 2255 Motion (docket #1) is DENIED pursuant to Rule 4 of the Rules Governing 2255 Cases. In addition, a certificate of appealability is DENIED as to each issue raised by Petitioner because he has failed to make a substantial showing of a denial of a constitutional right. Dated: March 1, 2005 /s/ Gordon J. uist GORDON J. UIST UNITED STTES DISTRICT JUDGE 10