On Monday the Supreme Court decided Dodd v. United States, No. 04-5286 (June 20, 2005) holding that the 1 year limitations period under 2255(3) "begins to run on the date on which this Court 'initially recognized' the right asserted in an applicant's motion, not the date on which that right was made retroactive"
Peter Godlberger, through a post at BOPWatch as well as his comment at Sentencing Law and Policy here, has alerted to the importance of Dodd to persons whose sentences became final before Blakely v. Washington was decided on June 24, 2004. I'm reproducing here Peter's comments at Sentencing Law and Policy:
Dodd has major and immediate implications for the AEDPA statute of limitations on Blakely/Booker claims. I would emphasize that the "newly recognized right" in question was more likely announced in Blakely than in Booker, so the year is more likely (under Dodd) to run from the date of Blakely than from the date of Booker next January. Honestly, it's hard to see how Booker announced any "new right" at all (although many circuits have more or less said it did, for purposes of analyzing retroactivity under Teague v Lane, a related but not necessarily identical question, even in the cockamamie sense that the expression "new rule" is used for Teague v Lane purposes); what was *new* in Booker was the *remedy* not the "right" or the "rule," IMHO. Be that as it may, the only sensible advice at this point, it seems to me, for any federal prisoner whose conviction became final more than a year ago and whose sentence might be mitigated if Booker were applied to him/her, and who has not previously filed a 2255 motion, is to file a 2255 on or before 6/24/05 - [three] days from now! The motion doesn't have to be in polished form, just to get something in. For a pro se prisoner, depositing it in the prison legal mailbox counts as filing, if the motion says that's what the prisoner is going to do. It can be amended to comply with formal requirements, at least (I'm leaving wiggle room here for how Mayle may come out). In all likelihood, the courts aren't going to hold the Apprendi/Ring/Blakely/Booker "rule" retroactive no matter when you file, but just in case there's no reason to blow the statute of limitations unnecessarily, too.
-- Peter Goldberger, Ardmore, PA
So you have been warned now.