Puerto Rico Association of Criminal Defense Lawyers

Peter Goldberger on Dodd and Filing 2255 with Blakely/Booker Claims

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.

Campbell v. U.S., No. 02-2387 (1st Cir. August, 25, 2004)

In Campbell v. United States, slip op. No. 02-2387 (1st Cir. August 25, 2004) (not for publication), the Court, in denying a Certificate of Appealability to one who had his 2255 motion denied, stated, in part, as follows:

Finally, Campbell is not entitled to a COA to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). On appeal, this court held that there was no Apprendi violation because Campbell was sentenced below the statutory maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C). In his § 2255 motion, Campbell argued that appellate counsel should have argued that Apprendi was violated because Campbell's base offense level under the sentencing guidelines was enhanced based on the drug quantity. He has now filed an addendum to his COA memorandum in which he asks that Blakely "be applied in evaluating the arguments which he has placed before the court." Notice of Supplemental Authority, p. 1.

This case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review. Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. See United States v. Riggs, 347 F.3d 17, 20 (1st Cir. 2003), cert. denied, __ U.S.__, 124 S.Ct. 1095 (2004). Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because "First Circuit jurisprudence on this point ha[d] been well established." Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel. [1]

Campbell's request to proceed IFP is granted, but his request for a COA is denied. The appeal is terminated.

[1] To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.

While this is an unpublished opinion, and denied appellant the relief he sought, it is notable that the Court never states Blakely does not apply to the federal sentencing guidelines. Instead, it talks about appellant having to await for the Supreme Court to hold that Blakely applied retroactively to cases on collateral review, and not even if Blakely is first held to apply to the federal sentencing guidelines.