JOSEPH HOOD, District Judge
Defendant, Harold Dean McCarty, pro se, filed a habeas corpus petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence [Record No. 133]. In response, the plaintiff filed a motion to dismiss the petition as tardy [Record No. 137] and the defendant filed a reply [Record No. 139]. The matter is now ripe for decision.
On July 21, 1999, the defendant was indicted with charges of possession with intent to possess cocaine, using and carrying a firearm during and in relation to a drug trafficking offense, and possession of a firearm by a felon. The defendant pleaded guilty to all three counts on November 2, 1999, and was subsequently sentenced to a total of one hundred eighty-one months imprisonment. The defendant did not appeal the sentence.
On January 18, 2005, the defendant filed a habeas corpus petition to set aside or correct his sentence. In the petition, the defendant argues that his sentence should be set aside or modified because he received ineffective assistance of counsel. The defendant also argues that pursuant to Apprendi and Blakely, the sentencing procedures utilized in calculating the sentence violated his right to due process of law and to a jury finding of the essential facts upon which the sentencing decision was made.
The government responds that the motion should be dismissed because it was filed beyond the one-year filing period provided for in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The Court agrees.
AEDPA provides:
A 1-year period of limitation shall apply to a motion under this section. 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. The defendant's judgment of conviction was final on February 17, 2000, and, thus, the filing deadline was February 17, 2001. The defendant did not file the present motion until January 18, 2005, nearly four years after the established deadline.
The defendant admits that it has been well over a year since the judgment of conviction was final, but he argues that the motion is timely because subsection (3) provides that the one year deadline begins on "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." The defendant asserts that the present petition was filed within one year of the Supreme Court's decision in
Blakely v. Washington, ___ U.S. ___,
124 S.Ct. 2531 (2004), which the defendant argues created the right to have a jury find the essential facts for federal sentence enhancements.
The defendant fails to recognize that the exception in § 2255(3) "limits its application to decisions of the Supreme Court in which new rights are recognized and explicitly made retroactive to cases on collateral review." Nichols v. United States, 285 F.3d 445, 447 (6th Cir. 2002) (emphasis added). To the extent the defendant seeks to utilize § 2255(3) for any new "right" established by Blakely, the Court agrees with the numerous courts within this Circuit that have held that Blakely is not retroactive. Spiridigliozzi v. United States, No. 02-1812, 2004 WL 2671719, at *9 (6th Cir. Nov. 15, 2004) (stating in dicta that "like the Supreme Court's decision in Apprendi, it is unlikely Blakely would apply retroactively to matters addressed via 28 U.S.C. § 2255"); Patterson v. United States, No. 96-CR-80160-DT-01, 2004 WL 1615058, at *4 n. 3 (E.D. Mich. July 4, 2004) (denying petition because it was filed after the one-year filing deadline and stating that "[b]ecause Blakely is in fact an extension of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and because the Supreme Court has already decided that Apprendi is not applied retroactively, Petitioner cannot benefit from the Blakely decision").
Further, United States v. Booker, ___ U.S. ___, 125 S.Ct. 2531 (2004), not Blakely, is the appropriate case for the proposition the defendant advances because Blakely dealt with state sentencing mechanisms, while Booker extended Blakely's holding to the federal sentencing guidelines. Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005). The Sixth Circuit, however, has also held that Booker is not to be retroactively applied to cases on collateral review. Id. at 857 ( Booker . . . does not apply retroactively to cases already final on direct review"); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) (stating that for purposes of cases on collateral review, " Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005"); Tuttamore v. United States, 2005 WL 234368, at *1 (N.D. Ohio Feb. 1, 2005) (Order) (holding that "[t]o the extent that petitioner relies on Booker, he cannot . . . prevail, because the decision in Booker is not retroactive for purposes of § 2255 collateral attacks"). Thus, the defendant's petition is not timely pursuant to § 2255(3) using the recent authority of Booker or Blakely.
Because the one-year filing period is a limitation period instead of a jurisdictional device, courts have equitably tolled the requirement in rare circumstances. When deciding whether to toll the limitation period, the Court looks at the following factors:
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.
Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001).
In the case at hand, the defendant failed to express why the petition was filed more than four years after the deadline, except to state that the authority upon which the petitioner relies was just recently decided by the Supreme Court. As stated earlier, in the Sixth Circuit, Booker and Blakely are not to be applied retroactively for cases on collateral review. Consequently, the defendant has not adequately explained the reason for the delay.
Accordingly, and for the foregoing reasons, IT IS HEREBY ORDERED:
(1) That the plaintiff's motion to dismiss [Record No. 137] be, and the same hereby is, GRANTED; and
(2) That the defendant's petition to vacate the sentence [Record No. 133] be, and the same hereby is, DISMISSED and STRICKEN FROM THE ACTIVE DOCKET.
No certificate of appealability shall issue a no reasonable jurist could reach a contrary conclusion.
JUDGMENT
In accordance with the Order of even date and entered contemporaneously herewith, IT IS HEREBY ORDERED:
(1) That this action be, and the same hereby is, DISMISSED AND STRICKEN FROM THE ACTIVE DOCKET.
(2) That all pending motions be, and the same hereby are, DENIED AS MOOT.
(3) That all scheduled proceedings be, and the same hereby are, CONTINUED GENERALLY.
(4) That this Order is FINAL AND APPEALABLE and THERE IS NO JUST CAUSE FOR DELAY.