U.S. v. RITCHIE

JOHN ROBERTS, Magistrate Judge

The court has now before it the defendant's (Donald Ritchie's) motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 101). Said motion is opposed by the government at docket No. 112; supplemental memorandum by Ritchie at docket No. 118 and government's supplemental opposition at docket No. 122. Ritchie filed a motion to amend at docket No. 160 which was opposed at docket No. 161, and which was granted at docket No. 169. Another motion to amend was filed at docket No. 173, the opposition to which was filed at docket No. 172. That motion to amend was deemed to set forth facts relating to grounds already before the court, and was therefore denied. (Docket No. 180). At the direction of the court Ritchie filed a new statement of grounds for relief at docket No. 192, and the government answered at docket No. 193. Ritchie then filed an opening brief as to ground four of his amended petition. (Docket No. 197; government's opposition at docket No. 198 and notice of additional authority at docket No. 200). Ritchie filed a reply brief at docket No. 201. Oral argument has not been requested and is not deemed necessary. Ritchie made a late filed request for evidentiary hearing at docket No. 202. The requested evidentiary hearing was found unwarranted and said motion was denied. (Docket No. 203) Supplemental briefing on one of Ritchie's claims was ordered at Docket No. 203. Such briefing was filed at docket Nos. 207, 208, 209 and 210. For the reasons that follow, Mr. Ritchie's § 2255 motion should be denied.

BACKGROUND

Ritchie was convicted and sentenced following a jury trial for the crimes of manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1); attempted manufacture of methamphetamine 21 U.S.C. § 846; possession of methamphetamine in violation of 21 U.S.C. § 844(a); and a felon in possession of a firearm in violation of 21 U.S.C. § 922(g). Ritchie was sentenced to serve 292 months in prison. He appealed the merits of his convictions to the Ninth Circuit. The Ninth Circuit affirmed his convictions.

DISCUSSION

The serpentine briefing in this matter does not set forth the factual backdrop of this case in an initial presentation. Rather, the facts are revealed through their integration in the arguments, and often incorporate by reference to other briefing. The court will address the grounds for relief in the order stated at docket No. 192. For the sake of clarity, each such discussion will include the underlying pertinent facts and allegations as gleaned from the patchwork briefing.

I

WAS THERE INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING SEARCH AND SEIZURE ISSUES?

Ritchie alleges that his Sixth Amendment right to effective assistance of counsel was denied because his trial attorney failed to mount an attack against an allegedly illegal search and seizure. On April 28, 1999, agents of the Drug Enforcement Administration arrested Adam Hankins in connection with an investigation into the manufacture of methamphetamine in Anchorage Alaska. Hankins immediately cooperated with agents, telling them that Donald Ritchie taught him how to manufacture methamphetamine. On April 29, 1999, a warrantless search and a subsequent search pursuant to a warrant were conducted at Ritchie's home at 2729 East 17^th Street, Anchorage Alaska. According to the affidavit of Officer Koch, he went to Ritchie's 17^th Street residence to contact him as part of an investigation into the manufacture of methamphetamine. Koch contacted Heather Horner at the residence who informed him that Ritchie lived there but was not at home at that time. According to Koch, Horner then permitted him to walk through the residence to insure that Ritchie was not present. After Koch did so Horner ordered him from the home. Also present at the home was Michelle Alto, whom Koch knew from prior drug contacts. During the warrantless search the police did not seize anything. The subsequent application for a search warrant did not include as part of its support mention of any specific observations made during Koch's walk through. However, in support of probable cause, "Attachment A" of the application incorporated a list of items as being present or expected to be present on the premises.

In Strickland v. Washington, 466 U.S. 668, 687-693 (1984) the Supreme Court sets forth as two pronged test, instructing that in order to prevail on an ineffective assistance of counsel claim a defendant must show that his attorney's representation was both deficient and prejudicial. Judicial scrutiny of counsel's performance is highly deferential, and there is a strong presumption that an attorney's conduct falls within the wide range of reasonable professional assistance. Id. at 689. In order to establish deficient assistance of counsel, a defendant must show that his attorney's conduct fell below an objective standard of reasonableness. Id. at 687-688. In order to satisfy the prejudice prong, the defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Ritchie contends that Koch could not have known about the items listed in "Attachment A" unless it was the result of observations made during the warrantless search. The government makes several counter arguments. The first two counter arguments hinge on the government's contention that no evidence observed in the walk through was mentioned in the application for the search warrant. Lost on the parties, and most notably lost on the government, is that there has been no showing that the initial — warrantless — search was illegal. Indeed, it is undisputed that it was made with the consent of an occupant of Ritchie's residence, namely, Heather Horner. Thus, even if the search warrant application was based in part upon Koch's observations during the walk through search, that search was legal, leaving no basis for suppression fo the subsequent search warrant. Therefore, Ritchie has failed to meet the prejudice prong of Strickland and his motion should be denied as to his claim for ineffective assistance of counsel for failing to mount a challenge to the searches and seizures in question.

Elsewhere in the briefing the government correctly notes that Ritchie has been inconsistent in this motion as to whether the 17^th Street address was his home. If Mr. Ritchie is going to take the tact that it was not, then his ineffective assistance of counsel argument regarding search and seizure fails for lack of standing. He cannot have it both ways.

Additionally, Ritchie claims that his counsel was ineffective for failing to challenge the search warrant under Franks v. Delaware, 438 U.S. 154 (1978) on the grounds that Koch made reckless intentional omissions, without which probable cause for the issuance of the warrant would not have been established. Ritchie posits that the affidavit in support of the search warrant omits the facts that: "(1) Hankins had been awake for five days without sleep and had provided his information immediately following his arrest for methamphetamine; (2) the officers had conducted an unlawful warrantless search of the 17th Avenue residence hours prior to applying for the search warrant. Many of the observations made by the officers as reported in the affidavit were made during the unlawful warrantless entry." This argument is readily dispensed with. First, as discussed supra the warrantless search of Ritchie's home was not illegal. Secondly, assuming Hankins was up for five days, the failure to omit such information does not rise to the level of the Franks requirement for traversing a warrant. That is to say, there were neither false nor misleading statements nor statements made with a reckless disregard for the truth, in the application for the search warrant. Furthermore, Ritchie's reference to Alaska Criminal Rule 37 and the so called "informants privilege" have not been shown to have any bearing on this case. Again, Ritchie's § 2255 motion should be denied as to the claims of ineffective assistance of counsel regarding the searches and seizures.

II

WAS THERE INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING REGARDING DRUG QUANTITIES?

Ritchie argues that his Sixth Amendment right to effective assistance of counsel was denied because his attorney failed to do certain things regarding the drug quantities for which Ritchie was sentenced. According to Ritchie, if his counsel had moved for an evidentiary hearing, as suggested as a possibility in the pre-sentence report, a less severe sentence would have been imposed. That is mere speculation. What likely would have been presented/revealed at such an evidentiary hearing? The court's review of the briefing on this point does not reveal any basis in fact or law supporting Rithcie's contention. Ritchie's "argument" is woefully short of satisfying the Strickland test. Perhaps Ritchie's counsel felt compelled to maintain this ground for relief due to his client's insistence that it be pursued. Regardless, it is completely unsupported. Therefore, Ritchie's § 2255 motion should be denied regarding his claim for ineffective assistance of counsel for failing to request an evidentiary hearing regarding drug quantities.

III

WAS THERE A FAILURE TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL REGARDING THE SUPPRESSION OF STATEMENTS?

Ritchie claims that his counsel was ineffective in connection with the suppression of statements are wholly without merit. There is nothing in the briefing that even comes close to meeting the Strickland standard. Ritchie's argument that his counsel should not have cross-examined a DEA agent who failed to mention, on direct examination, that he had informed Ritchie that "anything he said could be used against him in court" is specious. Nothing under Strickland requires counsel to be a proverbial "Perry Mason". Furthermore, it was sound strategy to try to nail this point down since the burden to show that a motion to suppress should be granted is on the defendant. Moreover, Ritchie's claim that the failure to tape record his statements in violation of Alaska State law makes them involuntary, has no basis in federal law. This being a federal case, Ritchie's State law arguments are of no avail to him. Hence, Ritchie's § 2255 motion in connection with the suppression of statements should be denied.

IV

WAS A CONVICTION OBTAINED OR PUNISHMENT IMPOSED DUE TO FAILURE OF PROSECUTION TO DISCLOSE EVIDENCE FAVORABLE TO DEFENDANT?

Ritchie contends that the prosecution failed to disclose exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963). He submits that Heather Horner told DEA agent McKenzie that one month prior to the search of the 17^th Street residence she kicked Ritchie out of the house, and subsequently rented a room to Mr. James Felty. She also stated to McKenzie that she had forced her way into Felty's locked bedroom, thereupon finding glass wear and chemicals she knew were used for the manufacture of methamphetamine. She stated that she placed those items in a green laundry basket outside Felty's room. These items were later found on a couch at the 17^th Street residence and presented by the government at trial as evidence against Ritchie.

In its court-directed supplemental briefing the government concedes that theses statements were not provided to Ritchie's counsel, and Ritchie contends that if they had been, then appropriate investigation could have been undertaken to show that the 17^th Street address was not Ritchie's residence. The government counters that because of Ritchie's relationship with Horner, (his fiancee and the mother of his child who was present at his arrest in a hotel room, and a witness on his behalf at his suppression hearing regarding his Miranda rights) any statement she made to McKenzie was known to Ritchie. While this argument strikes a note of likely truth, it does not carry the day for the government. Ritchie's pre-trial knowledge of the statements is pure conjecture and without a spec of supporting evidence. Who knows what a given witness told or even remembered to tell a criminal defendant, particularly a witness who law enforcement claimed was connected with drugs? It is as unlikely as it is likely that defense counsel would have known about the information contained in the statements. The issue remains, however, whether these statements were favorable to Ritchie and material to guilt or to punishment. United States v. Bagley, 473 U.S. 667, 674 (1985). An implicit requirement of Brady is that the suppressed evidence might have affected the outcome of the trial or sentencing. Id.

Might Horner's statements have affected the outcome of the trial? The government further argues: "Furthermore, as to whether Ritchie was living at the 17^th Avenue residence, he knew whether he was or not and whether the evidence seized at the residence was his or not. If the statement was not produced it was immaterial to the outcome of Ritchie's case." The question here is one of evidence that might have been presented or otherwise have assisted in presenting or impeaching other evidence at trial. What Ritchie knew about his status in relation to the 17^th Avenue residence is not determinative of materiality of the suppressed evidence, and sufficiency or insufficiency of the evidence is not the touchstone of Brady. Kyles v. Whitley, 514 U.S. 419, 435 n. 8 (1995). The Supreme court instructs:

Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678.

Id. at 434.

Horner's statements to McKenzie were quintessentially exculpatory because they removed culpability from the defendant by shifting it to another person. Additionally, they could have been used to impeach the testimony of Adam Hankins, who testified that Ritchie often cooked methamphetamine at the 17^th Avenue address in April of 1999, and stayed there from time to time sleeping on the couch. This does not necessarily mean, however, that the government's failure to disclose the information constituted a Brady violation. Again, while the government often skates on thin ice in failing to make such disclosures, materiality is requisite to a finding of constitutional infirmity resulting from the failure to produce exculpatory evidence. Id. at 432-436. The court first eliminates Ritchie's claims which are clearly not viable in this regard. His claim that all of the counts were grouped together because jury instruction No. 17 instructed that the allegations in the counts stating that the charged criminal activity occurred "on or about" a certain date meant that the evidence did not have to establish an exact date, and the jury only had to find that the offense was committed "on a date reasonably near the date alleged." Therefore, Ritchie continues, the jury could have considered the evidence seized at the 2729 E. 17^th Avenue in connection with all the counts. This, understandably thin, argument is unpersuasive because the other evidence in the case as to all but count one is such that there it is manifestly clear that the Horner's suppressed statements and their connection to the other evidence in question were not material. More specifically, Horner's suppressed statements and their connection to the other evidence in question do not present a reasonable probability of a different result as defined by the Supreme Court (that the evidentiary suppression "undermines confidence in the outcome of the trial.") Bagley, 473 U.S. at 678.

Count One, however, warrants further discussion. Ritchie contends that the evidence found in the laundry basket at the residence could have served as the basis of his conviction for Count One. But there was also methamphetamine mixed with acetone found in the freezer at the residence. Additionally, methamphetamine and methamphetamine manufacturing equipment were seized from a ford truck at the hotel where Ritchie was arrested, and Hankins testified that the truck belonged to Ritchie. Either the methamphetamine mixed with acetone in the freezer at the residence or the methamphetamine and manufacturing equipment in the truck, or both of them together could have served as the basis for the conviction on Count One. Ritchie's entire argument in this regard hinges not so much on the value of Horner's statements regarding the location of the evidence in the laundry basket when she found it, but rather on the statements' impeachment value as to Hankin's testimony. But this argument fails when placed in context of the complete record. While Horner's statements to agent McKenzie arguably contradict Hankin's testimony — inter alia that Ritchie often slept at the residence and cooked methamphetamine during the time in question — their impeachment value was minimal because they are not necessarily inconsistent with Hankin's testimony. Even if the glass ware were taken by Horner from the room rented by Felty, it might still have belonged to Ritchie. Hankins testified that Ritchie cooked methamphetamine in the closet in that bedroom. Notably, Horner claimed to be the owner of a handgun which agents found in the room Horner claimed she rented to Felty. Furthermore, it was Horner's statements that were susceptible to strong impeachment because of the video tapes seized at the residence showing Ritchie there on April 26 and 27 1999. Moreover, Ritchie's relationship with Horner, including their having had a son together would show a strong bias on her part. That is precisely what the court concluded in denying a motion to suppress by Ritchie, after Horner testified at a hearing on that motion. Thus, there was not a reasonable probability of a different result at trial because it has not been shown that the government's evidentiary suppression "undermines confidence in the outcome of the trial." See Id.

The evidentiary considerations and theire impact — or lack thereof — on the trial of Ritchie's case do not end the court's inquiry. Their remains the issue of drug quantity and its impact on Ritchie's punishment. That issue is readily dispensed with. The government's supplemental briefing posits that Horner's statements could not have affected Ritchie's sentence because even if 41.5 grams from Count One were subtracted from the total 628.25 grams used in calculating Ritchie's sentence, the sentence would have remained the same under the Sentencing Guidelines. Ritchie does not dispute this per se and the court is persuaded that the government's calculations are correct. Ritchie counters, however, that the government's argument ignores the impeachment value of Horner's statements. The court will not march through each of the sub-arguments Ritchie makes in this regard. They are either not viable for the reasons discussed supra, or they are arguments that are so attenuated as to be specious. The best example of this is Ritchie's contention that Hankins' testimony that Ritchie drove the Ford truck was so tenuous that the impeachment value of Horner's statements would have led to a different result at sentencing because Hankin's testimony accounted for over half of the drugs attributable to Ritchie. As previously discussed, Horner's statements were simply not that powerful and were themselves subject to impeachment. When taken in the context of the record as a whole, the suppression of Horner's statements (while ill advised) did not result in a reasonable probability of a different result at trial because it has not been shown that the government's evidentiary suppression "undermines confidence in the outcome of the trial." See Id. Ritchie's motion should therefore be denied as to his claim that his conviction was obtained and/or his punishment was imposed due to the failure of the prosecution to disclose evidence favorable to his defense.

V

WAS THE CONVICTION FOR FELON IN POSSESSION OF A FIREARM SUPPORTED BY SUFFICIENT EVIDENCE?

Ritchie's conviction for being a felon in possession of a firearm was considered by the Ninth Circuit on direct appeal, and affirmed the appellate court found that there was sufficient circumstantial evidence that the firearm found in the hotel room where he was arrested was under his dominion and control to sustain the conviction. In his statement of grounds at docket No. 192 Ritchie promises that his briefing will show that his claim that there was insufficient evidence to support his felon in possession of a firearm conviction should be controlled by United States v. Carrasco, 257 F.3d 1045 (9^th Cir. 2001) because it sets out a new standard for constructive possession and is retroactive under Schriro v. Summerlin, 124 S.Ct. 2519 (2004). Summerlin holds in pertinent part that when a decision of the Supreme Court results in a new rule it applies to criminal cases still pending on direct review. Id. at 2522. True, but so what? Ritchie's discussion of Summerlin in his briefing ties into his Apprendi — Booker argument infra, but is never hooked up to his claim that there was insufficient evidence to convict him of being a felon in possession of a firearm. The court's review of Carrasco does not reveal that there is any reason in law to reject the government's argument that issues previously determined on the merits on direct appeal are barred from relitigation under 28 U.S.C. § 2255. See Polizzi v. United States, 550 F.2d 1133, 1135 (9^th Cir. 1976). Therefore, Ritchie's § 2255 motion should be denied as to his claim that there was insufficient evidence to sustain his conviction for being a felon in possession of a firearm.

VI

MUST RITCHIE'S SENTENCE BE MODIFIED BECAUSE IT WAS INCREASED BY ELEMENTS THAT WERE ESTABLISHED IN VIOLATION OF HIS RIGHT TO A JURY TRIAL?

Ritchie urges that his sentence must be changed because under United States v. Booker, 125 S.Ct. 738 (2005) the Supreme Court extended the rules of Apprendi v. New Jersey, 530 U.S. 466 (2005) and Blakely v. Washington, 124 S.Ct. 2531 (2004) in holding that the federal sentencing guidelines are subject to the jury trial requirements of the Sixth Amendment. Id. at 748-756. This, the Court further held, was incompatible with the mandatory aspect of the sentencing guidelines and the guidelines were therefore advisory and not mandatory. Id. at 757-769. Important to the case at bar, the Supreme Court further held that its holdings' applicability and remedial interpretation of the Sentencing Act were applicable to all cases on direct review. Id. at 769.

Ritchie makes two arguments. First, that Booker applies retroactively to initial § 2255 motions; and, secondly, that even if it does not apply retroactively to all § 2255 motions, it should apply to his motion because of his reliance on Apprendi on appeal.

Booker does not apply retroactively. In Blakely v. Washington, 124 S.Ct. 2531 (2004) the U.S. Supreme Court held that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant as proved to the jury beyond a reasonable doubt. Ritchie claims that his sentence was imposed in violation ofBlakely because the trial judge increased her sentence based on findings of fact made by the judge. This claim is governed by the Supreme Court's intervening decision in United States v. Booker, 125 S. Ct. 738 (2005) which applied the Blakely reasoning to the Federal Sentencing Guidelines. When a Supreme Court decision results in a "new" rule, the new rule applies to all criminal cases on direct review. Schriro v. Summerlin, ___ U.S. ___, 124 S. Ct. 2519, 2522 (2004). A new rule applies retroactively, however, to convictions that are final only in limited circumstances. For reasons stated below I conclude thatBooker's rule does not apply retroactively in collateral proceedings; therefore, Ritchie's claim is without merit.

The principle adopted in Blakely constitutes a "new constitutional rule of criminal procedure," which, under Teague v. Lane, 489 U.S. 288 (1989), is not retroactively applied to cases like the instant one that became final before the decision was announced. Federal habeas petitioners may not rely on new rules of criminal procedure handed down after their convictions have become final on direct appeal as a general principal.Schriro v. Summerlin, 124 S.Ct. 2519, 2523 (2004). In Schriro the court distinguished between a new substantive rule and a new procedural rule, noting that a rule requiring that a jury rather than a judge find the facts essential to the death penalty is a procedural rule, whereas a rule that a particular fact is essential to the death penalty is a substantive rule. The Supreme Court has held that a new rule resulting from one of its decisions applies to convictions that are already final only in limited circumstances. In Teague v. Lane, supra, the Supreme Court announced a three-step analysis to determine whether a new rule of criminal procedure applies to a case on collateral review.

New procedural rules which may by considered "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding are given retroactive effect.Schriro, 124 S. Ct. at 2522. Changing the method of determining whether a defendant engaged in conduct does not fall withinTeague's narrow exception for "watershed rules" of criminal procedure. A new procedural rule in order to qualify as a watershed rule must be one "without which the likelihood of an accurate conviction is seriously diminished." Id. Blakley did not announce a watershed rule of criminal procedure because the judicial fact finding, in contrast to the jury fact finding, process did not seriously diminish the accuracy of the sentencing proceeding.

This reviewing court must first determine when the defendant's conviction became final. Beard v. Banks, 124 S.Ct. 2504, 2510 (2004). Here, the defendant's conviction became final when his petition for certiorari to the United States Supreme Court was denied. Neither party has chose to enlighten the court as to that date, but the Ninth Circuit affirmed his conviction on May 23, 2002, and Mr. Ritchie's own briefing implicitly concedes that his petition for certiorari was denied prior to the Supreme Court's decision in Booker.

Next, the court must decide whether the rule in question is actually "new." Id. Under Teague, 489 U.S. at 301, a new rule is a rule that "breaks new ground." Thus, "a case announces a new rule if the result was not dictated by the precedent existing at the time the defendant's conviction became final." Id. Upon assaying the legal landscape as of January 2004, the rule announced in Booker was not dictated by then existing precedent. The alleged unlawfulness of Ritchie's conviction was not apparent to all reasonable jurists.

Other courts have reached the decision that the Booker rule is clearly new. Blakely reserved the decision about the status of the Federal Sentencing Guidelines. After Blakely, the Fourth and Fifth Circuits found that Blakely did not apply to the Federal Sentencing Guidelines. See United States v. Pineiro, 737 F.3d 464, 473 (5^th Cir. 2004); United States v. Hammond, 381 F.3d 316, 353 (4^th Cir. 2004). In United States v. Ameline, No. 02-30326 (9^th Cir. decided June 1, 2005) the Ninth Circuit sitting en banc instructs that a limited remand for cases on direct appeal is required where the record is insufficient to allow for a complete plain error analysis, for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known the guidelines were advisory. But the instant case has already become final and Ameline is therefore inapposite. Blakely andAmeline were not dictated by precedent at the time of Ritchie's conviction and reasonable jurists clearly were not compelled to so extend Apprendi.

The question then becomes whether Booker's new rule falls into either of Teague's two exceptions to the non-retroactivity rule. The non-retroactivity rule "does not apply to rules forbidding punishment `of certain primary conduct [or to] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense'" Beard 124 S.Ct. at 2513, quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989). Thus, this exception is clearly inapplicable. Beard explained the second Teague exception as follows:

"The second exception is for watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal procedure. We have repeatedly emphasized the limited scope of the second Teague exception, explaining that it is clearly meant to apply only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty. And, because any qualifying rule would be so central to an accurate determination of innocence or guilt [that it is] unlikely that many such components of basic due process have yet to emerge, it should come as no surprise that we have yet to find a new rule that falls under the second Teague exception."

Beard, 124 S.Ct. at 2513-14.

Schriro is instructive as to whether the Supreme Court's decision in Booker is a watershed procedural rule. See 124 S.Ct. 2519. Schriro held that Ring v. Arizona, 536 U.S. 584 (2002) (holding that provisions of Arizona's sentencing scheme that allowed a judge to find those aggravating factors authorizing the death penalty violate the Sixth Amendment) did not announce a "watershed rule of criminal procedure" that would apply retroactively to cases already final on direct review.Schriro, 124 S.Ct. at 2524-26. The Supreme Court viewed the issue as "whether judicial fact finding so seriously diminish(s) accuracy that there is an impermissibly large risk of punishing conduct the law does not reach." Id. at 2525. The Schriro court, citing DeStefano v. Woods, 392 U.S. 631, 633-34 (1968), observed that if a trial held entirely without a jury was not impermissibly inaccurate, neither should a trial in which a judge finds only aggregating factors be considered impermissibly inaccurate. 124 S.Ct. at 2526. Thus, the judicial fact finding addressed in Booker does not fall withinTeague's second exception. Other courts have reached similar results. See Guzman v. United States, 2005 WL 803214 (2005);Humphress v. United Stastes, ___ F.3d ___, ( 2005 WL 433191 6^th Cir. Feb. 25, 2005); Green v. United States, 397 f.3d 101, 103 (2d Cir. 2005); In Re Anderson, 396 F.3d 1336, 1339 (11^th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7^th Cir. 2005); United States v. Quintero-Araujo, 343 F. Supp. 935 (D. Id. 2004).

Finally, there is Ritchie's contention that because his petition for certiorari to the United States Supreme Court relied on Apprendi, he is correcting the clear error of federal courts and his motion is somehow bootstrapped into the status of a matter on direct review. There is simply no basis in law for Ritchie's argument. His reliance on the Davis v. United States, 417 U.S. 333, (1974) is misplaced. There, the Supreme Court held that intervening change in the law was available to a defendant making a § 2255 motion where his case was previously decided against him on direct appeal only to have a virtually identical case decided differently. But Davis is immediately distinguished from the instant case because it involved an intra circuit conflict, not a new procedural rule of criminal law by the United States Supreme Court. In other words, Davis did not involve a Teague analysis and it is inapposite here. Thus, Mr. Ritchie's § 2255 motion should denied as to his claim that his sentence should be modified because it was increased by elements that violated his Sixth Amendment right to jury trial.

CONCLUSION

For the foregoing reasons it is hereby recommended that Donald Ritchie's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 101 as amended by order at docket No. 169; with new statement of grounds for relief at docket No. 192) be DENIED. Because of the relatively complex nature of this matter the limitation on filing objections and responses to this recommendation shall be 10 pages instead of the usual 5 pages.

Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than the close of business on June 27, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9^th Cir. 2000). Objections and responses shall not exceed ten (10) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before the close of business on July 12, 2005. The parties shall otherwise comply with provisions of Federal Rule Of Civil Procedure 72(b).

Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).