Paragraph 8 of 28
U.S.C. § 2255 provides:
A second or successive motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals to contain--
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant guilty of the offense;
or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.
28
U.S.C. § 2255 ¶ 8 (emphasis added).
Michael Hamlin has filed a 28
U.S.C. § 2255 motion that is unquestionably governed by 28
U.S.C. § 2255 ¶ 8. In November 2001, I issued a recommended decision on a §
2255 motion filed by Hamlin indicating that Hamlin's motion must be
dismissed under § 2255¶ 8 and that Hamlin must first get the requisite
certification from the First Circuit Court of Appeals (see Hamlin v.
United States, Civ. No. 01-233-B-S, Docket No. 45) and that decision was
affirmed by the District Court judge (see id. Docket No. 47).
On January 12, 2005, the United States Supreme Court's United
States v. Booker,
543 U.S. __, 2005 WL 50108 (Jan. 12, 2005) extended the
holding of Blakely
v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004) to the United States
Sentencing Guidelines. Apparently, Hamlin jumped (quickly) to the conclusion
that Booker
entitles him to relief from the sentence this court imposed pursuant to the
United States Sentencing Guideline after he pled guilty to two
felon-in-possession offenses.
The problem for Hamlin is that Congress has expressly provided in § 2255 ¶
8(2) that in order for defendants who have completed their first 'complimentary'
round of §
2255 review to reap any benefit from a new rule --- such as those announced
in Blakely, Booker,
and/or their predecessors (a lineage commencing with Apprendi
v. New Jersey, 530 U.S. 466 (2000))--the United States Supreme Court
must, itself, explicitly make the case retroactive to cases on collateral
review. See Sustache-Rivera
v. United States, 221 F.3d 8, 11 (1st Cir.2000).
The 'merits majority' of Booker
went out of its way to clarify that its holding on the merits and the remedy of
the Sixth Amendment claim was to apply "to all cases on direct
review." __
U.S. at __, 2005 WL 50108 at *29 (citing Griffith
v. Kentucky, 479 U.S. 314, 328 (1987): "[A] new rule for the
conduct of criminal prosecutions is to be applied retroactively to all cases ...
pending on direct review or not yet final, with no exception for cases in which
the new rule constitutes a 'clear break' with the past."). This statement
falls far short of a § 2255 ¶ 8(2) declaration of retroactive application to
cases on collateral review. Indeed, I read this passage as limiting the
application of the rule to cases in the direct review pipeline especially in
view of the fact that the Supreme Court has already concluded that Ring
v. Arizona, 536 U.S. 584 (2002), a case which applied the principle of Apprendi
to death sentences imposed on the basis of aggravating factors, was not to be
applied retroactively to cases once they were final on direct review. See
Schriro
v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2526 (2004)
("Ring announced a new procedural rule that does not apply
retroactively to cases already final on direct review.").
*2
It is for these reasons that I recommend that the Court DISMISS Hamlin's most
recent 28
U.S.C. § 2255 motion because the First Circuit Court of Appeals has not
authorized this court to consider Hamlin's application as required by 28
U.S.C. § 2244(b)(3)(A) and §
2255 ¶ 8.
Hamlin v. U.S. L 102959, *1 -2 (D.Me.,2005)
THE
LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890