Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, ) ) ) ) ) ) ) ) No. CR 04-0864-PHX-SRB No. CV 05-0519-PHX-SRB (NF)

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v.
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Eduardo Heridia Nieblas,
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Movant.
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ORDER

Eduardo Heredia Nieblas ("Movant"), presently confined in the California City Correctional Center in California City, California, has filed a pro se Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #32). The Court will summarily dismiss the action. A. Procedural Background. Movant pled guilty to illegal re-entry after removal, a violation of 8 U.S.C. § 1326, with sentencing enhancement pursuant to Title 8, U.S.C. 1326(b)(1), a Class C Felony Offense. Judgment was entered on December 17, 2004 (Doc. #25). Movant was sentenced to a term of fifteen (15) months, with credit for time served. Upon release from prison, Movant was placed on supervised release for a term of three years. Movant next filed the present § 2255 action. He raises three grounds for relief: (1) enhancing his sentence based on a prior conviction violated the Sixth Amendment as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004); (2) The Court violated the plea agreement. Movant contends that pursuant to the plea agreement he agreed to an 8-14 month sentence and he was sentenced to a term of 23 months. Movant requests that the Court sentence him to a term of 8-12 months; (3)

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Movant contends that he is entitled to relief under United States v. Booker, 125 S. Ct. 738 (2005) for the same reasons stated in ground one. B. Summary Dismissal. A district court must summarily dismiss a § 2255 application "[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceedings that the moving party is not entitled to relief." Rule 4(b), RULES GOVERNING § 2255 ACTIONS. The district court need not hold an evidentiary hearing when the movant's allegations, viewed against the record, either fail to state a claim for relief or are patently frivolous. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); see also Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) (district court may summarily dismiss without ordering a response where the record conclusively or plainly shows that the movant is not entitled to relief). Because Movant plainly is not entitled to relief and cannot amend to cure the deficiencies in his claims, the Court will summarily dismiss his motion to vacate. C. Failure to State a Claim. 1. Ground one Movant contends that his Sixth Amendment rights were violated when his sentence was enhanced under U.S.S.G. § 2L1.2 based upon his prior conviction, and when he did not admit that the conviction was of the specified type and occurred in the required time frame in relation to his deportation. Contrary to his argument, Movant did admit in his plea agreement that he was convicted of Disorderly Conduct and Possession of Drug Paraphernalia both felony offenses, on May 2, 2002, in the Superior Court of Maricopa County (Plea agreement at 7). Regardless, these admissions were not constitutionally required. In Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000), the Supreme Court expressly held that a jury finding beyond a reasonable doubt is required for any "fact" that increases the penalty other than the fact of a prior conviction. Id. at 490 (emphasis added). The Ninth Circuit Court of Appeals has consistently held that there is no Sixth Amendment violation when the district court relies on the fact of a prior conviction to enhance a sentence. See United States v. Moreno-Hernandez, No. 03-30387, ___ F.3d ___, 2005 WL 387608 (9th Cir. Feb. 18, 2005); United States v. Asberry, 394 F.3d 712, 720 (9th Cir. 2005); United States v. Lopez-Zamora, 392 F.3d 1087, 1097-98 (9th Cir. 2004); United States
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v. Quintana-Quintana, 383 F.3d 1052 (9th Cir. 2004); cert. denied,125 S. Ct. 1100 (2005). Movant's first ground fails to warrant relief, and the Court cannot conceive of a way in which Movant could amend his motion to state a claim. Accordingly, no opportunity for amendment will be permitted. 2. Ground two In Ground two, Plaintiff alleges that the Court violated the plea agreement because he was sentenced to a term of 23 months, and he agreed to a term of 8-14 months. Contrary to his assertion, Movant was sentenced to a term of fifteen (15) months, with credit for time served (Doc. #25). Moreover, the plea agreement stated that "The Guideline Range referred to herein is not binding on the Court and is merely an estimate." Movant was sentenced within the applicable parameters of the sentencing guidelines. 2. Ground three Movant asserts that he is entitled to relief under United States v. Booker, 125 S. Ct. 738 (2005)). In Booker, the Supreme Court held that mandatory application of the United States Sentencing Guidelines violated the Sixth Amendment because defendants have a right to a jury trial on any disputed fact that increases punishment. Regardless whether the principles announced in Booker might afford Movant some type of relief, a threshold question is whether Booker can be applied retroactively to petitions seeking collateral review pursuant to 28 U.S.C. § 2255. See Teague v. Lane, 489 U.S. 288, 300 (1989) (retroactivity is a threshold question). The Supreme Court found that its holding in Booker applied to cases on direct review, Booker, 125 S. Ct. at 769, but the Court did not address whether its decision applied retroactively to cases on collateral review. The Court did, however, indicate that its holding was a new rule of criminal procedure. Booker, 125 S. Ct. at 769 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). For a new rule to be applied retroactively, the holding must fall into either of two exceptions to nonretroactivity outlined in Teague, 489 U.S. 288. See Beard, 124 S. Ct. at 2510. Under the two exceptions, a new rule may only be applied retroactively on collateral review when the rule (1) places certain kinds of primary private individual conduct beyond the power of criminal-law making authority to proscribe or (2) requires the observance of those procedures that
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are implicit in the concept of ordered liberty. Teague, 489 U.S. at 307. Under the second Teague exception, a "watershed" rule may be applied retroactively if the failure to adopt the rule will result in an impermissibly large risk that the innocent will be convicted and if the procedure at issue implicates the fundamental fairness of trial. Id. at 312. The rule must improve the accuracy of the trial and alter our understanding of the "bedrock procedural elements essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242 (1990). The Ninth Circuit Court of Appeals recently considered a similar retroactivity issue regarding Apprendi in United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir. 2002). As discussed above, Apprendi held that the Sixth Amendment requires a jury finding for any "fact" that increases the penalty other than the fact of a prior conviction. Apprendi, 530 U.S. at 490. In SanchezCervantes, the Ninth Circuit affirmed the district court's determination that Apprendi did not apply retroactively to cases on collateral review. The Ninth Circuit found that the first Teague exception to non-retroactivity did not apply because Apprendi did not decriminalize certain conduct or place certain conduct beyond the scope of the statute's authority to prescribe. Sanchez-Cervantes, 282 F.3d at 668. The second Teague exception also did not apply because the accuracy of the underlying conviction was not at issue and the rule was not a bedrock procedural element. Id. 669.

Booker is an application of Apprendi. In light of the Ninth Circuit's holding in SanchezCervantes that Apprendi does not apply retroactively to case on collateral review, Booker similarly cannot be applied retroactively. Booker is not concerned with what primary conduct is unlawful. Booker also is not a "watershed" rule that fundamentally improves the accuracy of the criminal system. As was recently held by the Seventh Circuit Court of Appeals, Booker simply increased the degree of flexibility judges enjoy in applying the guidelines system, but did not move any decision from judge to jury or change the burden of persuasion. United States v. McReynolds, ___ F.3d ___, 2005 WL 237642, at *2 (7th Cir. Feb. 2, 2005). The Seventh Circuit therefore concluded that Booker cannot be applied retroactively to cases on collateral review. Id. This Court agrees with the Seventh Circuit's holding. Accordingly, Booker cannot be applied retroactively to Movant's § 2255 Motion, and Movant's third ground fails. The Court
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cannot conceive of any way in which Movant could amend this claim to warrant service. Accordingly, the Court will summarily dismiss the action as plainly without merit. IT IS THEREFORE ORDERED that the Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #32) is DENIED and that the civil action opened in connection with this Motion (CV 05-519-PHX-SRB (NF) is DISMISSED. DATED this 4th day of January, 2006.

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