332 F.Supp.2d 275 (2004) | Cited 3 times | D. Maine | September 2, 2004


After pleading guilty to various counts relating to thedistribution of controlled substances and unlawful possession anduse of firearms, Petitioner Robert Orchard was sentenced on March10, 2003 to a total term of 186 months of incarceration, followedby four years of supervised release. Now before the Court isPetitioner's pro se motion to vacate, set aside or correctsentence pursuant to 28 U.S.C. § 2255. In his motion, Petitionerasserts that he was deprived of effective assistance of counselin three respects, and requests an extension of time to reviewthe transcript of his sentencing proceeding for additional issuesto present as part of his motion.

On June 23, 2004, the United States Magistrate Judge filed herRecommended Decision (Docket #8), recommending that the Courtdeny the motion in its entirety. Petitioner filed his objectionto the Recommended Decision (Docket #9) on July 6, 2004, andsupplemented his objection by letter (Docket #10) on July 22,2004. The Government responded to Petitioner's objections with adocument titled "Supplemental Government Response to Motion toVacate, Set Aside, or Correct Sentence," (Docket #11), filedAugust 4, 2004. Petitioner replied with a document titled"Supplemental Response to the Governments [sic] SupplementalReply" (Docket #12), filed August 11, 2004.Page 2

This Court has reviewed and considered the Magistrate Judge'sRecommended Decision together with the entire record, has made ade novo determination of all matters adjudicated by theMagistrate Judge's Recommended Decision, concurs with therecommendations of the United States Magistrate Judge for thereasons set forth in her Recommended Decision, and has determinedthat no further proceeding is necessary.

It is, however, appropriate at this juncture to address the newissues presented by Petitioner's objections to the RecommendedDecision. In his letter supplementing his objections to theRecommended Decision, Petitioner argues that the Supreme Court'srecent decision in Blakely v. Washington, 124 S. Ct. 2531(2004), renders the sentence imposed unconstitutional.Petitioner's Blakely arguments are unsuccessful on two grounds.First, the claim was procedurally defaulted. Second, even if theclaim had not been defaulted, the requirements of Blakely arenot retroactive.

Petitioner first argued that his sentence violates the SixthAmendment right to trial by jury in the letter supplementing hisobjection to the magistrate judge's recommended decision (Docket#10). A litigant is not permitted to raise new issues to thedistrict judge in his objections to the recommendation of themagistrate judge. See Paterson-Leitch Co. v. Mass. Mun.Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).Moreover, the letter was filed on July 22, 2004, well beyond theten-day period for filing objections as specified in Federal Ruleof Civil Procedure 72(b). On this basis alone, the Courtconcludes that Petitioner's claims are procedurally defaulted.

If that were not enough to preclude Petitioner's claims,Petitioner did not make a direct appeal of his sentence, andhabeas review "will not be allowed to do service for an appeal."Bousley v. U.S., 523 U.S. 614, 621 (1998) (quotation marksomitted). By failing to challengePage 3the validity of his sentence on appeal, Petitioner procedurallydefaulted his Sixth Amendment claim. See id. "Where adefendant has procedurally defaulted a claim by failing to raiseit on direct review, the claim may be raised in habeas only ifthe defendant can first demonstrate either `cause' and actual`prejudice,' or that he is `actually innocent.'" Id. at 622(citations omitted). Petitioner does not assert that he isactually innocent (in fact, in the exhibits and supporting notesto his motion he expressly states that he bought and sold drugs,and includes a diagram of the distribution scheme in which he wasa participant). Nor can he demonstrate cause for his failure toraise the claim on appeal: his is not the type of claim that isso novel that its legal basis is not reasonably available, cf.Berthoff v. U.S., 308 F.3d 124, 128 n. 3 (1st Cir. 2002)(indicating that Apprendi decision was not too novel to besubject to the procedural default doctrine), and his counsel'sfailure to appeal on this ground does not fall below an objectivestandard of reasonableness so as to constitute ineffectiveassistance of counsel, cf. Cofske v. U.S., 290 F.3d 437,443-45 (1st Cir. 2002) (concluding that counsel was notineffective for failure to object to sentencing calculation wherethe law on issue was unclear).

Even if Petitioner's claim were not procedurally defaulted, hissentence would remain unaffected by the Blakelydecision,1 despite the fact that this Court has held thatBlakely prohibits this Court from "enhanc[ing a d]efendant'ssentencing range based on a judicial finding of facts by apreponderance of the evidence," see U.S. v. Zompa,326 F. Supp. 2d 176, ___ (D. Me. 2004). The Blakely opinion explainsthat its holding is an application of the rule expressed inApprendi v. New Jersey, 530 U.S. 466 (2000). See Blakely,124 S.Ct. at 2536. The First Circuit has clearly held that"Apprendi prescribes a new rule of criminal procedure, and that[Teague v. Lane, 489 U.S. 288 (1989)] does not permit inferiorfederal courts to apply thePage 4Apprendi rule retroactively to cases on collateral review."Sepulveda v. U.S., 330 F.3d 55, 63 (1st Cir. 2003); cf.Schriro v. Summerlin, 124 S.Ct. 2519, 2526 (2004) (holding thatRing v. Arizona, 536 U.S. 584 (2002), which applied Apprendito require that aggravating factors leading to the imposition ofa death sentence not otherwise available must be found by a jurybeyond a reasonable doubt, was "a new procedural rule that doesnot apply retroactively to cases already final on directreview"). Applying the reasoning set forth in Sepulveda andSummerlin, the extension of the Apprendi rule announced inBlakely is a rule of criminal procedure that may not be appliedretroactively. Other courts that have addressed the issue haveagreed. See, e.g., Garcia v. U.S., No. 04-CV-0465, 2004 WL1752588 at *6 (N.D.N.Y. Aug. 4, 2004); U.S. v. Stoltz,325 F. Supp. 2d 982, 987 (D. Minn. 2004); Rosario-Dominguez, No. 03Civ. 4675 JSR GWG, 99CR.73 AGS, 2004 WL 1814021 at *9 n. 3(S.D.N.Y. Aug. 16, 2004); U.S. v. Beatty, No. 04-6648, 2004 WL1759028 at *1 (4th Cir. Aug. 5, 2004) (unpublished).

It is therefore ORDERED that the Recommended Decision of theMagistrate Judge is hereby AFFIRMED.

2 The Court does not address the argument presented by theGovernment in Docket #11 that the sentencing enhancements are ofno import because Petitioner "achieved" a greater base offenselevel by virtue of having been found to be an armed careercriminal.Page 1

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