The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition is the motion for resentencing
filed by the defendant that we have construed as a motion under
28 U.S.C. § 2255. The matter has been fully briefed and is ripe
for disposition. For the reasons that follow, the motion will be
This court sentenced defendant on January 8, 2004 in two
criminal cases, 3:01cr303 and 3:02cr141, to a year and a day to
be served concurrently. Defendant did not appeal his sentence,
thus his conviction became final ten (10) days after entry of the
judgment on the district court's docket, January 8, 2004.
Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987). On
December 13, 2004, defendant filed the instant motion, bringing
the case to its present posture.
Defendant seeks to be resentenced pursuant to the United States
Supreme Court case of Blakely v. Washington, ___ U.S. ___,
124 S.Ct. 2531 (2004). In Blakely, the United States Supreme Court
held that the state of Washington's criminal sentencing scheme
violated a defendant's constitutional right to a jury trial because it
allowed the sentencing judge to enhance a sentence beyond the
statutory maximum based upon facts not proven to a jury beyond a
reasonable doubt. Id. The Supreme Court subsequently applied
the same reasoning to the United States Sentencing Guidelines in
United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005).
Therefore, if the defendant is entitled to relief at all it is
under Booker, not Blakely, as Booker applies to federal
Defendant is not, however, entitled to resentencing. The Third
Circuit Court of Appeals has held that Booker is not
retroactive to section 2255 motions where the judgment was final
as of January 12, 2005, the date Booker was issued. Lloyd v.
United States, 407 F.3d 608, 616 (3d Cir. 2005). As noted above,
defendant's judgment was final in January 2004. Accordingly,
Booker does not apply to his case, and his motion will be
AND NOW, to wit, this 13 day of June 2005, the defendant's
motion for resentencing, which we have construed as a motion
under 28 U.S.C. § 2255 (Doc. 17) is hereby DENIED. The Clerk of
Court is directed to close case number 3:04cv2747.
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