                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 07a0807n.06
                             Filed: November 19, 2007

                                              Case No. 05-5772

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

 FERLIN SAMS,                                                 )
                                                              )
            Petitioner-Appellant,                             )
                                                              )        ON APPEAL FROM THE
                   v.                                         )        UNITED STATES DISTRICT
                                                              )        COURT FOR THE EASTERN
 UNITED STATES OF AMERICA,                                    )        DISTRICT OF KENTUCKY
                                                              )
            Respondent-Appellee.                              )
                                                              )
 _______________________________________                      )


BEFORE: BATCHELDER, COLE and GRIFFIN, Circuit Judges.

        ALICE M. BATCHELDER, Circuit Judge. Ferlin Sams, a pro se federal prisoner, appeals

the district court’s denial of his 28 U.S.C. § 2255 motion to vacate sentence. For the following

reasons, we AFFIRM.

        In 2002, Sams pled guilty to conspiracy to manufacture less than fifty grams of a mixture or

substance containing methamphetamine, in violation of 21 U.S.C. § 846, possession of a firearm

during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i), and

forfeiture of assets, pursuant to 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461. Sams agreed to waive

his statutory right to appeal his guilty plea and conviction; he also waived his right to attack

collaterally his guilty plea and conviction. He did not waive his right to appeal his sentence.1 Under


        1
          W e rely on the magistrate judge’s Report and Recommendation for this information because the parties did
not include Sams’s plea agreement in the joint appendix.
the then-mandatory Guidelines, the district court sentenced Sams to 106 months’ imprisonment and

entered judgment on January 22, 2003. Although the sentencing court notified Sams of his limited

right to appeal, Sams did not file a direct criminal appeal. His conviction and sentence, therefore,

became final ten days later.

       On July 15, 2004, Sams, acting pro se, filed a motion to vacate sentence pursuant to 28

U.S.C. § 2255, alleging, inter alia, that his sentence violated Blakely v. Washington, 542 U.S. 296

(2004). The magistrate judge recommended that the district court deny Sams’s petition because (1)

§ 2255’s one-year limitation period barred Sams’s motion, (2) in his plea agreement, Sams expressly

waived the right to appeal and collaterally attack his conviction, (3) Sams procedurally defaulted his

sentencing claim because he did not file a direct appeal, and (4) Blakely is not retroactively

applicable on collateral review.

       Prior to the district court’s reviewing the magistrate judge’s Report and Recommendation,

Sams requested a delay pending the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005). Following Booker, Sams submitted a memorandum of law in support of his § 2255

motion. The district court denied Sams’s § 2255 motion, adopting the findings in the magistrate

judge’s Report and Recommendation and concluding that Booker is not retroactively applicable on

collateral review. This court granted Sams a certificate of appealability “with respect to Sams’s

claim that his sentence violates the Supreme Court’s rulings in Blakely and Booker.”

       On appeal, Sams argues that he is entitled to a new sentencing hearing because the district

court violated the Sixth Amendment when it imposed his sentence. Sams also argues that our recent

decision in Nichols v. United States, 501 F.3d 542 (6th Cir. 2007), mandates habeas relief because




                                                  2
his trial counsel did not raise an Apprendi argument2 at sentencing.

        After a de novo review of the record, applicable law, and the parties’ briefs, we hold that the

district court correctly concluded that Sams may not raise a Booker challenge in his collateral

proceedings. See Valentine v. United States, 488 F.3d 325, 329 (6th Cir. 2007) (“Booker created a

‘new rule’ that could not be raised by defendants whose convictions became final at any time prior

to Booker’s January 12, 2005, issuance.”).

        Our recent decision in Nichols is inapposite here. In Nichols, the petitioner filed a § 2255

motion “arguing that his counsel was ineffective for failing . . . to argue that the enhancements to his

then-mandatory Guidelines range violated the Sixth Amendment, as was later decided by the

Supreme Court in Booker.” Nichols, 501 F.3d at 543. “Because Apprendi cast the constitutionality

of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to

Nichols’s Guidelines range directly presented circumstances that were called into question by

Apprendi, . . . Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth

Amendment challenge to his sentence.” Id. at 548.

        Sams, however, did not file a direct appeal, nor did he raise an ineffective assistance of

counsel claim in his § 2255 motion. Instead, he filed his § 2255 motion on the grounds of

Blakely/Booker error by the sentencing court. He did not contend that his sentence should be vacated

because his counsel was ineffective for failing to argue that the then-mandatory Guidelines violated

the Sixth Amendment, and we will not entertain that argument now.

        Accordingly, we AFFIRM the district court’s denial of Sams’s § 2255 motion to vacate



        2
         The sentencing court did not enhance Sams’s sentence based upon facts not found by the jury or admitted
by Sams. The district court did, however, sentence Sams under the then-mandatory Guidelines.

                                                        3
sentence.




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