                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-19-2005

Gorko v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2660




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Recommended Citation
"Gorko v. USA" (2005). 2005 Decisions. Paper 671.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/671


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HPS-127 (July 2005)                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-2660
                                   ________________

                             DR. JOSEPH A. GORKO, JR.,
                                                Appellant,

                                           vs.

                          UNITED STATES OF AMERICA;
                              RONNIE HOLT, Warden
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00956)
                    District Judge: Honorable James F. McClure, Jr.
                             __________________________

              Submitted Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     July 29, 2005
      Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES
                               (Filed August 19, 2005)
                                 _________________

                                      OPINION
                                  _________________

PER CURIAM.

             Appellant Dr. Joseph A. Gorko, Jr. was convicted in United States District

Court for the Middle District of Pennsylvania of multiple counts of mailing threatening

communications in violation of 18 U.S.C. § 876. He was sentenced to a total term of



                                            1
imprisonment of 97 months, to be followed by three years of supervised release. His

direct appeal of the conviction and sentence is currently pending in this Court at United

States v. Gorko, C.A. Nos. 03-1597 & 04-4142.

              Although his direct appeal remains pending, Gorko filed a petition for writ

of habeas corpus in the Middle District, although not before the sentencing court. Gorko

sought immediate release, contending that his sentence was based on several

enhancements, and the enhancements were the result of judicial fact-finding. The petition

was grounded on the United States Supreme Court’s decisions in Blakely v. Washington,

124 S. Ct. 2531 (U.S. 2004), and United States v. Booker, 125 S. Ct. 738 (U.S. 2005).

Blakely held that the State of Washington’s determinate sentencing scheme violated the

Sixth Amendment right to a jury trial insofar as a judge may find facts, and then enhance

a sentence, upon the less stringent preponderance of the evidence standard. Id. at 2538.

Booker, which applied the Blakely rule to the federal sentencing guidelines, held that,

because the guidelines allowed judges to find facts that lead to a greater sentence than

that authorized by the facts established by a plea of guilty or a jury verdict, they were not

mandatory. Booker, 125 S. Ct. at 756.

              The District Court dismissed the habeas petition on the basis that Gorko’s

direct appeal is pending, a motion to vacate sentence under 28 U.S.C. § 2255 is the

exclusive means for mounting a collateral challenge to a conviction and sentence, and

Booker is not retroactively applicable to cases on collateral review. Gorko appeals. The



                                              2
parties were notified that we might act summarily to affirm the District Court’s order, and

invited to, and did, submit responses.

              We will summarily affirm the order of the District Court denying Gorko’s

petition for writ of habeas corpus under Third Circuit LAR 27.4 and I.O.P. 10.6, because

it clearly appears that no substantial question is presented by this appeal. The habeas

petition cannot proceed for the reasons given by the District Court. A motion to vacate

sentence under 28 U.S.C. § 2255 is the exclusive means to challenge collaterally a federal

conviction or sentence, see Application of Galante, 473 F.2d 1164, 1165 (3d Cir. 1971),

and we recently held in Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005), that the rule

announced in Booker is a new rule of constitutional procedure that is not retroactively

applicable to cases on collateral review. Gorko may pursue his Booker arguments on

direct appeal to the extent permissible. See United States v. Davis, 407 F.3d 162 (3d Cir.

2005), and United States v. Hill, — F.3d — , 2005 WL 1389113 (3d Cir. June 14, 2005).

              We will summarily affirm the order of the District Court dismissing the

habeas corpus petition.
