                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             MAR 6, 2009
                              No. 08-11107                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D. C. Docket Nos. 04-21128-CV-FAM
                            01-00092-CR-FAM

JOSEFINA OLACIREQUI SANCHEZ,


                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (March 6, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
       Josefina Olacirequi Sanchez, whose conviction for heroin-trafficking

offenses became final in 2003, appeals through counsel the district court’s denial

of her 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence as untimely

and barred by the nonretroactivity doctrine of Teague v. Lane, 489 U.S. 288, 109

S.Ct. 1060, 103 L.Ed.2d 334 (1988). For the reasons set forth below, we affirm.

                                               I.

       Sanchez filed a pro se § 2255 motion, alleging two instances of ineffective

assistance of trial counsel. Several months later, she filed a pro se supplement to

her § 2255 motion, claiming that Blakely,1 issued in the interim, required re-

calculation of her guideline imprisonment range, as it was based on judge-found

facts. The government responded that Sanchez’s Blakely claim was time-barred

because the supplement was filed more than one year after her convictions became

final2 and barred because Blakely did not apply retroactively, pursuant to Teague.

The government also responded that any claim that Sanchez’s trial or appellate

counsel were ineffective for failing to raise a Blakely-type claim failed on the

merits because counsel could not be held responsible for failing to anticipate a

change in the law.

       1
           Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531159 L.Ed.2d 403 (2004).
       2
          The parties do not dispute that Sanchez’s supplement was filed more than one year after
her convictions became final or that her Blakely claim did not “relate back” to the claims raised
in her initial motion.

                                                2
       A magistrate judge recommended denying Sanchez’s Blakely claim,3

reasoning that the claim was time-barred because the supplement was filed more

than one year after her convictions became final, and barred because Blakely and

its progeny did not apply retroactively on collateral review, pursuant to Varela v.

United States, 400 F.3d 864, 867 (11th Cir. 2005). The magistrate also

recommended denying any claim that Sanchez’s trial and appellate counsel were

ineffective for failing to raise a Blakely-type claim, reasoning that Blakely had yet

to be decided. Sanchez objected that her Blakely claim was timely under 28

U.S.C. § 2255(f)(4) because she filed her supplement within one year of Blakely’s

issuance, the date on which she discovered that her counsel was ineffective for

failing to argue that her sentence was unconstitutionally based on judge-found

facts. Sanchez also objected that her Blakely claim was not barred by Teague

because (1) Blakely was not a new rule of law announced after her convictions

became final but, rather, an application of the rule of law announced in Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), before her



       3
           The report referenced here actually was the second prepared by the magistrate.
Initially, the magistrate recommended denying the two claims raised in the initial motion, but
failed to address the Blakely-claim raised in the supplement. Over Sanchez’s objection to the
oversight, the district court adopted the magistrate’s report. On Sanchez’s motion, the district
court granted a certificate of appealability (“COA”) concerning the oversight. In an unpublished
opinion, we vacated and remanded with instructions to consider the Blakely claim. Sanchez v.
United States, 247 Fed.Appx. 194, 196-97 (11th Cir. 2007). The report referenced here was
prepared on remand.

                                               3
convictions became final; and (2) Varela was inapposite because that defendant’s

conviction became final before Apprendi, while hers became final after Apprendi.

      The district court adopted the magistrate’s report. On Sanchez’s motion, the

district court granted a COA concerning Blakely’s and Booker’s4 retroactivity and

the supplement’s timeliness.

                                               II.

      In reviewing the denial of a § 2255 motion, we review questions of law de

novo and findings of fact for clear error. Lynn v. United States, 365 F.3d 1225,

1232 (11th Cir. 2004).

                                       A. Retroactivity

      In Teague, the Supreme Court held that “new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before the

new rules are announced.” 489 U.S. at 310, 109 S.Ct. at 1075. In Varela, in which

the defendant’s conviction became final before Apprendi, we applied Teague to

Blakely and Booker and held that the “constitutional rule [announced in Blakely

and Booker] falls squarely under the category of new rules of criminal procedure

that do not apply retroactively to § 2255 cases on collateral review.” 400 F.3d at

866-68. In United States v. Morris, 429 F.3d 65, 70-71 (4th Cir. 2005), in which



      4
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

                                                4
the defendant’s conviction became final after Apprendi, the Fourth Circuit applied

Teague and similarly held that Booker did not apply retroactively. In so holding,

the Fourth Circuit specifically rejected an argument that Booker was not a new rule

of law but merely a clarification of Apprendi. The Fourth Circuit reasoned in part

that the Supreme Court itself viewed Booker as announcing a new rule of law, as

(1) in holding that the rule must apply to all cases on direct review, the Supreme

Court reasoned that “a new rule for the conduct of criminal prosecutions is to be

applied retroactively to all cases . . . pending on direct review or not yet final”; and

(2) the rule was not “apparent to all reasonable jurists,” since four dissenting

Supreme Court justices undertook to explain why the holding in Blakely was not

compelled by Apprendi. Id. at 70-72 (citing Booker, 543 U.S. at 268, 329-33, 125

S.Ct. at 769, 805-07).

      The district court did not err in concluding that Sanchez’s Blakely claim was

barred by Teague. See Lynn, 365 F.3d at 1232. We previously have held that

Blakely and Booker are not retroactively applicable on collateral review. See

Varela, 400 F.3d at 866-68. Our holding applies equally to cases in which the

defendant’s conviction became final before Apprendi, as in Varela, and cases in

which the defendant’s convictions became final after Apprendi, as here. See also

Morris, 429 F.3d at 70-72 (holding that Booker did not apply retroactively in a



                                            5
case in which the defendant’s conviction became final after Apprendi). Likewise,

our sister Circuit previously has rejected an argument, such as that made by

Sanchez on appeal, that Booker was not a new rule of law for Teague purposes.

See id. We agree with the Fourth Circuit. Accordingly, we affirm as to this issue.

                                   B. Timeliness

      The AEDPA imposes a one-year statute of limitations for filing a § 2255

motion. 28 U.S.C. § 2255(f). This limitations period runs from the latest of

      (1) the date on which the judgment of conviction becomes final;
      (2) the date on which [an unconstitutional government-imposed]
      impediment to making a motion . . . is removed . . . ;
      (3) the date on which the right asserted was initially recognized by the
      Supreme Court, if that right has been newly recognized by the
      Supreme Court and made retroactively applicable to cases on
      collateral review; or
      (4) the date on which the facts supporting the claim or claims
      presented could have been discovered through the exercise of due
      diligence.

Id.

      As stated above, we have held that Blakely and Booker are not retroactively

applicable on collateral review. See Varela, 400 F.3d at 866-68. Thus, these

decisions do not trigger a later starting date under 28 U.S.C. § 2255(f)(3). We

have yet to consider, however, whether the issuance of Blakely and Booker and/or

the alleged prejudice resulting from counsel’s failure to preserve a Blakely/Booker-




                                          6
type claim5 constitute “facts” for the purposes of § 2255(f)(4).6

       The district court did not err in concluding that Sanchez’s Blakely claim was

time-barred. See Lynn, 365 F.3d at 1232. We have foreclosed reliance on

§ 2255(f)(3) for claims raising Blakely/Booker issues. See Varela, 400 F.3d at

866-68. Were a defendant allowed to skirt the principle that Blakely and Booker

are not retroactive for § 2255(f)(3) purposes and argue instead that she just

discovered, when Blakely was issued, that her counsel was ineffective for failing to

preserve a Blakely-type claim, the principle would have no teeth. See United

States v. Brown, 526 F.3d 691, 713 (11th Cir. 2008) (“[This Court] construe[s]

statutory language as to avoid absurd results”). Thus, logic mandates that

Sanchez’s theory is meritless. Accordingly, we affirm as to this issue.

       AFFIRMED.



       5
        On appeal, the government argues that Sanchez did not raise an ineffective-assistance-
of-counsel claim in her supplement, but merely argued that her sentence was ineffective under
Blakely. We agree. However, both the government, in its response to the supplement, and
magistrate judge, in his report, treated the supplement as raising such an ineffective-assistance-
of-counsel claim. Accordingly, we will do the same.
       6
         On appeal, Sanchez argues that the Supreme Court held in United States v. Johnson,
544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005), that “facts” for § 2255(f)(4) purposes
may include “court rulings.” In Johnson, the Supreme Court held that a state-court vacatur of a
federal prisoner’s prior state conviction, which was used to enhance his federal sentence, is “a
matter of fact” for § 2255(f)(4) purposes and concluded that the limitation period begins to run
on the date that the prisoner receives notice of the order vacating the predicate conviction. 544
U.S. 295, 302, 304-07, 308, 125 S.Ct. at 1577-80. The Supreme Court did not address whether
court opinions also constitute matters of fact. See generally id. Thus, the “court ruling” to
which Sanchez referred was not the sort of court ruling at issue here, and Johnson is irrelevant.

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