UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

§
UNITED STATES OF AMERICA, §
§
v. § Crim. Action No. 89-160-1 (RCL)
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MARCOS ANDERSON, § F l L E D
D f d t.
° °“ “” § JuL 2 4 2009
NANCYMAYER wmmncron, ctem<
MEMORANDUM AND oRDER v.S. !JFSTR\CTC@L»RT

Before this Court is Defendant Marcos Anderson’s Motion to Reconsider [14]
then Chief Judge Thomas Hogan’s March l6, 2006 ruling [l3] denying Mr. Anderson’s
two motions to supplement his 28 U.S.C. § 2255 petition in light of Um'ted States v.
Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004). For the
reasons set forth below, petitioner’s motion to reconsider is denied.

I. STANDARD OF REVIEW

The Rules of Civil Procedure generally apply to Section 2255 proceedings, except
in cases where they are inconsistent with any statutory provision or the Rules Goveming
Section 2255 Proceedings. FED. R. CIV. P. 8l(a)(2); RULES GOVERNING SECTION 2255
PROCEEDINGS 12. While motions to reconsider are not specifically mentioned in the
Rules of Civil Procedure, they have been treated as motions to alter or amend judgment
under Rule 59(e). Piper v. Dep ’t of Justice, 312 F. Supp. 2d l7, 20 (D.D.C. 2004) (citing
Emory v. Sec ’y of the Navy, 819 F.2d 291, 293 (D.C. Cir. l987)). Rule 59(e) motions are
disfavored though and should only be granted in extraordinary circumstances. Liberly
Prop. Trust v. Republic Props. Corp., 570 F. Supp. 2d 95, 97 (D.D.C. 2008) (citing

Niedermeir v. Ojj‘z`ce of Baucus, 153 F. Supp. 2d, 23, 28 (D.D.C. 200l)). Though a court

has considerable discretion in granting such motions, it only need to do so when it finds
that there has been an intervening change of controlling law, that new evidence is
available or that granting the motion is necessary to correct a clear error or prevent a
manifest injustice. Firestone v. Firestone, 76 F.3d, l205, 1208 (D.C. Cir. l996) (per
curiam). While Mr. Anderson has not alleged which one of these grounds the Court
would have to base its decision on, it seems that it could only fall within the last two.
II. ANALYSIS

Mr. Anderson contends that the court erred in its declaration that only the
Supreme Court can make a new rule of constitutional law apply retroactively pending on
collateral review. Motion to Reconsider [l4], at l (citing Mem. Op. at 3 n.l). And
indeed, many circuits have held that a lower court may make a retroactivity
determination, though it appears that the D.C. Circuit has not yet passed on that question
(explicitly at least). See Dodd v. Um'ted States, 545 U.S. 353, 365 n.4 (2005) (Stevens, J.,
dissenting) ("In reaching its result, the Court relies on an assumption made by both
parties and not challenged in this Court; namely, that the decision to make a new rule
retroactive for purposes of [Section 2255 11 6(3)] can be made by any lower court."); id. at
371 n.* (Ginsburg, J., dissenting) ("Petitioner and the Government assume, for the
purpose at hand, that a controlling decision whether a right operates retroactively may be
made by a court of appeals. We have no cause in this case to question that assumption.")
(internal citations omitted); see also Wiegand v. Um'ted States, 380 F.3d 890, 892 (6th
Cir. 2004); Um'ted States v. Swinton, 333 F.3d. 48l, 485-86 (3d Cir. 2003); Ashley v.
Um`ted States, 266 F.3d 671, 673~75 (7th Cir. 2001); Um'ted States v. Lopez, 248 F.3d

427, 431 (5th Cir 200l). This Court has implicitly endorsed this position as well. See

Unitea' States v. Thompson, 587 F. Supp. 2d 121, 123-24 (D.D.C. 2008) (discussing
Section 2255 cases where lower courts made nonretroactivity determinations based on
Teague v. Lane analysis). And we also agree with the petitioner that his motion to amend
is not a "second or successive petition" under AEDPA, and therefore Section 2255 11
8(2)’s limiting languagel does not apply, which would make his case one in which a
lower court could make a retroactivity determination. See Johnson v. United States, 196
F.2d 802, 805-06 (7th Cir. 1999).

And though it appears likely that the D.C. Circuit would hold that a lower court
can make a retroactivity determination (indeed, in several cases it has made such
determinations already), the Court is not persuaded that Chief Judge Hogan’s assertion
otherwise was clear error. At the time of the decision, the Supreme Court had itself not
considered the question_though it hinted which way it might rule_see Doald, 545 U.S.
at 371 n.* (Ginsburg, J., dissenting), and the D.C. Circuit had yet to do so as well. The
only Supreme Court case to decide a similar issue, though in the context of Section 2254

proceedings, said only the Supreme Court could make a new rule of constitutional law

‘ Compare 28 U.S.C. § 2255 11 8(2) ("A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court of appeals to contain . . . a
new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.") (emphasis added) with id. § 2255 11
6(3) ("A 1-year period of limitation shall apply to a motion under this section. The limitation
period shall run from the latest of . . . 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."). Though it has become something of
a refrain, it’s still worth noting that AEDPA is not a model of statutory drafting, see
Lindh v. Murphy, 521 U.S. 320, 336 (1997), Congress’s use of different language in these
two sections still must be treated as if it were not the result of careless drafting, but
thoughtful deliberation. See Russello v. Unitea' States, 464 U.S. 16, 23 ("[W]here
Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.") (quoting Unitea’ States v. Wong Kim
Bo, 472 F.2d 720, 722 (5th Cir. 1972)).

apply retroactively to cases on collateral review. Tyler v. Cain, 533 U.S. 656, 663
(2001); see also id. at 677 (Breyer, J., dissenting).

But even were this clear error, which this Court is not convinced it was, clear
error does not always merit reconsideration. This is especially the case, where, as it is
here, doing so would not make any difference. Since Chief Judge Hogan’s order, the
D.C. Circuit has considered whether Booker applies retroactively to cases pending on
collateral review, and twice held that it does not. United States v. Branham, 515 F.3d
1268, 1278 (D.C. Cir. 2008); In re Fashina, 486 F.3d 1300, 1303 (D.C. Cir. 2007). And
though we might be free to make a retroactivity determination in the first instance, we are
not able to do so when bound by the decision of a higher court.

III. CONCLUSION

Because the D.C. Circuit has already held that Booker is nonretroactive, failing to
reconsider the March 16, 2009 order would not work a manifest injustice either. Because
reconsideration would not lead to a different result nor cause a manifest injustice,
petitioner’s motion for reconsideration is hereby DEN1ED.

so oRDERED this By ofiuiy 2009.

go C,f»@tbaf

RoY*dE c. LAMBERTH
Chief Judge
United States District Court

