FILED
UNITED STATES DISTRICT CoURT ¢jAN 23 mm

FOR THE DISTRICT OF COLUMBIA
CLERK, u.s. orsrmcr court1

.olsmrcr or coLuMxzlA
)
UNITED STATES OF AMERICA, )
)
)
) Criminal Action No. 98-l58(RCL)
v. )
)
ANTOINE WILSON, )
)
Defendant. )
)
MEMORANDUM

Defendant Antoine Wilson’s petition for leave to file a motion [46] under 28
U.S.C. § 2255 and the United States’ motion [49] to dismiss petitioner’s motion as time-
barred are before this Court. After reviewing the petitioner’s motion [46], the United
States’ motion [49], the petitioner’s motion for abeyance and opposition to the motion to
dismiss [5l], the entire record therein, and applicable 1aw, the Court will GRANT the
United States’ motion [49] to dismiss Accordingly, petitioner’s § 2255 motion [46] will be
DENIED.

I. BACKGROUND

The petitioner pled guilty, pursuant to a written plea agreement, to conspiracy to
distribute and possess with intent to distribute more than 50 grams of cocaine base, which
involved conduct that occurred between January 30, 1998 and April 23, 1998. Pet’s Mot.
at l; Govt’s Opp’n at 2. Petitioner admitted he was accountable for more than 150 grams,
but not more than 500 grams of cocaine base. Ia'. At sentencing, the Court determined that

defendant’s offense level was 35 and his criminal history category was III, producing a

Sentencing Guidelines range of 210 to 262 months imprisonment. The Court imposed the
minimum tenn of 210 months imprisonment. Govt’s Opp’n at 4. On appeal, the
defendant argued that the Court erred when it imposed an enhancement for his possession
of a firearrn. Id. On l\/Iarch 1, 2000, the Court of Appeals affirmed the defendant’s sentence
and on November 21, 2005, defendant filed the instant Section 2255 motion, in which he
argues the Court should reduce his sentence pursuant to United States v. Booker, 543 U.S.
220 (2005).
II. ANALYIS
A. LEGAL STANDARD

Section 2255 permits a prisoner serving a federal sentence to move the court to
"vacate, set aside, or correct the sentence." 28 U.S.C. § 2255; see also Danz'els v. United
States, 532 U.S. 374, 377 (2001). Section 2255 authorizes the sentencing court to
discharge or resentence a prisoner if the court concludes that it was without jurisdiction to
impose the sentence, the sentence was in excess of the maximum authorized by law, or the
sentence is otherwise subject to collateral attack. Id.; see also United States v. Addonizio,
442 U.S. 178, 185 (1979). Relief under § 2255 is an "extraordinary remedy" and is
generally only granted "if the challenged sentence resulted from a fundamental defect
which inherently results in a complete miscarriage of justice or an omission inconsistent
with the rudimentary demands of fair procedure." United States v. Thompson, 587 F.Supp.
2d 121 (D.D.C. 2008) (citing United States v. Pollara’, 959 F.2d 1011, 1020 (D.C. Cir.
1992)) (citations omitted). The defendant carries the burden of sustaining his contentions
by a preponderance of evidence. United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir.

1973).

B. DEFENDANT’S MOTION IS TIME-BARRED

Effective April 24, 1996, Congress enacted a one-year statute of limitation on the
filing of § 2255 motions in the Antiterrorism and Effective Death Penalty Act (AEDPA).
United States v. Cicero, 214 F.3d 199 (D.C. Cir. 2000). The one-year limitation period
runs from the latest of:

1) the date on which the judgment of conviction becomes final;

2) the date on which the impediment to making a motion created by governmental

action in violation of the Constitution or laws of the United States is removed, if

the movant was prevented from making a motion by such govemment action;

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.

28 U.S.C. § 2255(f).

Here, the petitioner’s conviction became final no later than June 1, 2000, ninety
days after the Court of Appeals rendered a decision in this case. See Clay v. United States,
537 U.S. 522, 527 (2003) (stating that a conviction becomes final when the Supreme Court
"affirms [the] conviction on the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition expires"). Thus, the petitioner
had one year, until June 1, 2001, to file a § 2255 motion under § 2255(f)(l). Petitioner filed
his § 2255 motion on November 21, 2005, therefore exceeding the statute of limitations set
by the AEDPA.

Petitioner argues that § 2255(f)(3) applies and that his motion is timely because it

was made within one year of the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005). Further, he asserts that his sentence was imposed in violation of a right
recognized in that decision and asks the court to apply Booker retroactively.

In Blakely v. Washinglon, 542 U.S. 296 (2004), the U.S. Supreme Court held that
the Sixth Amendment prohibits judges from enhancing criminal sentences based on facts
that are not decided by a jury or admitted by the defendant. However, this Circuit has held
that United States v. Booker, 543 U.S. 220 (2005), which applied the Blakely rule to the
federal sentencing guidelines, is not retroactively applicable to cases on collateral review.
See United States v, Branham, 515 F.3d 1268, 1278 (D.C. Cir. 2008) (citing In re Fashina,
486 F.3d 1300, 1306 (D.C. Cir. 2007)); In re Zambrano, 433 F.3d 886, 888 (D.C. Cir.
2006). Similarly, other Circuits have held the same. See, e.g., Cirilo-Murzoz v. United
Slates, 404 F.3d 527, 532-33 (lst Cir. 2005); Guzmcm v. United States, 404 F.3d 139, 141
(2d Cir. 2005); Lloyd v. United States, 407 F.3d 608, 613-16 (3d Cir. 2005); United States
v. Linder, 552 F.3d 391, 396-97 (4th Cir. 2009); United States v. Gentry, 432 F.3d 600,
602-05 (5th Cir.2005); Duncan v. United Stales, 552 F.3d 442 (6th Cir. 2009); M€Reynolcz's
v. United States, 397 F.3d 479, 481 (7th Cir. 2005); Never Misses A Shot v. United States,
413 F.3d 781, 783-84 (8th Cir. 2005); United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.
2005); United States v. Hollis, 552 F.3d 1191, 1195 (l0th Cir. 2009); Varela v. United
States, 400 F.3d 864, 867-68 (1 lth Cir. 2005).

Accordingly, since Booker does not apply retroactively to cases on collateral
review, petitioner’s motion does not fall within the third prong of § 2255(f). lt falls instead
within the first prong, which states that a § 2255 motion must be filed within one-year of
the date that the conviction becomes final. Since petitioner’s motion was not filed within

that one-year period, petitioner’s motion is time-barred.

Similar1y, petitioner’s motion [50] for abeyance pending the Supreme Court’s
decision in Burlon v. Wada'ington is of no avail to him. In Burton, the U.S. Supreme Court
declined to answer whether Blakely v. Washington announced a new rule that applies
retroactively on collateral review. Rather, the Court remanded with instructions to direct
the District Court to dismiss petitioner’s habeas corpus application for lack of jurisdiction.
Burton v. Stewart, 549 U.S. 147, 149 (2007).

III. CONCLUSION

For the reasons set forth in this opinion, the Court finds that petitioner’s Wilson’s
motion is time-barred. Accordingly, the United States’ motion [49] to dismiss his motion
will be GRANTED. Petitioner’s motion [46] will be DENIED. His motion [50] for
abeyance is DENIED.

A separate order shall issue this date.

@ @. mm 1/¢¢,.
RoEbE c. L‘,’AMBERTH
Chief Judge
United States District Court

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Criminal Action No. 98-158(RCL)
v.

ANTOINE WILSON,

Defendant.

SSS€€€§\J\/SS

ORDER
lt is ordered that Antoine Wilson’s motion filed under 28 U.S.C. § 2255 be DENIED as
time-barred. Accordingly, the United States’ motion [49] to dismiss his motion will be
GRANTED. Petitioner’s motion [46] will be DENIED. His motion [50] for abeyance is
DENIED.

SO ORDERED this ___ ay of January 2010.



ROYCE C. LKMBERTH
Chief judge
United States District Court

