UNITED STATES 1)1sTR1CT coURT F I I_ E D
FoR THE DISTRICT oF CoLUMBIA

MAY 2 5 2010
) Clerk, U.S. District & Bankruptcy
) Courts for the Dlstrlct of Columbla
UNITED STATES OF AMERICA )
)
v. ) Crim. No. 90-449-1 (RCL)
)
MIGUEL PROFETA, )
Defendant. )
)
MEMORANDUM

On January 15, 2010, the Court of Appeals for the D.C. Circuit directed the Court
to determine whether to issue a certificate of appealability in this case [206].

Upon consideration of petitioner’s Notice of Appeal and Request for Certiflcate
of Appealability [204], applicable law, and the entire record herein, petitioner’s Request
will be DENIED for the reasons set forth below.

I. INTRODUCTION

Petitioner filed a motion under 28 U.S.C. § 2255 [134], which the Court
dismissed in an order dated October 27, 2009 [20l]. Petitioner then filed a Notice of
Appeal and Request for Certificate of Appealability with the Court on December l4,
2009 [204]. The D.C. Circuit ordered that petitioner’s case "be held in abeyance pending
the district court’s resolution of appellant’s motion for certificate of appealability" on
January 15, 2010 [206].

II. ANALYSIS
A. LEGAL STANDARD

Section 2253 provides in pertinent part:

(c) (l) Unless a circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals from-

 the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (l) only if the

applicant has made a substantial showing of the denial of a constitutional

right.
28 U.S.C. § 2253(c)(2). Petitioner makes this "substantial showing" if he can
"demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong." Slack v. McDanz`el, 529 U.S. 473, 484 (2000).

B. PETITIONER HAS NOT MADE A SUBSTANTIAL SHOWING OF
THE DENIAL OF A CONSTITUTIONAL RIGHT

The Court concludes that petitioner has not made a substantial showing of the
denial of a constitutional right, because reasonable jurists would not debate the Court’s
holding.

The Court held previously that Mr. Profeta’s petition was time-barred, because he
did not file it within the permissible one-year grace period following the enactment of
AEDPA [202]. See United States v. Cz'cero, 214 F.3d 199 (D.C. Cir. 2000). This grace
period expired on April 24, l997_well before Mr. Profeta filed his petition on June 15,
200l. As the Court stated, every other circuit who has decided this issue agrees that there
was only a one-year grace period [202]. Reasonable jurists, therefore, would not debate
this holding of the Court.

Furthermore, Mr. Profeta contends in his § 2255 petition that: l) he did not
knowingly and intelligently enter into his guilty plea, and 2) that his indictment was
fatally defective, both pursuant to Apprena'i v. New Jersey, 530 U.S. 466 (2000), and
Rz`chardson v. Unz`ted States, 526 U.S. 813 (1999). He contends that Apprendi and

Richardson were rights newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review [l34]. Accordingly, he contends that there is a
one-year filing limitation, running from the date on which those Supreme Court cases
were decided. 28 U.S.C. § 2255(f)(3).

Mr. Profeta did not file within one year of the Supreme Court’s ruling in
Richara'son, which was decided on June l, 1999. Richardson, 526 U.S. 8l3. Because Mr.
Profeta did not abide by the plain language of § 2255(f)(3) and did not timely file his
petition, reasonable jurists would not debate the Court’s holding that Mr. Profeta’s
Richardson claim was time-barred.

Mr. Profeta filed within one year of the Supreme Court’s ruling in Apprendz`,
which was decided on June 26, 2000. Apprendi, 530 U.S. 466. The Supreme Court,
however, has not made Apprendi apply retroactively to cases on collateral review within
the meaning of§ 2255. Um'tea' States v. Lafayette, 585 F.3d 435, 439 (D.C. Cir. 2009); In
re Zambrano, 433 F.3d 886, 888 (D.C. Cir. 2006). " ‘The Supreme Court is the only
entity that can make a new rule retroactive’ within the meaning of this provision."
Lafayette, 585 F.3d at 439 (quoting Tyler v. Caz'n, 533 U.S. 656 (2001)). Every circuit
that has considered the issue agrees with the D.C. Circuit’s holding that Apprendi does
not apply retroactively to cases on collateral review. See In re Naz'lor, 487 F.3d l0l8,
1023 (6th Cir. 2007); Um`tea’ States v. Gentry, 432 F.3d 600, 603 n.l (5th Cir. 2005); Bey
v. Uniled States, 399 F.3d l266, 1268 (l0th Cir. 2005); Varela v. United Slates, 400 F.3d
864, 867 (llth Cir. 2005); Poz`na'exter v. Nash, 333 F.3d 372, 379 (2d Cir. 2003); Unz'ted
Stales v. Swinton, 333 F.3d 481 (3d Cir. 2003); Sepulveda v. Unz`tea’ States, 3330 F.3d 55,
60-61 (lst Cir. 2003); Berkey v. Um'ted Stares, 318 F.3d 768, 774 (7th Cir. 2003); San-

Mz'guel v. Dove, 291 F.3d 257, 260 (4th Cir. 2002); Rees v. Hill, 286 F.3d ll03, 1104 (9th

Cir. 2002); Hines v. United States, 282 F.3d 1002, 1004 (8th Cir. 2002). Because every
circuit agrees on this point, reasonable jurists would not debate that Mr. Profeta’s
Apprendi claim is not permitted under § 2255(f)(3).
CONCLUSION

For the reasons set forth in this opinion, the Court finds that petitioner has not
made a substantial showing of the denial of a constitutional right. Accordingly,
petitioner’s Request for a Certificate of Appealability [204] is DENIED.

A separate order shall issue this date.

Q>ar. /?Q»LMZL

Roil=t:E C. IfAMBi-:RTH
Chief Judge
United States District Court

