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U.S. v. HARPER

United States District Court, N.D. California


September 13, 2005.

UNITED STATES OF AMERICA, Plaintiff and Respondent,
v.
DAVID HARPER, Defendant and Petitioner.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

ORDER DENYING MOTION TO SET ASIDE, VACATE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255; AND VACATING BRIEFING SCHEDULE
Now before the Court is petitioner's motion to set aside, vacate or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner argues that his sentence was unconstitutional because he received an enhancement for playing a "Leadership Role" in the criminal offense that violates his Sixth Amendment right as provided in Blakely v. Washington, 542 U.S. 296 (2004) and its progeny.

However, petitioner has been in custody since 1989 and has previously exhausted his direct appeal. See Mot. at 1. Petitioner asks this Court to conduct a collateral review of his Blakely claim. However, Blakely announced a new constitutional rule of criminal procedure that does not apply retroactively on habeas or collateral review. Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005); see Bey v. United States, 399 F.3d 1266, 1269 (10th Cir. 2005); Green v. United States, 397 F.3d 101, 103 (2nd Cir. 2005); In re Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).

  Therefore, petitioner's motion is DENIED. The briefing schedule set out in this Court's Order filed August 23, 2005 is VACATED.

  IT IS SO ORDERED.

20050913

© 1992-2005 VersusLaw Inc.



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