United States District Court, N.D. California
September 13, 2005.
UNITED STATES OF AMERICA, Plaintiff and Respondent,
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
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.
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