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Toliver v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 1, 2008

ANTHONY LEE TOLIVER, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DENYING PETITIONER TOLIVER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENT

On June 1, 2005, Petitioner Anthony Lee Toliver filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.

Petitioner asserts that his sentence is unconstitutional because it was based on facts not found by the jury beyond a reasonable doubt in violation of the Sixth Amendment and, because the jury did not determine any specific amount of powder cocained involved in the conspiracy, the Court had no basis to impose any sentence on Petitioner.

Petitioner's motion is DENIED. Petitioner's claims were addressed by the Ninth Circuit on direct appeal and denied. See United States v. Toliver, 351 F.3d 423 (9th Cir.2003), cert. denied, 541 U.S. 1079 (2004). To the extent Petitioner bases his Section 2255 motion on Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), Plaintiff's claims are without merit. Neither Blakely nor Booker are retroactive to cases on collateral review. Schardt v. Payne, 414 F.3d 1025 (9th Cir.2005); United States v. Cruz, 423 F.3d 1119 (9th Cir.2005), cert. denied, 546 U.S. 1155 (2006).

For the reasons stated:

1. Petitioner Anthony Lee Toliver's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 is DENIED.

2. The Clerk of the Court is directed to enter JUDGMENT FOR RESPONDENT.

IT IS SO ORDERED.

20080801

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