The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Jed S. Rakoff, United States District Judge:
Petitioner Juan J. Lajara filed his present federal habeas
corpus petition, pursuant to 28 U.S.C. § 2255, challenging the
sentence that he received (in 00 Crim. 216) from Judge Rakoff.
(Dkt. No. 1: Pet. ¶ 12(A); see also Dkt. No. 2: Lajara Br.)
For the reasons set forth below, Lajara's petition should be
denied as time barred and without merit.
On April 5, 2001, Lajara pleaded guilty before Judge Rakoff to
engaging in racketeering activities in violation of
18 U.S.C. § 1962(c). (00 Crim. 216, Dkt. No. 46: 4/5/01 Conf. Tr. at 9-14,
26-31; see also 00 Crim. 216, Dkt. No. 37: Judgment.) Lajara was sentenced by Judge Rakoff on June 22, 2001. (See
00 Crim. 216, Dkt. No. 47: 6/22/01 Sentencing Tr. ["S."]) At
sentencing, Judge Rakoff noted that the Guideline range
applicable to Lajara would have been 324 to 405 months, but that
the statutory maximum for the crime was 240 months. (S. 4.)
Defense counsel requested reduction from the maximum sentence by
36 months to take into account the 36 months that Lajara had
served for another case in this District from Judge Martin.
(E.g., S. 4-5.) Judge Rakoff sentenced Lajara to 240 months in
prison, two years (24 months) of which was to be concurrent with
Judge Martin's sentence. (S. 26-27, 30; see also 00 Crim. 216,
Dkt. No. 37: Judgment at 2.)
On April 26, 2002, the Second Circuit denied Lajara's appeal,
which specifically had challenged his sentence. See United
States v. Sercion, No. 01-1370, 38 Fed. Appx. 638, 2002 WL
731766 (2d Cir. Apr. 26, 2002). The Supreme Court denied
certiorari on October 7, 2002. Lajara v. United States,
537 U.S. 918, 123 S. Ct. 303 (2002).
A § 2255 petition must be brought within one year of, inter
alia, the date on which judgment became final or when a new
right is recognized by the Supreme Court.
28 U.S.C. § 2255.*fn1 Obviously, Lajara's March 2005 § 2255 petition was filed
considerably more than a year after the October 2002 denial of
certiorari. Thus, his petition is timely only if it falls within
subsection 3, i.e., is within a year after a "right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review." While Lajara relies on
the Blakely and Booker/Fanfan Supreme Court
decisions*fn2 (e.g., Dkt. No. 2: Lajara Br. at 6-8, 11),
the Supreme Court has not held those decisions to be applicable
to cases on collateral review, and in fact the Second Circuit has
held that Blakely and Booker/Fanfan are not applicable to
cases on collateral review. See Guzman v. United States,
No. 03-2446, ___ F.3d ___, 2005 WL 803214 at *1 (2d Cir. Apr. 8,
2005) (Booker does not apply retroactively to cases on
collateral review); United States v. Mitchell, No. 04-3367,
122 Fed. Appx. 539, 541, 2005 WL 387974 at *1 (2d Cir. Feb. 18,
2005) ("This court has held . . . that Booker does not apply
retroactively to cases on collateral review."); Green v.
United States, 397 F.3d 101, 103 (2d Cir. 2005) ("[N]either
Booker nor Blakely apply retroactively to [petitioner's]
collateral challenge."); Carmona v. United States,
390 F.3d 200, 202 (2d Cir. 2004) (the Supreme Court has yet to make Blakely retroactive on collateral
review); see also Steele v. United States, 04 Civ. 6918,
02 Cr. 629, 2005 WL 704868 at *16 n. 18 (S.D.N.Y. Mar. 29, 2005)
For the reasons set forth above, Lajara's § 2255 petition
should be denied and a certificate of appealability should not be
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable Jed S.
Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500
Pearl Street, Room 1370. Any requests for an extension of time
for filing objections must be directed to Judge Rakoff. Failure
to file objections will result in a waiver of those objections
for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann,
9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822,
115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); ...