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August 21, 2004

Good timing (and good analysis) in Wisconsin

Just appearing on-line this morning is an interesting opinion in US v. Hamilton, 2004 U.S. Dist. LEXIS 16432 (W.D. Wisc. Aug. 17, 2004), in which District Judge Barbara Crabb thoughtfully explores whether a defendant's motion to reduce his sentence pursuant to 28 U.S.C. § 2255 based on Blakely is timely. The case is factually interesting because Hamilton seeks relief now though he was convicted over a decade ago and through his sentence became technically "final" in July 1994. The case is legally interesting because Judge Crabb astutely recognizes that Hamilton's Blakely claim, though now raised a decade after his conviction and sentence became final, might still be viable.

Judge Crabb first notes that defendant's "motion is not timely unless he can bring it under one of the exceptions to the usual one-year statute of limitations contained in § 2255." Working through the language of § 2255 and noting that to date "no court has held that ... the [Blakely] right applies retroactively to cases on collateral review," Judge Crabb ultimately concludes that Hamilton's "motion is premature." She then explains that "in these circumstances, the issue is whether [the 2255 motion] should be denied without prejudice, permitted but stayed or denied outright."

On the question of what now to do with the Hamilton's 2255 motion, Judge Crabb runs through the following thoughtful analysis:

On first consideration, it appears that defendant would not lose any rights if his motion were denied without prejudice. However, two matters give me pause.... As unlikely as it is, it is not beyond the realm of possibility that the Supreme Court would rule that Blakely applies to the sentencing guidelines, that this holding was obvious in the Blakely decision and that P 6 of § 2255 should be read as holding that the filing time begins to run on the day that the Supreme Court recognizes a new right, not on the day that the right is made retroactively applicable to cases on collateral review. If that were to happen, any defendant who had not filed within one year of the Blakely decision would be barred from obtaining the benefit of the decision.

The other factor is more likely and also more problematic. Now that defendant has filed his § 2255 motion with the court, I do not think I am free to ignore it or to treat it as anything other than the § 2255 motion it is intended to be. Thus, it becomes defendant's first filed § 2255 motion. If I deny it outright as premature, it is possible that the next motion that defendant files will have to be considered a second petition, subject to more onerous requirements under § 2255. To avoid this obvious prejudice to defendant, I will hold his present motion in abeyance, pending a decision on Booker. If in that case, the Supreme Court holds that Blakely does not apply to the sentencing guidelines, I will deny defendant's motion. If the Supreme Court reaches the opposite conclusion, I will allow the parties to brief the question of retroactivity at that time, together with any other issues that might bear on defendant's motion.

August 21, 2004 at 08:56 AM | Permalink


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