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January 10, 2006

DC Circuit weighs in on Booker retroactivity issue

The DC Circuit today in In Re: Zambrano, No. 05-3106a  (D.C. Cir. Jan 10, 2006) (available here), had an opportunity to talk about Booker retroactivity in the habeas context.  Here is the introduction and conclusion to the careful and clear opinion:

Regulo Zambrano applies for leave to file a second motion to vacate his criminal sentence pursuant to 28 U.S.C. § 2255, contending that the sentence is unconstitutional under United States v. Booker, 125 S. Ct. 738 (2005).  We cannot authorize the filing, however, because the Supreme Court has not made Booker retroactive to cases on collateral review....

For these reasons, we conclude that Booker is not a new rule of constitutional law "made retroactive to cases on collateral review by the Supreme Court" within the meaning of 28 U.S.C. § 2255.  In so holding, we join all of the circuits that have considered the question.  The application for leave to file a second § 2255 motion is denied.

January 10, 2006 at 04:22 PM | Permalink


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Be careful, dear readers, lest you assume too much about what the court here actually held. This case could have gone off in one paragraph instead of seven pages.

The Supreme Court has already ruled that it alone has the authority to determine which rules apply retroactively. Just because a rule might apply retroactively under Teague does not mean that it does apply retroactively unless the Supreme Court so declares. Because the Supreme Court has not yet held that Booker applies retroactively, Booker affords federal prisoners no collateral relief from their sentences.

The court here did not decide that Booker should or should not apply retroactively. Kudos on a properly limited and narrowly focused opinion.

Posted by: keith | Jan 10, 2006 5:56:05 PM

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