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A U.S. Supreme Court ruling that invalidated portions of the federal sentencing guidelines is not retroactive for defendants bringing initial habeas petitions, a federal judge has ruled. Eastern District Judge David G. Trager said the Supreme Court’s rulings in Blakely v. Washington, 124 S. Ct. 2531 (2004), and U.S. v. Booker, 125 S. Ct. 738 (2005), were not retroactive because they announced new rules that were procedural rather than substantive. He rested his decision largely on this month’s ruling from the 2nd U.S. Circuit Court of Appeals, Green v. United States, 2005 WL 237204, which said that neither Booker nor Blakely applies retroactively to a second habeas appeal. That logic has been extended to first-time habeas petitions, Trager said, by the 7th U.S. Circuit Court of Appeals and was also implicit in the U.S. Supreme Court’s failure to apply Ring v. Arizona, 536 U.S. 584 (2002), retroactively. In Ring, the Court said the death penalty could not be imposed as a result of aggravating factors that had not been submitted to a jury. “The Supreme Court’s refusal to apply Ring retroactively to cases already decided, even when the underlying conviction would lead to death, resolves, a fortiori, any doubt about the extent of the Second Circuit’s decision in Green,” Trager wrote in Hamdani v. United States, CV-04-3332. The petitioner, Michael J. Hamdani, was convicted of possession with intent to transfer unlawfully five or more false identification documents. He represented himself at trial and on appeal despite, Trager wrote, “repeated warnings by this court of the dangers of doing so, as well as this court’s recommendation that petitioner avail himself of counsel.” The judge nonetheless appointed an attorney, Uzmah Saghir, to advise Hamdani, who was convicted by a jury after a two-day trial in July 2003. Trager later gave Hamdani an enhanced sentence of 3 years in prison and 3 years supervised release because his crime involved more than 100 documents and he had fled the jurisdiction. On appeal, Hamdani first alleged ineffective assistance of counsel. Before his appeal was decided, the U.S. Supreme Court ruled in Booker that the federal sentencing guidelines were unconstitutional to the extent that they required judges to enhance sentences based on judicial fact-finding, rather than the findings of a jury. Hamdani immediately amended his complaint to include a challenge under Booker. In his ruling Wednesday, Trager said it was of no consequence that the new rule of law was announced before Hamdani’s appeal was decided. He noted that in McReynolds v. United States, 2005 WL 237642, the 7th Circuit said Booker does not apply to first or second cases on collateral review. And in Schriro v. Summerlin, 124 S. Ct. 2519, the judge wrote, the Supreme Court classified its ruling in Ring as procedural rather than substantive and declined to apply it retroactively. “It makes no difference whether petitioner’s collateral challenge was his first or second appeal, or whether it was adjudicated prior to the announcement of the new rule of constitutional law in Booker,” Trager wrote. Assistant U.S. Attorney Joseph Lipton represented the government.

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