Cuevas v. Derosa

First Circuit

Cuevas v. Derosa

386 F.3d 367, 2004 U.S. App. LEXIS 22051, 2004 WL 2367356

CourtCourt of Appeals for the First Circuit

DecidedOctober 22, 2004

Docket04-2066

StatusPublished

Cited by20 cases

This text of 386 F.3d 367 (Cuevas v. Derosa) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cuevas v. Derosa, 386 F.3d 367, 2004 U.S. App. LEXIS 22051, 2004 WL 2367356 (1st Cir. 2004).

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Opinion

PER CURIAM.

Petitioner seeks leave to file a second or successive habeas corpus petition under 28 U.S.C. § 2255. As the ground for the present petition, petitioner relies on the recent United States Supreme Court decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Under the relevant gatekeeping provision, a new rule of law can form the basis for a second or successive habeas petition only if that rule is “made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255, para. 8(2). To date, the Supreme Court has not decided whether Blakely is even applicable to the federal sentencing guidelines, see Blakely, 124 S.Ct. at 2538 n. 9 (“The Federal Guidelines are not before us, and we express no *368 opinion on them.”), much less declared its ruling in Blakely to be retroactive to cases on collateral review. Therefore, petitioner may not rely on Blakely as a ground for filing a second or successive petition to vacate his federal sentence. See Simpson v. United States, 376 F.3d 679, 681-82 (7th Cir.2004); In re Dean, 375 F.3d 1287, 1290 (11 th Cir.2004); see generally Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (explaining that “a new rule is not ‘made retroactive to cases on collateral review1 unless the Supreme Court holds it to be retroactive”).

Of course, if the Supreme Court in the future makes Blakely retroactive, the petitioner may at that time attempt to assert a claim by means of a second or successive § 2255 petition. See, e.g., Sustache-Rivera v. United States, 221 F.3d 8, 16-17 (1st Cir.2000). Until that time, however, the instant application must be considered premature. See id. at 15 n. 12. •

The application is denied without prejudice.

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PER CURIAM.

Petitioner seeks leave to file a second or successive habeas corpus petition under 28 U.S.C. § 2255. As the ground for the present petition, petitioner relies on the recent United States Supreme Court decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Under the relevant gatekeeping provision, a new rule of law can form the basis for a second or successive habeas petition only if that rule is “made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255, para. 8(2). To date, the Supreme Court has not decided whether Blakely is even applicable to the federal sentencing guidelines, see Blakely, 124 S.Ct. at 2538 n. 9 (“The Federal Guidelines are not before us, and we express no *368 opinion on them.”), much less declared its ruling in Blakely to be retroactive to cases on collateral review. Therefore, petitioner may not rely on Blakely as a ground for filing a second or successive petition to vacate his federal sentence. See Simpson v. United States, 376 F.3d 679, 681-82 (7th Cir.2004); In re Dean, 375 F.3d 1287, 1290 (11 th Cir.2004); see generally Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (explaining that “a new rule is not ‘made retroactive to cases on collateral review1 unless the Supreme Court holds it to be retroactive”).

Of course, if the Supreme Court in the future makes Blakely retroactive, the petitioner may at that time attempt to assert a claim by means of a second or successive § 2255 petition. See, e.g., Sustache-Rivera v. United States, 221 F.3d 8, 16-17 (1st Cir.2000). Until that time, however, the instant application must be considered premature. See id. at 15 n. 12. •

The application is denied without prejudice.

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386 F.3d 367, 2004 U.S. App. LEXIS 22051, 2004 WL 2367356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuevas-v-derosa-ca1-2004.

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