Markus Loren Cook v. United States

Ninth Circuit

Markus Loren Cook v. United States

386 F.3d 949, 2004 U.S. App. LEXIS 22045, 2004 WL 2365221

CourtCourt of Appeals for the Ninth Circuit

DecidedOctober 22, 2004

Docket04-74553

StatusPublished

Cited by21 cases

This text of 386 F.3d 949 (Markus Loren Cook v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Markus Loren Cook v. United States, 386 F.3d 949, 2004 U.S. App. LEXIS 22045, 2004 WL 2365221 (9th Cir. 2004).

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Opinion

ORDER

Petitioner has filed an application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district *950 court. Petitioner contends that his sentence is unconstitutional under the Supreme Court’s recent opinion in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

In our decision in Rees v. Hill, 286 F.3d 1103 (9th Cir.2002), we determined that, because the Supreme Court had not mandated that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), be applied retroactively on collateral review, Rees could not meet the requirements in 28 U.S.C. § 2244 for obtaining leave to file a second petition for habeas relief based on an alleged violation of Ap-prendi. Rees at 1104; see also United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002).

Similarly, the Supreme Court has not made Blakely retroactive to cases on collateral review. Petitioner’s application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court is therefore denied. See also In re Dean, 375 F.3d 1287 (11th Cir.2004); Simpson v. United States 376 F.3d 679 (7th Cir.2004).

No petition for rehearing or motion for reconsideration shall be filed or entertained in this case. See 28 U.S.C. § 2244(b)(3)(E).

APPLICATION DENIED.

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ORDER

Petitioner has filed an application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district *950 court. Petitioner contends that his sentence is unconstitutional under the Supreme Court’s recent opinion in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

In our decision in Rees v. Hill, 286 F.3d 1103 (9th Cir.2002), we determined that, because the Supreme Court had not mandated that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), be applied retroactively on collateral review, Rees could not meet the requirements in 28 U.S.C. § 2244 for obtaining leave to file a second petition for habeas relief based on an alleged violation of Ap-prendi. Rees at 1104; see also United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002).

Similarly, the Supreme Court has not made Blakely retroactive to cases on collateral review. Petitioner’s application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court is therefore denied. See also In re Dean, 375 F.3d 1287 (11th Cir.2004); Simpson v. United States 376 F.3d 679 (7th Cir.2004).

No petition for rehearing or motion for reconsideration shall be filed or entertained in this case. See 28 U.S.C. § 2244(b)(3)(E).

APPLICATION DENIED.

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386 F.3d 949, 2004 U.S. App. LEXIS 22045, 2004 WL 2365221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markus-loren-cook-v-united-states-ca9-2004.

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