United States of America v. Robertson
Criminal

District of Columbia, dcd-1:2003-cr-00012-22618

MEMORANDUM as to WAYNE ROBERTSON signed by Judge Rosemary M. Collyer on Deecember 12, 2006.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. Criminal Action No. 03-12 (RMC) WAYNE ROBERTSON, uuuu Defendant. MEMORANDUM On November 28, 2006, the Court of Appeals for the D.C. Circuit directed this Court to determine whether a certificate of appealability is warranted in this case. See Dkt. #31. Under 28 U.S.C. $ 2253(c)(2), the Court should issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." The applicant"need not show that he should prevail on the merits. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further."" United States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)) (modification in original). The Court concludes that Mr. Robertson has not made a substantial showing that a constitutional right was denied to him. As the Court explained in its Memorandum Opinion denying Mr. Robertson's § 2255 motion, there is no merit to Mr. Robertson's contention that the Court violated the rule announced in Blakely v. Washington, 542 U.S. 296 (2004) (as made applicable to the federal Sentencing Guidelines in Booker v. United States, 543 U.S. 220, 303 (2005)), by imposing a sentence that exceeded the statutory maximum based on facts not found by a jury. On the contrary, the Court expressly based Mr. Robertson's sentence solely on facts to which Mr. Robertson admitted in his guilty plea. See United States v. Robertson, Case No. 03-cr-12 (RMC), Mem. Op. at 2-3 (D.D.C. Oct. 30, 2006). Because "the statutory maximum ... is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," Booker, 543 U.S. at 303 (2005) (emphasis added), no reasonable jurist could find it debatable that the Court's sentence was in accordance with Booker. Even assuming arguendo that the Court's sentence violated the Booker rule, it is now well established that Booker does not have retroactive application and cannot be applied in a collateral attack on a sentence. See, e.g., United States v. Morris, 429 F.3d 65, 66-67 & n.2 (4th Cir. 2005) (collecting cases from ten circuits uniformly holding that Booker does not apply retroactively to cases on collateral review). Mr. Robertson was sentenced on July 31, 2003, over a year before. " the Supreme Court issued the Booker decision. Thus, even if Mr. Robertson could raise a legitimate question regarding the validity of his sentence under Booker, that question would not be reviewable under $ 2255. Because Mr. Robertson's $ 2255 motion does not present a substantial constitutional issue, the Court concludes that a certificate of appealability under 28 U.S.C. § 2253(c)(2) is not warranted in this case. The Court therefore declines to issue one. /s ROSEMARY M. COLLYER United States District Judge DATE: December 12, 2006