Corey v. United States

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1174
ALVIN SCOTT COREY,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Alvin Scott Corey on brief pro se.
F. Mark Terison, Senior Litigation Counsel and Paul D.
Silsby, United States Attorney, on brief for appellee.
March 26, 2007
Per Curiam. Petitioner, Alvin Scott Corey, appeals
the United States District Court for the District of Maine’s
dismissal of his habeas corpus petition, which he filed
pursuant to 28 U.S.C. § 2255. We granted a certificate of
appealability on the issues of whether (i) his sentence
violated the rule announced in Shepard v. United States, 125 S.
Ct. 1254 (2005), and (ii) the admission of expert testimony
concerning the manufacture of the weapon for which he was
convicted violated the rule announced in Crawford v.
Washington, 124 S. Ct. 1354 (2004). We held the case in
abeyance while we awaited the Supreme Court’s decision in
Whorton v. Bockting, 2007 U.S. LEXIS 2826 (Feb. 28, 2007), and
the path is now clear to proceed forward.
As the issues before us are purely legal, we review
them de novo. Pursuant to 28 U.S.C. § 2255, petitioner had one
year within which to file his habeas petition. The district
court dismissed it as time-barred, so the first order of
business is to determine the appropriate triggering date for
the one-year deadline. Petitioner appears to argue that the
clock should begin for his Shepard and Crawford claims on the
dates upon which the Supreme Court issued those opinions. He
understands, however, that the timing of his petition is such
that he must establish that the rules announced in those cases
are newly recognized by the Supreme Court and are retroactively
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applicable to cases on collateral review. See 28 U.S.C. §
2255, ¶ 6(3). Petitioner fails to clear this hurdle.
There is no dispute that the rules in Shepard and
Crawford are newly recognized. Nor is there any dispute that
those rules are procedural in nature. Ordinarily, newly
announced rules of criminal procedure, about which the Supreme
Court has been silent as to retroactivity, are presumed to be
non-retroactive. See Tyler v. Cain, 533 U.S. 656, 665 (2001)
(interpreting Teague v. Lane, 489 U.S. 288 (1989), as setting
general bar to retroactive application of newly announced rules
of criminal procedure). Petitioner argues that the exception
to this general bar for "watershed rules of criminal procedure
implicating the fundamental fairness and accuracy of the
criminal proceeding" applies here. We disagree.
We first consider the Shepard claim. Our opinion in
Cirilo-Munoz v. United States, 404 F.3d 527 (1st Cir. 2005),
is instructive. There, we held that the rule announced in
United States v. Booker, 125 S. Ct. 738 (2005), was not a
watershed rule. See Cirilo-Munoz, 404 F.3d at 532-33. In
doing so, we noted that judge-made findings at sentencing have
been the conventional practice throughout our nation's history.
See id. We added that this retroactivity analysis resolves any
comparable "Blakely-like" claim in this circuit. Id.-3-
Our reasoning there applies with equal force here.
Shepard, like Booker, set forth limitations on judicial
factfinding, but it did so to a far lesser degree, restricting
only the type of evidence that is appropriate for review in
particular circumstances. See Shepard, 125 S.Ct. at 1263 ("We
hold that enquiry under the ACCA to determine whether a plea of
guilty to burglary defined by a nongeneric statute necessarily
admitted elements of the generic offense is limited to the
terms of the charging document, the terms of a plea agreement
or transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant,
or to some comparable judicial record of this information.").
Accordingly, Shepard presents an even weaker case for
retroactivity than did Booker. This interpretation is
bolstered by the fact that each of the three courts of appeals
that has faced this issue has arrived at the same conclusion.
See United States v. Christensen, 456 F.3d 1205, 1208 (10th
Cir. 2006); United States v. Armstrong, 151 Fed. Appx. 155, 157
(3d Cir. 2005); United States v. Davis, 133 Fed. Appx. 916 (4th
Cir. 2005).
Recent developments make the Crawford issue even
easier to resolve. In Whorton, the Supreme Court held that the
rule announced in Crawford is not a watershed rule and,
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therefore, is not retroactively applicable to cases on
collateral review. See 2007 U.S. LEXIS 2826 at *29.
Because the dates upon which the Supreme Court
announced the rules in Shepard and Crawford are not
appropriate triggering dates for section 2255's one-year
limitations period in these circumstances, we are left with the
default triggering date--the day that petitioner’s judgment of
conviction became final. Petitioner’s judgment of conviction
became final in 2000, but he filed his petition several years
later. Accordingly, it is untimely.
For these reasons, we summarily affirm the district
court's dismissal of the petition on timeliness grounds. See
1st Cir. R. 27.0(c). AFFIRMED.
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