Andrew Frost v. USA CV-04-431-PB 2/11/05

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Andrew Frost Civil Case No. 04-431-PB v. (Criminal No. 02-37-PB) Opinion No.

United States of America

O R D E R

The rule announced in United States v. Booker, 125 S. C t .

738 (2005), is a new rule that is procedural rather than

substantive in nature. Moreover, the rule does not qualify as

"watershed rule" that implicates "the fundamental fairness and

accuracy of the criminal proceedings." Saffle v. Parks, 494 U.

484, 495 (1990). Accordingly, it does not apply to final

convictions. See McReynolds v. United States,

(7th Cir. 2005); Schriro v. Summerlin, 124 S. C t . 2519, 2523-26

(2004); Sepulveda v. United States

(1st Cir. Until the Supreme Court decided Blakeley v. Washington, 124

S. C t . 2531 (2004), the First Circuit and all other appellate

courts that had considered the argument on which defendant's

motion is based had determined that the argument was without

merit. See, e.g.. United States v. Collazo-Aponte,

(1st Cir. 2004); United States v. Chapman,

(6th Cir. 2002); United States v. Patterson,

(7th Cir. 2003). Counsel's failure to anticipate Blakeley v.

Washington and United States v. Booker does not gualify as

ineffective assistance of counsel. See, e.g.. United States v.

Ardley,

(11th Cir. 2001) (failure to anticipate

change in law will not support a claim for ineffective assistance

of counsel).

The motion to vacate (doc. no. 1) is denied.

SO ORDERED.

/s/Paul Barbadoro______ Paul Barbadoro United States District Judge

February 11, 2005

cc: Terry Ollila, Esg. Carolyn M. Turner, Esg. Paul Rezendes, Esg.

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