Hukvari v. United States 04-CV-290-SM 04/01/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

James Hukvari, Petitioner

v. Civil No. 04-cv-290-SM Opinion No.

United States of America, Respondent

O R D E R

Petitioner challenges the legality of his sentence, under

the provisions of

. He asserts that application

of the United States Sentencing Guidelines in his case resulted

in a deprivation of his Sixth Amendment rights to have a jury

determine facts enhancing his guideline sentencing range, and to

have the jury determine those facts beyond a reasonable doubt.

Essentially, petitioner seeks to benefit from recent decisions of

the United States Supreme Court in Blakely v. Washington, ___

U.S. ___ ,

(2004) and United States v. Booker, ___

U.S. ___ ,

(2005).

Petitioner pled guilty to one count of wire fraud, in

violation of

, on August 18, 2003, and was sentenced on November 24, 2003. He did not file a direct appeal

of his conviction or sentence. His Section 2255 petition raising

Booker issues was filed timely, but he is not entitled to

collateral relief based upon Booker or Blakely.

Both Blakely and Booker were decided after petitioner's

conviction and sentence became final. Accordingly, absent

retroactive application of the rule announced in those cases,

particularly Booker, the petition is without merit. Although the

Court of Appeals for the First Circuit has not yet addressed the

issue, the prevailing view among other courts of appeals and

district courts is that neither Booker nor Blakely is

retroactively applicable to cases on collateral review. See,

e.g., Varela v. United States,

, No. 04-11725,

(11th Cir. Feb. 17, 2005); McReynolds v. United States,

,

(7th Cir. Feb. 2, 2005); United

States v. Wenzel, ___ F.Supp.2d ___,

(W.D. Pa.

March 2, 2005) (collecting cases).

This is because the new rule rendering the Sentencing

Guidelines advisory is procedural rather than substantive in

2 nature. It does not qualify as a "watershed rule" implicating

"the fundamental fairness and accuracy of the criminal

proceedings," so does not retroactively apply to already final

convictions. Saffle v. Parks,

(1990); see also

McReynolds v. United States, supra; Schriro v. Summerlin,

(2004); Sepulveda v. United States,

(1st Cir. 2003) .

The petition is denied.

SO ORDERED.

Steven J. McAuliffe Chief Judge

April 1, 2005

cc: James E. Hukvari, pro se Peter E. Papps, Esq.

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