Petition for Writ of Certiorari — Fiorillo v. United States (No. 07-1065)

Supreme Cont, U.S.

l O71 065FEB 7 - 2008

NO.

OFFICE OF THE Ct Pm <

In The

Supreme Court of United States

October Term, 2008

JOHN JERRY FIORILLO

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Flora Edwards, Esq.

115 Broadway - Suite 1505

New York, New York 10006

212-785-3344

FMELAW@aol.com

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

% Is the requirement of proof beyond a reasonable

doubt as announced in Blakely as extended to

Booker a watershed rule of constitutional

procedure that should be applied retroactively

under the Teague Rule On Retroactivity?

2. Should the retroactivity principle in Teague v

Lane, 489 U.S. 288 (1989) bar relief where the

very issue being contested in light of new

constitutional law was duly raised on appeal in

the circuit court?

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. Blakely/ Booker announced a

‘watershed’ rule of criminal procedure

within the meaning of Teague

A. The failure to find sentencing facts

by proof beyond a reasonable doubt

substantially diminishes accuracy

and neglects a bedrock element of

fairness

The Teague rule on retroactivity should

not bar relief where the very issue being

contested in light of new constitutional

law was duly raised on appeal

CONCLUSION

APPENDIX

Decision of the Ninth Circuit, United States

of American v. Jerry John Fiorillo entered

November 13, 2007

Order Granting Request for Certificate

of Appealability in Part

Memorandum Opinion and Order Denying

Motion for Summary Judgment and Denying

Petition for Writ of Habeas Corpus

il

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adams v. Aiken, 41 F.3d 175, 178-79 (4th Cir. 1994) 9

Apprendi v. New Jersey, 530 U.S. 466 (2000) ..... 3

Arizona v. Fulminante, 499 U.S. 279, 310 (1991) . 10

Beard v. Banks, 542 U.S. 406, 411 (2004) ........ 6

Blakely v. Washington, 542 U.S. 296 (2004) .. passim

Burton v. Stewart, 127 S.Ct. 793 (2007)... 5,6, 10, 12

Campbell v. United States, 364 F.3d 727

ne NE ia i ne oe oe VR cca a eRe oa 12

Carrington v. United States, 470 F.3d 920

Se | SE en ney oes ae ear ere a ere 5

Cook v. United States, 2004 WL 2365221

SC ee ce der kek on bad er ek 13

Davis v. United States, 417 U.S. 333 (1974) ..... 13

Felix v. Mayle,379 F.3d 612 (9th Cir.2004) ....... 4

Gaines v. Kelly, 202 F.3d 598 (2d Cir. 2000) ...... 9

Graham v. Collins, 506 U.S. 461 (1993) .......... 7

Hall v. Kelso, 892 F.2d 1541 (11th Cir. 1990) ..... 9

iV

er ad. +

or!

se.

Hankerson v. North Carolina, 432 U.S. 233 (1977) . 7

Humphress v. United States, 398 F.3d 855 (6th Cir.)10

Humphrey v. Cain, 138 F.3d 552 (5th Cir. 1998) .. 9

In re Winship, 397 U.S. 358 (1970) ........... 8,10

Ivan V. v. City of New York, 407 U.S. 203 (1972) .. 9

Lanier v. United States, 220 F.3d 833 (7th Cir. 2000) 9

Lloyd v. United States, 407 F.3d 608 (3d Cir.2005) 11

Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562 (2005) 6

Mullaney v. Wilbur, 421 U.S. 684 (1975) ........ 11

Murr v. United States, 200 F.3d 895 (6th Cir. 2000) 9

Nutter v. White, 39 F.3d 1154 (11th Cir. 1994) .... 9

Ring v. Arizona, 536 U.S. 584 (2002) ........... 11

Ross v. United States, 289 F.3d 677 (11th Cir. 2002) 9

Santana-Madera v. United States, 260 F.3d 133

Se Re NEE oo ok chee ee Ke de bees 9

Schriro v. Summerlin, 542 U.S. 348 (2004) ... 10,11

Sullivan v. Louisiana, 508 U.S. 275 (1993) ...... 10

Teague v Lane, 489 U.S. 288 (1989) ......... passim

Vv

Tillman v. Cook, 215 F.3d 1116 (10th Cir. 2000)... 9

Tyler v. Cain, 533 U.S. 656, 665 (2001) 7,9, 10

United States v. Ameline, 409 F.3d 1073

(9™ Cir. 2005)

United States v. Antonakopoulos, 399 F.3d 68

(1st Cir. 2005)

United States v. Archdale, 229 F.3d 861

(9th Cir. 2000)

United States v. Booker, 543 U.S. 220 (2005) . . passim

United States v. Buckland, 277 F.3d 1173

(9th Cir. 2002)

United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005) 9

United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) 9

United States v. Cruz, 423 F.3d 1119 (9th Cir. 2005)10

United States v. Flowers, 145 F.3d 1342

(9th Cir.,1998)

United States v. Hughes, 396 F.3d 375

(4th Cir. 2005).

United States v. Johnson, 457 U.S. 537 (1982) .... 7

United States v. Lopez, 248 F.3d 427 (5th Cir. 2001) 9

United States v. Montalvo, 331 F.3d 1052

SRG, 2. cs beg bbe Otek bOeeeh 048 Oa dO 9

United States v. Oliver, 397 F.3d 369 (6th Cir. 2005) 8

United States v. Paladino, 401 F.3d 471

CE I a yok 56 bed Menke wake maw ee 9

United States v. Sanchez-Cervantes, 282 F.3d 664

EAT Renee iar Se ennye ee eeu m Re Sue free 13

Varela v. United States, 400 F.3d 864

ee ea he weeks 10

West v. Vaughn, 204 F.3d 53, 61-63 (3d Cir. 2000) . 9

FEDERAL STATUTES

eee 4

TE ND oor vk a cdcsccevascesccss 1

28 U.S.C. § 2255 pera. 6(3) ................... 12

PUI I a gos oy vy cc as 2

FEDERAL RULES

POM, Be SE. Fs BE iw ci vc a viccsssacseswas 2

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

United States of American v. Jerry John Fiorillo, 06-

17221 entered November 13, 2007 (not reported)

Order Granting Request for Certificate of Appealability

in Part entered November 20, 2006

Memorandum Opinion and Order Denying Motion for

Summary Judgment and Denying Petition for Writ of

Habeas Corpus, October 2, 2006

United States v. Hermanek, 47 Fed.Appx. 439 (9™ Cir.

2002) (not reported)

The decisions below of the Ninth Circuit and of the

United States District Court for the Northern District

of California were not reported. The decisions are

included in the Appendix.

JURISDICTION

The judgment of the U.S. Court of Appeals for the Ninth

Circuit of which petitioner John Jerry Fiorillo seeks

review was entered November 13, 2007. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Petitioner intends to rely upon the following

constitutional provisions, treaties, statutes, rules,

ordinances and regulations:

U.S. Co V:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shal!

any person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken “»r public

use, without just compensation.

U.S. Const. Amend. VI:

In all crimi rosecutions, the accused shall enjoy the

right to a po! | and public trial, by an impartial jury

of the State an district wherein. the crime shall have

lin committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation: to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense,

28 U.S.C, §2255:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground that the sentence was

imposed in violation of the Constitution or lews of the

United States, or that the court was without jurisdiction

to impose such sentence, or that the sentence was in

excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move the

court which imposed the sentence to vacate, set aside or

correct the sentence.

STATEMENT OF THE CASE

Following a four month jury trial, Petitioner was

convicted of one count of conspiracy to distribute

cocaine, six counts of possession with intent to

distribute cocaine and one count of use of a counterfeit

access device (cell phone) with intent to defraud.

Following the trial, the defendants moved for a mistrial

on the grounds of juror misconduct. On June 27, 1997,

the district court granted the defendants’ motion and

declared a mistrial. The Government appealed and on

May 14, 1998, the Ninth Circuit reversed and

remanded. United States v. Flowers, 145 F.3d 1342 (9™

Cir. ,1998).

Petitioner renewed his motion for a new trial which

was denied by the Court on December 16, 1998. On

February 16, 1999, the district court found that

Appellant was guilty of the distribution of 58 kilos of

3

cocaine and sentenced him to the bottom of the

guideline range to 360 months imprisonment.

Both Petitioner and his co-defendant, Anthony Flowers

challenged their sentences under Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct.. 2348 (2000) because

the drug quantity associated with their offenses was not

submitted to the jury and found beyond a reasonable

doubt (Hermanak, 47 Fed.Appx. at 445-446). On

appeal, Fiorillo argued that the stacking provisions of

U.S.S.G.§5G1.2(d) should not be used as an end-run

around Apprendi - that is, that the drug quantity must

be submitted to a jury and found beyond a reasonable

doubt.

The Ninth Court applied its analysis in United States

v. Buckland, 277 F.3d 1173 (9* Cir. 2002) to both

Fiorillo’s and Flowers’ Apprendi challenges.

Distinguishing this case from Buckland (where the

defendant conceded the drug quantities on the record),

the Court of Appeals explicitly rejected the

government's argument that no reasonable jury could

have found beyond a reasonable doubt the Fiorillo’s

offenses did not involve at least 500 grams of cocaine

(Id at 446-447). However, the Court rejected Fiorillo’s

claim that the “stacking provisions”of

U.S.S.G.§5G1.2(d) could not be used to cure the failure

to submit the drug quantities to the jury and affirmed

his 360 months sentence.

In contrast, the Court vacated Flowers’ conviction and

remanded for resentencing. The Court applied

exactly the same analysis but relying on its decision in

United States v. Archdale, 229 F.3d 861, 870 (9™ Cir.

4

2000) held that Flowers’ 336 month sentence exceeded

the allowable total minimum punishment by 12 months.

Accordingly, Flowers was remanded for resentencing.

On February 24, 2003, this Court denied Appellant’s

petition for a writ of certiorari at which point his

conviction became final.

On February 24, 2004, Petitioner filed a Motion to

Correct his Sentence under 28 U.S.C. § 2255.

Following this Court’s decision in Blakely uv.

Washington, 542 U.S. 296 (2004), on November 3, 2004,

Petitioner filed a motion to amend his §2255 motion to

include the relitigation of his Apprendi claim in light of

the Supreme Court’s decision in Blakely v. Washington,

542 U.S. 296, 124 S.Ct. 2531 decided on June 24, 2004

on the ground that his sentence violated his Sixth

Amendment right to trial by jury because neither the

drug quantity associated with his offense nor the four

level enhancement imposed for his role in the offense

and for possession of a firearm were submitted to the

jury and found beyond a reasonable doubt and because

the sentencing court believed that it was bound by the

sentencing guidelines.

Fiorillo’s argument that his Apprendi/Blakely claim

related back to his original timely filed §2255 motion in

accordance with the Ninth Circuit decision in Felix v.

Mayle,379 F.3d 612 (9th Cir.2004) was unopposed by

the Government. On May 3, 2005, the district court

granted Fiorillo’s motion for leave to amend his petition.

On October 2, 2006, the Court dismissed the Petition on

the grounds that Blakely / Booker was not retroactive

and thus relief was barred under §2255.

5

On October 10, 2007 Appellant filed a notice of appeal

and a request for a certificate of appealability . On

November 20, 2006, the district court, denied a

certificate of appealability as to Petitioner’s sentencing

claims on the grounds that his claims were time barred

as result of this Court’s decision in Mayle v. Felix, 545

U.S. 644, 125 S.Ct. 2562 (2005) decided during the

pendency of the amended petition and that in any

event neither Blakely nor Bouoker are retroactive and

thus do not apply to cases on collateral review.

On January 6, 2007, Fiorillo moved to expand the

certificate of appealability to include his sentencing

claims and sought recall of the mandate in light of his

court’s decision in Carrington v. United States, 470 F.3d

920 (9" Cir. 2006). Appellant’s request was denied on

February 16, 2006.

The decision of the district court was affirmed on appeal

on November 13, 2007.

REASONS FOR GRANTING THE PETITION

This petition presents an opportunity for the Court to

settle two questions of significant import for the many

thousands of federal defendants who remain

incarcerated under prison terms imposed to punish

conduct never proved beyond a reasonable doubt. See

Sup. Ct. R. 10(c).

The first question on which Petitioner seeks review is

essentially the one on which this Court granted

6

certiorari in Burton v. Stewart, 127 S.Ct. 793 (2007) but

did not reach for jurisdictional reasons: whether,

Blakely as extended to Booker, like other decisions

extending the requirement that criminal culpability be

proved beyond a reasonable doubt, announced a

watershed rule of criminal procedure.

The second question is whether Teague should apply

where the very issue being contested in light of new

constitutional law was duly raised on appeal.

I

BLAKELY/BOOKER ANNOUNCED A

‘WATERSHED’ RULE OF CRIMINAL

PROCEDURE WITHIN THE MEANING

OF TEAGUE

This Court has held that under the doctrine set forth in

Teague v. Lane, 489 U.S. 288 (1989), new procedural

rules do not apply retroactively unless they fall into one

of two exceptions. See Beard v. Banks, 542 U.S. 406, 411

(2004).

In Burton v. Stewart, 127 S.Ct. 793, 794 (2007), this

Court granted certiorari to consider the retroactivity of

the rule announced in Blakely v. Washington. In Burton,

the petitioner focused, as here, on the requirement of

proof beyond a reasonable doubt rather than the

freestanding requirement that facts essential to

sentence be found by a jury. For jurisdictional reasons,

however, the Court was unable to reach the question on

which it granted certiorari. Burton, 127 S. Ct. at 796.

The within petition now presents an opportunity to

7

decide it.

Fiorillo’s §2255 amended petition asserting

Blakely/Booker error well within one year of the Blakely

decision, but was deemed out of time under Ninth

Circuit precedent holding that this Court’s decision in

United States v. Booker, 543 U.S. 220 (2005) rendering

the sentencing guidelines advisory is not to be given

retroactive effect. In this posture, the case permits the

Court to review the recurring question of whether

Teague controls the construction of the phrase “made

retroactively applicable to cases on collateral review” in

§2255 para. 6(3) or otherwise limits the availability of

relief on motions under the statute.

Should Fiorillo’s motion be held timely, the matter

should be remanded for the district court to determine

whether his sentence was, as asserted, infected by

Booker error and, if so, whether and how to remedy

that infirmity.

A. The Failure to Find Sentencing Facts By

Proof Beyond A Reasonable Doubt

Substantially Diminishes Accuracy and

Neglects a Bedrock Element of Fairness

A watershed rule is one that “implicat[es] the

fundamental fairness and accuracy of the criminal

proceeding.” Graham uv. Collins, 506 U.S. 461, 478

(1993). To qualify, a rule must meet two requirements:

its infringement must “seriously diminish the likelihood

of obtaining an accurate conviction,” and the rule must

8

“alter our understanding of the bedrock procedural

elements essential to the fairness of a proceeding.” Tyler

v. Cain, 533 U.S. 656, 665 (2001). Booker's extension of

the requirement of proof beyond a reasonable doubt to

federal sentencing proceedings should be held to meet

this definition.

The Court has previously directed that the requirement

of proof beyond a reasonable doubt is so essential to the

right of fair trial as to require “complete retroactive

effect.” Hankerson v. North Carolina, 432 U.S. 233, 243

(1977); see also United States v. Johnson, 457 U.S. 537,

544 (1982). Failure to uphold the reasonable doubt

standard “substantially impairs [the criminal trial's]

truth-finding function and so raises serious questions

about the accuracy of guilty verdicts.” Hankerson, 432

U.S. at 243. As a “prime instrument for reducing the

risk of ... factual error,” the requirement of proof beyond

a reasonable doubt is “indispensable, for it impresses on

the trier of fact the necessity of reaching a subjective

state of certitude of the facts in issue.” In re Winship,

397 U.S. 358, 363-64 (1970).

Even more fundamentally, the reasonable doubt

standard “provides concrete substance for the

presumption of innocence - that bedrock ‘axiomatic and

elementary’ principle whose ‘enforcement lies at the

foundation of the administration of our criminal law.’ ”

Winship, 397 U.S. at 363 (quoting Coffin v. United

States, 156 U.S. 432, 453 (1895)).

The dual functions served by the standard make clear

that its application in federal sentencing proceedings

9

necessarily implicates both “accuracy” and

“fundamental fairness” within the meaning of the

watershed rule exception. As the standard is a “prime

instrument for reducing the risk of ... factual error” and,

conversely, as the rule's neglect “substantially impairs”

the truth-finding function, it is clear that the

requirement of proof beyond a reasonable doubt

satisfies the first element of the definition of a

“watershed” rule, namely, that its infringement

“seriously diminish[es] the likelihood” of an accurate

determination of culpability.

Moreover, the application of a “bedrock axiomatic and

elementary principle,” Winship, 397 U.S. at 363,

satisfies the second “watershed” element, requiring that

the new rule “alter our understanding of the bedrock

procedural elements” of a fair federal sentencing

hearing. Booker 's essential contribution to fundamental

fairness has found expression in the exercise of

discretion by numerous courts of appeals to correct

unpreserved Booker error that “seriously affected] the

fairness, integrity, or public reputation of judicial

proceedings.” United States v. Oliver, 397 F.3d 369, 378

(6th Cir. 2005); see also United States ov.

Antonakopoulos, 399 F.3d 68, 81-82 (1st Cir. 2005);

United States v. Crosby, 397 F.3d 103, 119 (2d Cir.

2005) (Newman, J.); United States v. Hughes, 396 F.3d

375, 381 n.8 (4th Cir. 2005) (Wilkins, C.J.); United

States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005)

(Posner, J.), cert. denied, 546 U.S. 1175 (2006); United

States v. Ameline, 409 F.3d 1073, 1079, 1081 (9th Cir.

2005) (en banc); United States v. Coles, 403 F.3d 764,

767 (D.C. Cir. 2005) (per curiam).

Consonant with the reasonable doubt standard's

watershed quality, this Court and the circuits have

repeatedly held, as in Hankerson, that new rules giving

effect to the standard must be applied retroactively

after the conclusion of direct appeal. Jvan V. v. City of

New York, 407 U.S. 203, 205 (1972); United States v.

Montalvo, 331 F.3d 1052, 1055-56 (9th Cir. 2003)

(considering rule announced in Richardson v. United

States, 526 U.S. 813 (1999)); Ross v. United States, 289

F.3d 677, 681 (11th Cir. 2002) (same); Santana-Madera

v. United States, 260 F.3d 133, 139 (2d Cir. 2001)

(same); United States v. Lopez, 248 F.3d 427, 432 (5th

Cir. 2001) (same); Murr v. United States, 200 F.3d 895,

906 (6th Cir. 2000) (same); Lanier v. United States, 220

F.3d 833, 838 (7th Cir. 2000) (same); Gaines v. Kelly,

202 F.3d 598, 605 (2d Cir. 2000) (considering rule

announced in Cage v. Louisiana, 498 U.S. 39 (1990));

West v. Vaughn, 204 F.3d 53, 61-63 (3d Cir. 2000)

(same), overruled on other ground, Tyler v. Cain, 533

U.S. 656, 661-62 (2001); Tillman v. Cook, 215 F.3d

1116, 1122 (10th Cir. 2000) (considering rule of Cage);

Humphrey v. Cain, 138 F.3d 552, 553 (5th Cir. 1998) (en

banc) (same); Adams v. Aiken, 41 F.3d 175, 178-79 (4th

Cir. 1994) (same); Nutter v. White, 39 F.3d 1154,

1157-58 (11th Cir. 1994) (same); Hall v. Kelso, 892 F.2d

1541, 15438 n.1 (1ith Cir. 1990) (considering rule

announced in Sandstrom v. Montana, 442 U.S. 510

(1979), and Francis v. Franklin, 471 U.S. 307 (1985)).

This Court has also held that a failure to give proper

effect to the reasonable doubt standard is “structural

error” necessarily invalidating any conviction. See

Sullivan v. Louisiana, 508 U.S. 275, 280-82 (1993).

Because the definition of structural error, see Arizona v.

11

Fulminante, 499 U.S. 279, 310 (1991), is congruent with

the definition of a watershed rule, Sullivan directs that

any new rule extending the reasonable doubt standard

falls within the Teague exception. See Tyler v. Cain, 533

U.S. at 671-74 (Breyer, J., dissenting) (identifying

congruence); id. at 666-67 & n.7 (opinion of the Court).

The circuit court decisions holding Booker not to be

retroactive are at odds with the reasonable doubt

standard's place at the “foundation of the

administration of our criminal law,” Winship, 397 U.S.

at 363. The courts have not recognized the watershed

character of Booker 's requirement that facts exposing

a defendant to enhancement under the mandatory

Guidelines had to be proved beyond a reasonable doubt,

see Cunningham, 127 S. Ct. at 863-64.

Several courts have failed to distinguish between

Booker 's requirement of proof beyond a reasonable

doubt and its separate requirement that

sentence-enhancing facts be found by a jury. These

courts have then erroneously treated Schriro uv.

Summerlin, 542 U.S. 348 (2004), as controlling. See

Humphress v. United States, 398 F.3d 855, 863 (6th

Cir.), cert. denied, 546 U.S. 885 (2005); United States v.

Cruz, 423 F.3d 1119, 1120-21 (9th Cir. 2005), cert.

denied, 546 U.S. 1155 (2006); Varela v. United States,

400 F.3d 864, 867-68 (11th Cir.), cert. denied, 546 U.S.

924 (2005). In Summerlin, however, this Court had no

occasion to consider the reasonable doubt standard

extended in Booker , because the case addressed a state

capital sentencing scheme that had always required

sentencing facts to be proved beyond a reasonable

12

doubt. Jd. at 353 (noting that rule sought to be given

retroactive effect, announced in Ring v. Arizona, 536

U.S. 584 (2002), “rested entirely on the Sixth

Amendment's jury-trial guarantee”). While the same

jury trial right was also one aspect of Booker 's holding,

the Guidelines differed from the scheme considered in

Summerlin in that the Guidelines provided for

mandatory enhancement on the basis of facts proved by

a simple preponderance rather than beyond a

reasonable doubt.

In addition, the circuit decisions conflict with the

precedent of this Court, which has held that the Due

Process Clause requires proof beyond a reasonable

doubt of facts essential “not only [to] guilt or innocence

... but also [to] the degree of criminal culpability.”

Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975). The

Summerlin decision confirms the error of this line of

analysis. See Lloyd v. United States, 407 F.3d 608,

614-15 (3d Cir.), cert. denied, 546 U.S. 916 (2005)

(explaining why “Summerlin leaves little doubt that the

‘watershed rule’ exception can apply to a procedural rule

that only affects sentencing”).

Most relevant to Petitioner claim erroneously

treatment of the question of Booker retroactivity

exclusively by reference to the remedy by which Booker

preserved an advisory Guidelines regime. They fail to

acknowledge the existence of a distinct issue as to the

proper scope to be given Booker's rule extending the

reasonable doubt standard.

Petitioner’s assertion, made first as an Apprendi issue

13

on appeal and then again under Blakely and again

under Booker, is that he was punished in violation of

the rule that sentence may not be enhanced upon facts

never tested against the reasonable doubt standard. It

is this proscription which, if“made retroactive,” renders

Fiorillo’s petition timely under 28 U.S.C. § 2255 para.

6(3). Booker 's salvage of a substantial part of the

Guidelines going forward did not cure constitutional

errors that had already occurred. The Ninth Circuit’s

failure to acknowledge this distinction calls to mind this

Court's recent exhortation that “Booker 's remedy for

the Federal Guidelines, in short, is not a recipe for

rendering our Sixth Amendment case law toothless.”

Cunningham, 127 S. Ct. at 870;see also id. at 869-70 &

n.15 (holding that state sentencing regime under which

statutory enhancement requires judge to find facts by

simple preponderance violates rule of Booker, even

when decision to enhance is discretionary).

II

THE TEAGUE RULE ON

RETROACTIVITY SHOULD NOT BAR

RELIEF WHERE THE VERY ISSUE

BEING CONTESTED IN LIGHT OF

NEW CONSTITUTIONAL LAW WAS

DULY RAISED ON APPEAL

Teague holds that unless the claim falls into one of two

narrow exceptions, a petitioner is barred from raising a

claim for the first time in collateral proceedings unless he

can show cause for the default and prejudice resulting

therefrom. Compare United States v. Haynesworth, 34

4

Fed.Appx. 133 (4 Cir. 2002)(claims based directly on

Apprendi may not be raised for the first time in a §§ 2255

motion. Where the claims have not been preserved at

trial or on appeal, they are procedurally defaulted) with

Campbell v. United States, 364 F.3d 727 (6" Cir 2004)(by

timely objecting on direct appeal to the drug quantities,

Apprendi claim is preserved for §§2255).

Fiorillo’s sentencing claim raised first as a Blakely claim in

the amended petition is not Teague barred because on

appeal he specifically challenged his sentence on the

grounds that the drug quantities had not been submitted

to a jury and found beyond a reasonable doubt.

Therefore, the Ninth Circuit’s holdings in United States v.

Sanchez-Cervantes, 282 F.3d 664, 667 (9" Cir. 2002)and Cook

v. United States, 2004 WL 2365221 (9™ Cir. 2004) that

neither Apprendi nor Blakely apply retroactively to

petitions for post conviction relief do not fall within the

rule of retroactivity set forth inin Teague v. Lane, 489 US.

288, 229, 109 S.Ct. 1060, 1068 (1989).

Teague and its progeny regarding the retroactivity of new

rules of constitutional law do not overrule the

fundamental principle set forth by this Court in in Davis

v. United States, 417 U.S. 333, 94 S.Ct. 2298 (1974) that

a claim, which has been raised on direct appeal, involving

an intervening change in the controlling law is cognizable

in a §2255 motion. Davis, 417 U.S. at 342. Fiorillo’s

Blakely claim as to the drug quantities fits squarely within

the holdings of Davis and therefore should be cognizable

15

when reasserted in his §2255 petition.

CONCLUSION

For the foregoing reasons this Court should grant the

petition for certiorari.

Respectfully,

Flora Edwards

Attorney for Petitioner

115 Broadway - Suite 1505

New York, NY 10006

212-785-3344