Retroactivity of Booker on Collateral Review

Marlon McReynolds v. United States, Case No. 04-2520 (02/02/2005):The three petitioners, all proceeding pro se, sought relief under 28 U.S.C. §2255. Invoking Apprendi v. New Jersey, they argued that their jury, not the judge, should have decided the weight of the drugs. On appeal, the Seventh Circuit issued a certificate of appealability in light of the Supreme Court’s decision in Booker. But the Seventh Circuit then declared that Booker is not retroactive to cases on collateral review. The opinion further stated that it had been circulated to all active judges under Circuit Rule 40(e), and no judge favored a hearing in banc.

In explaining its decision, the Court summarized the Breyer majority opinion as follows: ". . . decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence. . . . [T]he only change would be the degree of flexibility judges would enjoy in applying the guideline system." Under that characterization, Booker did not, in the Court’s view, fundamentally improve the accuracy of the criminal process.