United States Court of Appeals
For the First Circuit
No. 04-2066
ABELARDO CUEVAS,
Petitioner,
v.
C. J. DEROSA, WARDEN, FCI, FT. DIX,
Respondent.
APPLICATION FOR LEAVE TO FILE A SECOND OR
SUCCESSIVE MOTION PURSUANT TO 28 U.S.C. § 2255
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
Abelardo Cuevas pro se.
Michael J. Sullivan, United States Attorney, and Dina Michael
Chaitowitz, Assistant U.S. Attorney.
October 22, 2004
Per Curiam. Petitioner seeks leave to file a second or
successive habeas corpus petition under 28 U.S.C. § 2255. As the
ground for the present petition, petitioner relies on the recent
United States Supreme Court decision in Blakely v. Washington, 124
S. Ct. 2531 (2004).
Under the relevant gatekeeping provision, a new rule of law
can form the basis for a second or successive habeas petition only
if that rule is "made retroactive to cases on collateral review by
the Supreme Court." 28 U.S.C. § 2255, para. 8(2). To date, the
Supreme Court has not decided whether Blakely is even applicable to
the federal sentencing guidelines, see Blakely, 124 S. Ct. at 2538
n.9 ("The Federal Guidelines are not before us, and we express no
opinion on them."), much less declared its ruling in Blakely to be
retroactive to cases on collateral review. Therefore, petitioner
may not rely on Blakely as a ground for filing a second or
successive petition to vacate his federal sentence. See Simpson
v. United States, 376 F.3d 679, 681-82 (7th Cir. 2004); In re Dean,
375 F.3d 1287, 1290 (11th Cir. 2004); see generally Tyler v. Cain,
533 U.S. 656, 663 (2001) (explaining that "a new rule is not 'made
retroactive to cases on collateral review' unless the Supreme Court
holds it to be retroactive").
Of course, if the Supreme Court in the future makes Blakely
retroactive, the petitioner may at that time attempt to assert a
claim by means of a second or successive § 2255 petition. See,
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e.g., Sustache-Rivera v. United States, 221 F.3d 8, 16-17 (1st Cir.
2001). Until that time, however, the instant application must be
considered premature. See id. at 15 n.12.
The application is denied without prejudice.
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