United States Sixth Circuit

Denial of petitioner's motion to vacate his resentencing pursuant to 28 U.S.C. section 2255 is affirmed as the court rejects his claim that, because he argued that the principle announced in Booker applied to his resentencing, he was entitled to have Booker apply retroactively despite the fact that Booker was decided after his resentencing became final. Also, where a claim of error originates at resentencing and could not have been challenged at the original sentencing proceeding, the first section 2255 motion challenging that claim is not a "second or successive" motion within the meaning of section 2255, regardless of whether another section 2255 motion has been previously filed.

Appellate Information

• Decided 01/24/2007
• Published 01/24/2007

Judges

• Before CLAY, ROGERS, and SUTTON, Circuit Judges.

Court

• United States Sixth Circuit

Counsel

• For Appellees:
  
• ARGUED:  Patricia A. Maceroni, Mt. Clemens, Michigan, for Appellant.  Wayne F. Pratt, Assistant United States Attorney, Detroit, Michigan, for Appellee.   ON BRIEF:  Patricia A. Maceroni, Mt. Clemens, Michigan, for Appellant.  Wayne F. Pratt, Assistant United States Attorney, Detroit, Michigan, for Appellee.