Isaac JOHNSON, Applicant, v. Bradley J. ROBERT, Warden, Centralia Correctional Center, Respondent, 431 F.3d 992

PER CURIAM. Isaac Johnson seeks permission to initiate another collateral attack on his conviction and 80-year sentence for murder. See 28 U.S.C. § 2244(b)(3). Although his application is not entirely clear, he relies in substantial part on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and implies that he would invoke Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which elaborates on how Apprendi applies to sentencing in state prosecutions. Apprendi was decided several years ago, and Blakely was issued on June 24, 2004.

Johnson’s application under § 2244(b)(3) was not filed until December 7, 2005, more than a year later. Because 28 U.S.C. § 2244(d)(1) establishes a one-year period of limitations, Johnson’s application is too late. The year usually runs from the date on which the conviction became final, which for Johnson was long before the Supreme Court decided Apprendi. A proviso in § 2244(d)(1)(

C) restarts the clock on “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review”. Whether we use Apprendi or Blakely as the benchmark, “the date on which the constitutional right asserted was initially recognized by the Supreme Court” is more than a year before Johnson filed this application. The Supreme Court held in Dodd v. United States, —— U.S.-, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005), that a provision in 28 U.S.C. § 2255 materially identical to § 2244(d)(1)(

C) runs from the date the right was initially recognized, even if the Court does not declare that right to be retroactive until later. Dodd is equally applicable to § 2244(d)(1)(C), so there is no point in authorizing Johnson to file another collateral attack. Because he waited too long, it is unnecessary to decide whether his claim would be a substantial one on the merits. Johnson adverts to a number of other potential contentions, such as the possibility that his trial lawyer furnished ineffective assistance, but these likewise would be untimely. Johnson should have pursued them in his initial federal collateral attack. The application is denied.