Opinion
File No. 1:04-CV-450.
February 18, 2005
OPINION
This matter comes before the Court on Movant Jeffrey Askanazi's pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence.
On December 21, 1998, a jury convicted Askanazi of thirty-three counts of mail fraud in violation of 18 U.S.C. § 1341. United States v. Askanazi, Case No. 1:98-CR-130 (W.D. Mich.) (Docket # 104). Askanazi was sentenced on August 20, 1999, to thirty-six months in prison, restitution of $411,000, and three years Supervised Release. (Docket # 162). Askanazi's conviction and sentence were affirmed on appeal. United States v. Askanazi, Nos. 99-2009, 99-2089, 99-2205 (6th Cir. July 16, 2001) (unpublished opinion). Askanazi did not seek certiorari.
On August 5, 2002, Askanazi filed a motion to vacate his sentence under 28 U.S.C. § 2255. Askanazi v. United States, Case No. 1:02-CV-558 (W.D. Mich.). His motion was denied on July 7, 2003. (Docket # 14). On February 6, 2004, at the conclusion of a supervised release violation hearing, this Court determined that Askanazi had violated multiple conditions of supervised release and issued an amended judgment, sentencing Askanazi to 18 months in prison. Case No. 1:98-CR-130 (Docket # 222). Askanazi did not appeal his amended judgment.
On July 2, 2004, Askanazi filed the instant § 2255 motion, raising the following five arguments: (1) that his original sentence was based on a loss amount determined by the Court, not the jury in violation of his Sixth Amendment rights as outlined in Blakely v. Washington, 124 S. Ct. 2531 (2004); (2) that testimonial hearsay was introduced at his supervised release violation hearing in violation of his Sixth Amendment right to confrontation of witnesses as outlined in Crawford v. Washington, 124 S. Ct. 1354 (2004); (3) that the Court's sentence on his supervised release violation exceeded the sentencing guideline range in violation of Blakely; (4) that he did not waive his right to a jury determination of relevant facts at the supervised release violation hearing in violation of Blakely; and (5) that his changed family circumstances require special consideration.
I.
Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent. Bousley v. United States, 523 U.S. 614, 622 (1998). Askanazi never raised a Blakely issue on his appeal of his underlying conviction, and he never appealed any aspect of his amended sentence after the revocation of his term of supervised release. Neither has he attempted to show cause, actual prejudice, or that he is actually innocent. The fact that some of the arguments raised in this § 2255 motion would have been futile before Blakely and Crawford were decided does not constitute cause. "[F]utility cannot constitute cause if it means simply that a claim was `unacceptable to that particular court at that particular time.'" Bousley, 523 U.S. at 623 (quoting Engle v. Isaac, 456 U.S. 107, 130, n. 35 (1982)). Because all five of Askanazi's claims have been procedurally defaulted, they are not cognizable by this Court on collateral review. However, because there are so many other impediments to Askanazi's claims, the Court will not end its analysis here.
II.
Askanazi's first argument in support of his § 2255 petition must be analyzed separately from his remaining arguments because it relates to the validity of his original sentence. This is the second § 2255 petition filed by Askanazi with respect to his original sentence. See Case No. 1:02-CV-558. A second or successive petition must be certified as provided in 28 U.S.C. § 2244 by a panel of the court of appeals to contain "newly discovered evidence" or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255, ¶ 8. Askanazi has not obtained certification from the court of appeals of his second or successive petition.
When a second or successive petition is mistakenly filed in the district court, the appropriate disposition is normally to transfer the case to the court of appeals pursuant to 28 U.S.C. § 1631. Sims v. Terbush, 111 F.3d 45, 47 (6th Cir. 1997). Section 1631 suggests transfer where there is a want of jurisdiction "if it is in the interest of justice." In this case the Court does not view a transfer to be in the interest of justice. A second or successive petition requires the court of appeals to determine whether the case has been made retroactive "by the Supreme Court." 28 U.S.C. § 2255, ¶ 8(2). The Supreme Court has not made Blakely retroactive. See, e.g., In re Anderson, ___ F.3d ___, 2005 WL 123923, *3-4 (11th Cir. Jan. 21, 2005) (holding that the Supreme Court has not made Booker or Blakely retroactive to cases already final on direct review); Green v. United States, 2005 WL 237204, *1 (2nd Cir. Feb. 2, 2005) (holding that the Supreme Court has not clearly made Blakely or Booker retroactively applicable to cases on collateral review). Moreover, the retroactivity analysis under ¶ 8 for a second or successive petition is more narrow than the retroactivity analysis under Teague v. Lane, 489 U.S. 288 (1989). This Court has conducted the Teague retroactivity analysis in Part III below with respect to Askanazi's third and fourth claims. Because this Court is satisfied that Askanazi's Blakely arguments do not fall within even the broader retroactivity analysis under Teague, a petition for certification would appear to be a futile effort. Accordingly, this Court declines to transfer Askanazi's first argument to the Court of Appeals under 28 U.S.C. § 1631 because it would not be in the interests of justice. Of course, Askanazi is not prohibited from filing his own request for a second or successive petition with the Sixth Circuit Court of Appeals.
III.
Askanazi's second, third and fourth challenges relate to his amended sentence. These challenges were filed within one year of the date on which the judgment of conviction became final and are timely under § 2255, ¶ 6(1). However, each of these arguments rests on the retroactive application of Supreme Court cases that were decided after the sentence was entered. Because habeas corpus is a collateral remedy, and because society has an interest in the finality of judgments, the Supreme Court has articulated the general rule that new procedural rules will not be applied retroactively to cases on collateral review. Teague, 489 U.S. at 306-10. "Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Id. at 310. The two exceptions that permit the retroactive application of a new rule of law on collateral review of cases which have become final are: (1) when the new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Teague, 489 U.S. at 311 (quotation omitted); or (2) when it involves "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Graham v. Collins, 506 U.S. 461, 478 (1993) (quotation omitted). See also Regalado v. United States, 334 F.3d 520, 527 n. 8 (6th Cir. 2003).The Teague retroactivity analysis requires the court to determine: 1) the date on which the defendant's conviction became final for purposes of collateral review; 2) whether the principle invoked by the defendant is a "new rule" of criminal procedure; and, if so, then 3) whether the rule falls within one of the two narrow exceptions to the Teague doctrine. O'Dell v. Netherland, 521 U.S. 151, 156-57 (1997).
As a general rule, a conviction becomes final for purposes of collateral attack upon conclusion of direct review. United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002). When a federal criminal defendant does not take a direct appeal to the court of appeals, his judgment becomes final upon the expiration of the period in which he could have appealed, even when no notice of appeal was filed. Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004).
Askanazi's amended sentence was entered on February 8, 2004. His amended sentence became final ten days later when his time for filing an appeal expired. See FED. R. APP. P. 4(b)(1). Crawford was decided on March 8, 2004, and Blakely was decided on June 24, 2004. Accordingly, Askanazi's amended sentence became final before the cases on which he relies were decided.
The second step of the Teague analysis requires the Court to consider whether the principles invoked by the defendant on collateral review are new rules of criminal procedure. "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301. Blakely extended the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), by holding that, the relevant "statutory maximum" for purposes of Apprendi "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, 124 S. Ct. at 2537 (emphasis in original). Prior to Blakely every federal court of appeals had held that Apprendi applied only to sentencing decisions that increased the statutory maximum penalty and that it did not apply to guideline calculations made within the statutory maximum. Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) (citing cases).
In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
Although Blakely concerned the State of Washington's sentencing scheme, the Blakely analysis was extended to federal sentencing guideline issues in the recent Supreme Court opinion in United States v. Booker, 125 S. Ct. 738 (2005).
Crawford held that the admission of out-of-court testimonial statements by witnesses absent from trial violates the Confrontation Clause unless the witnesses are unavailable and the defendants had a prior opportunity to cross-examine them, regardless of whether such statements are deemed reliable by the court. Crawford, 124 S. Ct. at 1374. In articulating this new rule the Court overruled the long-established precedent of Ohio v. Roberts, 448 U.S. 56 (1980). Crawford, 124 S. Ct. at 1374 (Rehnquist, C.J., dissenting).
A new rule is a procedural rule if it regulates only the manner of determining the defendant's culpability. Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004). In Schriro the Supreme Court decided that the rule announced in Ring v. Arizona, 536 U.S. 584 (2002), that juries rather than judges must determine the presence or absence of aggravating factors required for imposition of the death penalty, was procedural because it merely regulated the manner of determining sentence rather than altering the range of conduct that state law subjected to the death penalty. Schriro, 124 S. Ct. at 2522-24. The rationale of Schriro applies with equal force to both Blakely and Crawford. Neither Blakely nor Crawford altered "the range of conduct or class of persons that the law punishes." Schriro, 124 S. Ct. at 2523. The Court is satisfied that both Blakely and Crawford established new rules of criminal procedure because they overruled established precedents and did not alter the range of conduct or class of persons that the law punishes.
The third step of the Teague analysis requires the Court to consider whether the new rules of criminal procedure fall within one of the two Teague exceptions to the general rule of non-retroactivity. The first exception applies to rules forbidding punishment "of certain primary conduct" and to "rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Beard v. Banks, 124 S.Ct. 2504, 2513 (2004) (quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989)). Rules that fall within Teague's first exception "are more accurately characterized as substantive rules not subject to [ Teague's] bar." Schriro, 124 S.Ct. at 2522, n. 4. See also Beard, 124 S. Ct. at 2510, n. 3. Because this Court has determined above that the new rules announced in Blakely and Crawford are procedural rather than substantive, they do not implicate Teague's first exception.
This Court must accordingly determine whether Blakely and Crawford fall within the second Teague exception. The Supreme Court has "repeatedly emphasized the limited scope of the second Teague exception, explaining that it is clearly meant to apply only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty." Beard, 124 S. Ct. at 2513 (quoting O'Dell, 521 U.S. at 157). New rules of procedure "merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Schriro, 124 S. Ct. at 2523. Because of this "more speculative connection to innocence," the Supreme Court gives retroactive effect to only a small set of "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Schriro, 124 S. Ct. at 2523 (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)). "That a new procedural rule is `fundamental' in some abstract sense is not enough; the rule must be one `without which the likelihood of an accurate conviction is seriously diminished.'" Schriro, 124 S. Ct. at 2523 (quoting Teague, 489 U.S. at 313) (emphasis in original). According to the Supreme Court, "this class of rules is extremely narrow." Id. In fact, the Supreme Court has yet to find a new rule that is "so central to an accurate determination of innocence or guilt," as to fall under the second Teague exception. Beard, 124 S. Ct. at 2513-14.
In Schriro the Supreme Court rejected the argument that the rule announced in Ring constituted a watershed rule under the second Teague exception. In reaching this conclusion the Court noted that despite the fundamental nature of the right to jury trial incorporated in the Sixth Amendment, judicial factfinding did not so seriously diminish accuracy that there was an impermissibly large risk of punishing conduct the law does not reach. Schriro, 124 S. Ct. at 2525-26. In other words, the procedural rules affecting the right to a jury were not sufficiently fundamental to the concept of ordered liberty to permit retroactive application of the rule announced in Ring. The holding of Schriro in this regard requires rejection of any argument that Blakely represents a "watershed" holding within the meaning of Teague. Accord, In re Dean 375 F.3d 1287, 1290 (11th Cir. 2004) (noting that the Supreme Court strongly implied in Schriro that Blakely is not to be applied retroactively); Lilly v. United States, 342 F. Supp.2d 532, 537 (W.D.Va. 2004) (" Blakely is a new procedural rule that does not meet the requirement of being a watershed rule of criminal procedure."); United States v. Phillips, 2004 WL 2414819, *3 (D.Or. 2004) (declining to apply Blakely retroactively on collateral attack); Morris v. United States, 333 F. Supp.2d 759, 772 (C.D. Ill. 2004) (holding that Blakely cannot be applied retroactively on collateral attack).
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court reaffirmed its holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004), and held that the Sixth Amendment required that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." 125 S. Ct. at 756. In the short time since Booker was decided, the courts that have considered the issue have uniformly held that Booker does not apply retroactively to criminal cases that became final before Booker was decided by the Supreme Court. See, e.g., McReynolds v. United States, ___ F.3d ___, 2005 WL 237642, *2 (7th Cir. Feb. 2, 2005) (" Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005."); United States v. Johnson, ___ F. Supp.2d ___, 2005 WL 170708, *1 (E.D. Va. Jan. 21, 2005) (holding that neither Blakely nor Booker apply retroactively on collateral review); Gerrish v. United States, ___ F. Supp.2d ___, 2005 WL 159642, *1 (D.Me. Jan. 25, 2005) (holding that Blakely and Booker "are not applicable to cases that were not on direct appeal when they were decided.").
The Crawford decision similarly fails to constitute a watershed rule under the second Teague exception. In Crawford, the Court rejected the Roberts test for admissibility of hearsay evidence because it allowed a jury "to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability." 124 S. Ct. at 1370. The Supreme Court observed that the Confrontation Clause's "ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford, 124 S. Ct. at 1370. Crawford rejected the Roberts test not because a judicial determination of reliability was inherently unreliable, but because it violated the Confrontation Clause.
Roberts conditioned the admissibility of hearsay evidence on whether it falls under a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." Crawford, 541 U.S. at 1369 (quoting Roberts, 448 U.S. at 66).
Based upon the Supreme Court's analysis in Crawford, it is clear that the new rule announced in Crawford is not one "`without which the likelihood of an accurate conviction is seriously diminished.'" Schriro, 124 S. Ct. at 2523 (quoting Teague, 489 U.S. at 313) (emphasis in original). Accordingly, this Court finds that Crawford is not subject to retroactive application on collateral review. Accord, Mungo v. Duncan, 393 F.3d 327, 336 (2nd Cir. 2004) (concluding that Crawford is not a "watershed rule" and that it should not be applied retroactively on collateral review); Brown v. Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004) ("we conclude that Crawford is not a watershed decision and is, therefore, not retroactively applicable to Brown's initial habeas petition."). See also Evans v. Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004) (expressing doubts as to whether Crawford applies retroactively to habeas corpus cases).
Application of the Teague analysis leads this Court to the firm conclusion that neither the Blakely decision nor the Crawford decision may be given retroactive effect on collateral review. Accordingly, Askanazi's second, third, and fourth arguments fail to provide a basis for vacating his sentence.
IV.
Finally, Askanazi's challenges to his amended sentence lack merit because they are based upon the mistaken assumption that the same rules that apply to criminal trials applied to his supervised release violation hearing as well. Contrary to Askanazi's assumptions, there is no right to a jury at supervised release violation hearings. See 18 U.S.C. § 3583(e)(3) (authorizing court to revoke a term of supervised release); FED. R. CRIM. P. 32.1(b)(2) (jury not included in list of rights at revocation hearing). Moreover, the Rules of Evidence do not apply to supervised release violation hearings. FED. R. EVID. 1101(d)(3). See also United States v. Waters, 158 F.3d 933, 940 (6th Cir. 1998) (holding that Rule 32.1 does not preclude district court from considering reliable hearsay evidence in supervised release violation hearings). In addition, the Sentencing Guidelines are not binding at supervised release violation hearings. See United States v. West, 59 F.3d 32, 33 (6th Cir. 1995) (holding that the policy statements in Chapter 7 relating to supervised release violations are merely advisory and not binding). Furthermore, the evidence Askanazi complains about was introduced by Askanazi rather than the government and was not testimonial in nature. Accordingly, Askanazi's reliance on Blakely and Crawford in connection with his supervised release violation hearing is misplaced.
Finally, Askanazi's argument relating to changed family circumstances is not cognizable in a habeas petition because it does not tend to show that "the sentence was imposed in violation of the Constitution or laws 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." 28 U.S.C. § 2255.
V.
Askanazi has also filed a motion for bond pending appeal pursuant to 18 U.S.C. § 3143(b). Because Askanazi does not currently have an appeal pending, this Court construes the motion as a motion for bond pending resolution of his § 2255 motion. In light of this Court's determination that his § 2255 motion must be denied, his motion for bond pending appeal will be denied as moot.
VI.
The files and records in this case conclusively show that Movant Jeffrey Askanazi is entitled to no relief under § 2255. Accordingly no evidentiary hearing is required to resolve the merits of the pending motion. For all the reasons stated herein, Askanazi's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 and his motion for bond pending appeal will be denied. An order consistent with this opinion will be entered.