Opinion
CAUSE NO. A-99-CA-634-SS, (CAUSE NO. A-6-CR-131(2)).
April 4, 2001.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The Magistrate Court submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Joseph Benford's Brief in Support of Motion Pursuant to 28 U.S.C. § 2255 (Clerk's Doc. No. 52); the Government's Response (Clerk's Doc. No. 54); and Benford's Reply (Clerk's Doc. No. 55). The matter is accordingly ripe for consideration.
I. GENERAL BACKGROUND
Joseph Benford was charged in a two-count indictment with conspiracy with intent to distribute cocaine base and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 846. Pursuant to a plea agreement, Benford pled guilty to both counts of the indictment. The District Court sentenced Benford to 168 months' imprisonment followed by five years of supervised release. The District Court did not impose a fine but did assess a $100 mandatory assessment fee. Benford timely filed a direct appeal of his conviction and sentence; however, the Fifth Circuit dismissed the appeal for want of prosecution after Benford failed to pay the docketing fee. On October 1, 1999, Benford filed the present motion to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 2255.
II. ISSUE PRESENTED
(1) Is Benford's 2255 Motion time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")?
III. ANALYSIS
A. Benford's Claim is Time-Barred
The Government contends that Benford is time-barred from filing this motion because he did not file the motion within the one-year statue of limitations contained in section 105 of the AEDPA. Passed in 1996, the AEDPA created a one year statute of limitations on habeas petitions filed under 28 U.S.C. § 2255. The AEDPA statute of limitations applies to all habeas petitions filed after its effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). Benford's motion was filed October 1, 1999, clearly within the scope of the statute.
Section 2255 provides in pertinent part that:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims could have been discovered through the exercise of due diligence.28 U.S.C. § 2255. Benford has not alleged or produced any evidence that the Government impeded him from filing a § 2255 motion prior to the end of the limitations period. Benford had sufficient knowledge of the facts at the time his judgment was final that he could have timely filed his motion. Benford has not established that his claims concern a Constitutional right recently recognized by the Supreme Court (or any other court) that would have a retroactive effect on his claims. Thus, subsections (2) — (4) of the one-year limitation rule do not apply in the case at bar. Therefore, Benford's ability to file a § 2255 motion is governed by subsection (1) of the one year limitation period which provides that that period begins to rune from "the date on which the judgment of conviction becomes final."
In his motion, Benford argues that the Supreme Court's decision in Jones v. United States, 119 S. Ct. 1215 (1999), amounts to a case "newly recognizing" a claim that would support his argument that the District Court improperly increased his sentence by relying on a charge that was not included in his indictment. The Jones Court stated in dicta that due process and the Sixth Amendment requires that any fact that increases the maximum penalty for crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Id. at 1224 n. 6. With regard to drug crimes like that applicable here, the Fifth Circuit has not yet interpreted Jones as mandating a blanket departure from Fifth Circuit precedent which holds that drug quantity is a sentencing factor and not an element of a crime and therefore drug quantity need not be included in an indictment to be used to subject a defendant to enhanced sentencing options. See United States v. Rios-Quintero, 2000 WL 146319 (5th Cir. Feb. 10, 2000). And while Rios-Quintero can be read as questioning the continued viability of the pre-Jones Fifth Circuit precedents on the drug quantity issue, that issue is not presented by this case. This is so because Benford's sentence was not enhanced based on drug quantity, or anything else for that matter. Rather, here the District Court assessed Benford additional criminal points in determining where, within the un-enhanced statutory maximum, his sentence should fall because he was in possession of a firearm during the commission of his crime. See U.S.S.G. § 2D1.1(b)(1). Therefore the exception created in AEDPA for newly created constitutional rights simply does not apply here. Moreover, it is well-settled that Benford may not challenge the court's technical application of the sentencing guidelines in this § 2255 proceeding, as such a claim does not rise to the level of a constitutional issue cognizable under § 2255. United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994).
Although § 2255(1) does not specifically define when a judgment of conviction becomes "final," courts have held a defendant's conviction becomes final when the appeal becomes final or the time for notice of appeal has expired. See United States v. Bazemore, 929 F. Supp. 1567, 1569 (S.D.Ga. 1996) (finding that the language presented in another section of the AEDPA, specifically § 101(d)(1)(A) of the Act, would be instructive in that it states "that a judgment becomes `final by the conclusion of direct review or the expiration of the time for seeking such review'").
The Fifth Circuit has recognized a split in the circuit courts on when a criminal conviction becomes final where the defendant has not petitioned the United States Supreme Court for certiorari. United States v. Thomas, 2000 WL 130644, *4 (5th Cir. 2000). In dicta, the Thomas Court indicated its agreement with the Third Circuit opinion in Kapral v. United States, 166 F.3d 565 (3rd Cir. 1998) which held that when a defendant does not petition for writ of certiorari from the appellate court judgment, the judgment becomes final when the defendant's time for filing a timely petition expires). Id. at *5. A petition for writ of certiorari to the Supreme Court must be filed within ninety days from the entry of judgment of the appellate court. SUP. CT. R. 13.
Because the Fifth Circuit dismissed Benford's appeal on February 24, 1997, he was required to file a petition for writ of certiorari by May 24, 1997. He did not. Accordingly, allowing Benford the broadest interpretation, he was required to file a § 2255 motion by May 24, 1998. The present motion was not filed until October 1, 1999. Accordingly, this Court need not reach Benford's remaining claims and recommends the District Court dismiss Benford's cause of action as time-barred under the AEDPA
IV. RECOMMENDATION
The undersigned RECOMMENDS that the District Court DENY Movant's Motion to Vacate, Set Aside, or Correct Illegal Sentence under 28 U.S.C. § 2255 as it is untimely under the statute of limitations created under the AEDPA.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within ten (10) days after the party is served with a copy of the Report shall bar that party from de novo review by the district court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S.Ct. 466, 472-74 (1985); Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
The Clerk is ORDERED to mail each Party a copy of this Report and Recommendation by certified mail, return receipt requested.