Opinion
EP-05-CA-405-DB, EP-03-CR-465-DB.
November 23, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Juan Francisco Chavira-Cruz' ("Chavira") pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" ("Motion to Vacate") [Docket No. 62], filed in the above-captioned cause on November 1, 2005. After review, the Court finds that Chavira is clearly not entitled to relief regarding his claims. Accordingly, it concludes that his Motion to Vacate should be denied and this matter summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will additionally deny Chavira a Certificate of Appealability.
I. BACKGROUND
A. Criminal Cause No. EP-03-CR-465-DB
On March 5, 2003, the Grand Jury sitting in El Paso, Texas returned a two-count Indictment against Chavira and a co-defendant, charging them with conspiracy to possess 1000 kilograms or more of marijuana, a controlled substance, with the intent to distribute it, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(vii) (Count One); and possession of this same quantity of marijuana with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vii) (Count Two). Chavira decided to exercise his constitutional right to trial by jury and accordingly entered a plea of not-guilty to the Indictment on March 14, 2003. After a two-day trial, the jury found Chavira guilty as to both counts.
The Court deferred sentencing to allow for the preparation of a Presentence Report. It entered Judgment on September 15, 2003, sentencing Chavira to a 120-month term of imprisonment and a 5-year term of supervised release as to each count, to run concurrently. The Court additionally ordered Chavira to pay a total special assessment of $200.
Chavira timely appealed, arguing that the Court abused its discretion in admitting certain hearsay evidence. Among other things, Chavira objected to the admission of a Treasury Enforcement Communication System ("TECS") report showing that he and others involved in the offense crossed the border into the United States from Mexico at approximately the same time on the same date. The Fifth Circuit Court of Appeals rejected Chavira's argument and affirmed the Judgment on June 18, 2004, concluding that the TECS report was admissible as a public record, pursuant to Federal Rule of Evidence 803(8). The Supreme Court denied Chavira's petition for a writ of certiorari on November 1, 2004.
B. Chavira's Motion to Vacate Pursuant to 28 U.S.C. § 2255
The Court has read Chavira's claims liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands him to raise the following challenges to his conviction and sentence. First, Chavira asserts that the Court imposed his sentence in a manner that violated the holding of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005) ("Ground One"). Second, Chavira re-urges the argument that he presented on direct appeal ( i.e., that the TECS report was improperly admitted into evidence because it was hearsay and deprived him of his right to confront the witnesses against him) ("Ground Two").
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is also well settled that a collateral challenge may not take the place of a direct appeal. If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. III. BOOKER 'S NON-RETROACTIVITY
Withrow v. Williams, 507 U.S. 680 (1993).
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
Id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
As previously noted, in Ground One of his Motion to Vacate, the Court understands Chavira to allege that he is entitled to relief under Booker's holding. After due consideration, however, the Court concludes that Chavira is mistaken. Although the Fifth Circuit Court of Appeals has yet to determine whether Booker applies retroactively to convictions that were already final when the rule was announced, the other circuit courts of appeals to consider the matter have uniformly held that Booker announced a new procedural rule which does not apply retroactively to initial habeas petitions pursuant to 28 U.S.C. § 2255. For the reasons discussed below, this Court agrees with the reasoning set forth by the Second, Third, Fourth, Sixth, Seventh, Tenth, and Eleventh Circuit Courts of Appeals and accordingly determines that Chavira is clearly not entitled to relief under Booker's holding.
See United States v. Morris, No. 04-7889, 2005 U.S. App. LEXIS 23991, *20 (4th Cir. Nov. 7, 2005) (holding that Booker does not represent a new watershed rule of criminal procedure and that its rule is therefore not available for post-conviction relief for federal prisoners whose convictions became final before Blakely or Booker were decided); Lloyd v. United States, 407 F.3d 608, 614 (3rd Cir. 2005) (joining its sister circuit courts of appeals in holding that Booker does not apply retroactively to initial motions under 28 U.S.C. § 2255 where the judgment was final as of January 12, 2005); Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005) (holding that Booker is not retroactive and does not apply to judgments that were final before January 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (concluding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005.").
A. Booker's Holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of 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." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised 18 U.S.C. § 3553(b)(1), the provision of the federal sentencing statute making it mandatory for district courts to apply the Sentencing Guidelines. While a district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Retroactivity of New Rules Announced by the Supreme Court of the United States
See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see generally Apprendi v. New Jersey, 530 U.S. 466 (2000) (discussing the Sixth Amendment right to trial by jury and the reasonable doubt standard in criminal prosecutions).
Booker, ___ U.S. at ___, 125 S. Ct. at 748.
Id. at ___, 125 S. Ct. at 748.
Id. at ___, 125 S. Ct. at 757.
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final. New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Schriro v. Summerlin, 542 U.S. 348, ___, 124 S. Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow.
Id. at ___, 124 S. Ct. at 2523.
Id. at ___, 124 S. Ct. at 2523.
Id. at ___, 124 S. Ct. at 2523 (internal quotation omitted).
Id. at ___, 124 S. Ct. at 2523 (internal quotation omitted).
Id. at ___, 124 S. Ct. at 2523.
A district judge may determine whether a new decision of the Supreme Court applies retroactively and thus whether a collateral attack pursuant to 28 U.S.C. § 2255 is timely under 28 U.S.C. § 2255 ¶ 6(3). C. Booker Represents a New Procedural Rule That Is Not Retroactive to Cases on Collateral Review.
Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001); see also Wiegand v. United States, 380 F.3d 890, 892-93 (6th Cir. 2004) (stating that the district court should decide retroactivity in the first instance); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) ("Every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255 ¶ 6(3).").
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although
the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart. In sum, this Court, in keeping with every circuit court of appeals to decide the issue,
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, 542 U.S. at ___, 124 S. Ct. at 2523 (distinguishing substantive from procedural rules and discussing why a rule, prohibiting a sentencing judge from finding an aggravating factor that is necessary for the imposition of the death penalty, is properly classified as procedural in nature).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; see Guzman, 404 F.3d at 144 (citing Schriro for the proposition that Booker announced a new procedural rule that does not apply retroactively to already-final judgments); Price, 400 F.3d at 845 (concluding that, under the logic of Schriro, the rule announced in Booker is procedural and does not apply retroactively to already-final judgments); Humphress, 398 F.3d at 856 (comparing the rule announced in Booker to the rule analyzed in Schriro and concluding that the rule announced in Booker is procedural); Varela, 400 F.3d at 868 (concluding that the rule announced in Booker is procedural rather than substantive); McReynolds, 397 F.3d at 481 (holding that the rule announced in Booker is clearly procedural rather than substantive and therefore does not apply retroactively).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2526.
concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, petitioners whose judgments became final before January 12, 2005 may not claim relief pursuant to Booker. D. Discussion
See Lloyd, 407 F.3d at 614 (holding that Booker does not apply retroactively to motions pursuant to 28 U.S.C. § 2255 when the judgment under attack was already final when rule was announced); Guzman, 404 F. 3d at 144 (concluding that procedural rule announced in Booker does not operate retroactively to provide relief from judgments that were already final when Booker was released); Price, 400 F.3d at 845 (stating that Booker represents a new procedural rule that does not extend retroactively to relieve defendants from judgments that were final as of Booker's date of release); Humphress, 398 F.3d at 856 (holding that the rule announced in Booker is procedural and does not apply retroactively to judgments that were already final as of the date of Booker's release); Varela, 400 F.3d at 868 (concluding that the Booker holding represents a new procedural rule that does not function retroactively to provide relief from already-final judgments); McReynolds, 397 F.3d at 481 (holding that Booker announced a new procedural rule, which does not apply retroactively to judgments that became final before January 12, 2005, the date of Booker's release).
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
Here, Chavira's Judgment became final on November 1, 2004, the day on which the Supreme Court denied his petition for a writ of certiorari and more than two months before Booker's release. Because the rule announced in Booker does not apply retroactively, Chavira is therefore ineligible for relief under its holding. Moreover, even if Chavira's judgment had not already been final upon Booker's release, he would still not be entitled to relief on the merits of his argument. Chavira's mandatory minimum sentence of ten years was authorized by the jury's express finding, using a beyond-a-reasonable-doubt standard, that the offenses charged in Counts One and Two of the Indictment involved 1000 or more kilograms of marijuana. Booker's mandate was thus satisfied. Because Booker provides Chavira with no legal basis for relief, the Court concludes that it should dismiss Ground One of his Motion to Vacate with prejudice.
See Linkletter v. Walker, 381 U.S. 618, 622 n. 5 (1965) (stating that a conviction is final when the availability of direct appeal is exhausted and the time for filing a petition for a writ of certiorari has elapsed or the Supreme Court has denied certiorari review), overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314 (1987), as stated in Harper v. Va. Dep't of Taxation, 509 U.S. 86, 95 (1993).
Jury Verdict, Docket No. 43.
IV. PRIOR ADJUDICATION OF GROUND TWO
Turning to Ground Two of Chavira's Motion to Vacate, the Court finds that the Fifth Circuit Court of Appeals previously adjudicated this challenge. Nothing in Chavira's present Motion to Vacate persuades the Court that it should revisit that disposition. Ground Two is accordingly dismissed with prejudice.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a CPC to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041.
See Miller-El v. Cockrell, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West 2004).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher, 301 F.3d at 658 n. 10; Lackey, 116 F.3d at 151; Hill, 114 F.3d at 80; Muniz, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua (1998) (same). sponte.
28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 327.
Miller-El, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2003) (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Chavira's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Juan Francisco Chavira-Cruz' Motion to Vacate pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Juan Francisco Chavira-Cruz' pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody," filed in the above-captioned cause on November 1, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Juan Francisco Chavira-Cruz is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.