Opinion
00 Civ. 6671 (DLC), 99 Cr. 867 (DLC)
March 15, 2001
MEMORANDUM OPINION AND ORDER
On August 23, 2000, Taiwan Coleman ("Coleman") signed a petition pursuant to 28 U.S.C. § 2255 attacking his conviction earlier that same year for violation of the federal drug laws. Coleman relies on the Supreme Court's decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), to argue that the statutes under which he was convicted, 21 U.S.C. § 841 and 846, are no longer valid; that this Court lacked jurisdiction to sentence him; that the indictment did not contain all the essential elements of the crime; and that the Grand Jury presentation did not address all of the essential elements. On September 25, 2000, Coleman filed a motion to amend his petition to add the argument that Section 841 improperly shifts the burden to the defendant to disprove the nature and quantity of the controlled substance. In his November 21, December 1, and February 26 submissions, Coleman presents further arguments pursuant toApprendi.
The indictment at issue here, 99 Cr. 876, charged Coleman and others with conspiracy to distribute and possess with intent to distribute 1 kilogram and more of heroin. On February 10, 2000, Coleman pleaded guilty pursuant to a plea agreement that included a guidelines stipulation based on a quantity of heroin between 1 kilogram and 3 kilograms. At the allocution, the Court advised Coleman that he was charged with agreeing with others to distribute one kilogram or more of heroin, and that that crime carried a mandatory minimum term of imprisonment of ten years. In colloquy concerning the plea agreement between the Government and Coleman during the allocution, Coleman admitted that he had stipulated to a sentencing guidelines range, when combined with the mandatory minimum term of imprisonment, of 120 to 121 months, and that he had agreed to give up his right to appeal his sentence if the sentence imposed was 121 months or less. Coleman allocuted that he had conspired with others to distribute between one and three kilograms of heroin. On June 1, 2000, Coleman was sentenced principally to a term of imprisonment of 120 months. He did not appeal his conviction.
For several reasons, including those that follow, Coleman's petition and its amendments must be dismissed. First, in his plea agreement, Coleman waived the right to challenge his sentence so long as the Court imposed a sentence at or below 121 months. See, e.g., United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995). Second, Coleman did not raise this issue in an appeal from his sentence, and has not shown either cause or actual prejudice for failing to do so. See, e.g., DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998). Third, Apprendi does not assist Coleman. Coleman's indictment gave him specific notice of the quantity and nature of the drug at issue, and thus of the sentencing parameters. His allocution included a confession regarding the identity of the drugs and the relevant quantity. The sentence imposed on him, therefore, was based on an adequate factual basis and followed sufficient notice to him. Finally, nothing in Apprendi renders either Section 841 or Section 846 of Title 21, United States Code, unconstitutional.
For all of these reasons, Coleman's petition is denied. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). Should the petitioner seek to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED