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involving challenge to sentence as a career offender
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CASE NO. 2:97-CV-556, CRIM. NO. 2:91-CR-00128(19).
April 15, 2009
OPINION AND ORDER
This matter is before the Court pursuant to a remand from the United States Court of Appeals for the Sixth Circuit for consideration of petitioner's November 1, 2006, motion for relief from final judgment pursuant to Federal Rule of Civil Procedure 60(b) solely as it relates to petitioner's request for reconsideration of this Court's dismissal, as procedurally defaulted, of his § 2255 claim that he was improperly classified as a career offender in view of United States v. Montanez, 442 F.3d 485 (6th Cir. 2006). Doc. No. 120. For the reasons that follow, petitioner's Rule 60(b) motion, Doc. No. 70 (Case No. 2:97-CV-556), see Order, Doc. No. 98, is DENIED.
In Montanez, supra, a three judge panel characterized the unreported three judge panel decision in Gibbs. v. United States, 3 Fed.Appx. 404, 2001 WL 133120 (6th Cir. February 5, 2001), affirming this Court's denial of Gibbs' 2255 petition as wrongly decided in regard to Gibbs' classification as a career offender based on his prior state court conviction.
Federal Rule of Civil Procedure 60(b), provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On a motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Petitioner contends that relief from the judgment entered in this action is warranted. He specifically argues that the procedural default of this claim should be excused, in light of Montanez, because the claim was not available to him prior to Montanez and because Montanez suggests that he is actually innocent of a career offender status. Because, petitioner contends, he would have been released from confinement more than six years ago but for his career offender status, see Memorandum in Support, Doc. No. 125, at 3, he argues that a fundamental miscarriage of justice will result should his motion for relief from judgment not be granted. Respondent opposes petitioner's request and again argues that petitioner's motion constitutes a successive petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).
The early history of this case was discussed by this Court, see Order, December 19, 2006, Doc. No. 98, and was summarized by the United States Court of Appeals for the Sixth Circuit as follows:
In 1992, Gibbs was tried before a jury and convicted of conspiracy to possess cocaine and heroin with the intent to distribute. United States v. Hood, Nos. 92-3657, 1994 WL 4723, at *1 (6th Cir. Jan. 6, 1994) (unpublished). The court sentenced Gibbs to a total of 360 months of imprisonment. A panel of this court affirmed Gibbs's conviction and sentence. Id. at **1, 12. In May 1997, Gibbs filed a § 2255 motion, claiming, inter alia, that counsel was ineffective in failing to investigate and object to the use of his prior offenses to classify him as a career offender. The district court denied § 2255 relief, but granted Gibbs a certificate of appealability on the issue whether Gibbs "was denied the effective assistance of counsel in violation of his Sixth Amendment rights for failing to object to the use of petitioner's prior state court convictions and the determination of petitioner's career-offender status."Gibbs v. United States, 3 Fed.Appx. 404, 2001 WL 133120 (6th Cir. February 5, 2001). On February 5, 2001, the Sixth Circuit affirmed this Court's dismissal of petitioner's § 2255 petition. Id. On October 1, 2006, the United States Supreme Court denied petitioner's petition for a writ of certiorari. Gibbs v. United States, 534 U.S. 929 (2001).
On November 1, 2006, petitioner filed the instant motion for relief from judgment pursuant to Rule 60(b). On July 17, 2007, this Court transferred that motion to the United States Court of Appeals for the Sixth Circuit as a successive petition. Doc. No. 112. On July 28, 2008, that Court remanded the case for resolution of petitioner's challenge to this Court's procedural ruling regarding the default of his claim that he was improperly classified as a career offender. In doing so, however, the Court of Appeals expressly held that "the alleged ineffective assistance of counsel cannot establish cause for Gibbs' procedural default." Order, ¶ 4, Doc. No. 120.
In view of the Sixth Circuit's directive, this Court rejects the respondent's renewed contention, see Memorandum Contra Rule 60(b) Motion, Doc. No. 131, that petitioner's Rule 60(b) motion should be construed as a successive petition.
PRIOR UNAVAILABILITY OF CLAIM
Petitioner contends that relief from judgment is warranted because his claim — i.e., that he was improperly classified as a career offender — was so novel as to be unavailable at the time that he filed his appeal. See Memorandum in Support, Doc. No. 125; Reply Memorandum, Doc. No. 132. According to petitioner, the Sixth Circuit's recent remand of this case and its earlier affirmance of this Court's denial of his § 2255 petition support this argument. See Reply Memorandum, at 3-5. This Court is not persuaded by petitioner's argument.
The United States Supreme Court has recognized that a "claim that `is so novel that its legal basis was not reasonably available . . .' may constitute cause for a procedural default." Bousley v. United States, 523 U.S. 614, 622-23 (1998), citing Reed v. Ross, 468 U.S. 1, 16 (1984).
[T]he cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client's interests. . . . [T]he failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met. If counsel has no reasonable basis upon which to formulate a constitutional question . . . it is safe to assume that he is sufficiently unaware of the question's latent existence that we cannot attribute to him strategic motives of any sort.
. . . .
"If novelty were never cause, counsel on appeal would be obliged to raise and argue every conceivable constitutional claim, no matter how far fetched, in order to preserve a right for post-conviction relief upon some future, unforeseen development in the law. Appellate courts are already overburdened with meritless and frivolous cases and contentions, and an effective appellate lawyer does not dilute meritorious claims with frivolous ones. Lawyers representing appellants should be encouraged to limit their contentions on appeal at least to those which may be legitimately regarded as debatable."Reed v. Ross, 468 U.S. at 14-16 (footnote omitted), quoting Ross v. Reed, 704 F.2d 705, 708 (4th Cir. 1983). Although the Supreme Court in Reed addressed only the prior unavailability of a claim based on the retroactive application of a previously unrecognized constitutional principle, it noted that "the question whether an attorney has a `reasonable basis' upon which to develop a legal theory may arise in a variety of contexts[.]" Reed v. Ross, 468 U.S. at 17.
In Bousley v. United States, 523 U.S. 614, the United States Supreme Court affirmed a conclusion of default and rejected petitioner's argument that his procedural default should be excused because his claim ( i.e., that his guilty plea was not knowing, intelligent and voluntary because he had been misadvised as to the elements of an offense under 18 U.S.C. § 924(c)), was novel prior to Bailey v. United States, 516 U.S. 137, 143 (1995) (holding that a conviction under § 924(c) requires "active employment" of the firearm by the defendant):
The argument that it was error for the District Court to misinform petitioner as to the statutory elements of § 924(c)(1) was most surely not a novel one . . . Indeed, at the time of petitioner's plea, the Federal Reporters were replete with cases involving challenges to the notion that "use" is synonymous with mere "possession." . . . Petitioner also contends that his default should be excused because, "before Bailey, any attempt to attack [his] guilty plea would have been futile." . . . This argument, too, is unavailing. As we clearly stated in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), "futility cannot constitute cause if it means simply that a claim was `unacceptable to that particular court at that particular time.'" Id., at 130, n. 35, 102 S.Ct., at 1573, n. 35. Therefore, petitioner is unable to establish cause for his default.Bousley v. United States, 523 U.S. at 622-23 (citations and footnote omitted). Similarly, the Court in United States v. Moss, 252 F.3d 993 (8th Cir. 2001), found no cause for the procedural default of a claim that the District Court had impermissibly enhanced a sentence by determining the quantity of drugs in violation of the later decision in Apprendi v. New Jersey, 530 U.S. 466 (2000):
Moss contends that cause exists to excuse his default because an Apprendi claim falls within the category of those "novel" claims which justifiably may be raised for the first time in a collateral proceeding. . . . We recognize the Apprendi decision caused an about-face in our understanding of what constitutes an element of an offense, but the argument that drug quantity is an offense element under § 841(b), not a sentencing factor, was certainly available to Moss's counsel at the time of Moss's direct appeal. Our conclusion is consistent with other circuits which have spoken on the issue. See Sanders, 247 F.3d at 145-46; United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001); Garrott v. United States, 238 F.3d 903, 905-06 (7th Cir. 2001).
As far back as 1987, our circuit addressed the exact argument Moss now raises as a basis for relief . . .
A barrage of similar arguments raged throughout the circuits in the late 1980s and early 1990s. . . . The circuits, however, unanimously rejected the notion that drug quantity is an element of the offense. . . . [However,] the fact that it was raised extensively in the past, and explicitly addressed by this court previously, precludes a conclusion that the argument was "novel" and therefore unavailable because it was intellectually unascertainable.
Procedural default also cannot be overcome because the issue was settled in the lower courts. The Supreme Court has rejected the argument that default can be excused when existing lower court precedent would have rendered a claim unsuccessful. Bousley, 523 U.S. at 623. . . .
***
[O]ur conclusion that an Apprendi-type argument was reasonably available does not hold defense counsel to an unattainable or impractical standard of legal competence and sophistication. As we noted, defense counsel often challenged judge-found drug quantity determinations, and several commentators, and courts, had adequately set forth the legal basis supporting the proposition that drug quantity is an element of the offense. . . . Because the Apprendi claim Moss now seeks to raise was reasonably available to his counsel, he cannot show cause for his failure to raise the issue as part of his direct appeal and is procedurally barred from raising it now.Id. (citations omitted).
Such are the circumstances here. This Court is not persuaded that either the decision in United States v. Gibbs, supra, 2001 WL 133120, or the remand of petitioner's Rule 60(b) motion, require a contrary conclusion. In concluding that petitioner's ineffective assistance of counsel claim lacked merit, the Sixth Circuit in United States v. Gibbs, supra, 2001 WL 133120, discussed other cases resolving similar arguments concerning application of state court convictions to enhance a defendant's sentence. Further, the fact that petitioner's claim may not have met with success does not mean that his claim was so unavailable as to excuse his procedural default. See Bousley, 523 U.S. at 622-23.
ACTUAL INNOCENCE and FUNDAMENTAL MISCARRIAGE OF JUSTICE
Petitioner also contends that his actual innocence of the designation as career offender should serve to excuse his procedural default of his claim that he was improperly classified as a career offender. He argues that this Court should address the merits of this claim so as to prevent a fundamental miscarriage of justice. In making this argument, petitioner relies on United States v. Montanez, supra, 442 F.3d at 485:
The question before us is whether . . . two drug-related convictions under former Ohio Revised Code § 2925.03(A)(6) and (9) constitute predicate offenses for career offender status. Citing this Court's unpublished disposition in Gibbs v. United States, 3 Fed.Appx. 404 (2001), the district court determined that both of Montanez's state court convictions qualified as predicate controlled substance offenses. . . .
. . . [S]ection 4B1.1 of the Guidelines states:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
The term "controlled substance offense" is defined by the Guidelines as:
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b). Thus, under the Guidelines, simple possession — that is, possession without the proof beyond a reasonable doubt of the requisite intent to "manufacture, import, export, distribute, or dispense" — is not a controlled substance offense. See United States v. Hernandez, 218 F.3d 272, 278 (3d Cir. 2000); United States v. Neal, 27 F.3d 90, 92 (4th Cir. 1994); United States v. Casarez-Bravo, 181 F.3d 1074, 1077-78 (9th Cir. 1999); United States v. Kissick, 69 F.3d 1048, 1053-54 (10th Cir. 1995) (collecting cases); United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992).
Former Ohio Revised Code § 2925.03, titled "Drug Trafficking Offenses," provided . . . that:
(A) no person shall knowingly do any of the following:
(6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount;
(9) Possess a controlled substance in an amount equal to or exceeding one hundred times the bulk amount;
. . . Montanez argues that because his offenses involve only the knowing possession of drugs, and do not have, as an element of the crime, proof of "intent to manufacture, import, export, distribute, or dispense," U.S.S.G. § 4B1.1, then his convictions cannot qualify as controlled substance offenses under the Guidelines.
***
. . . [T]here are conflicting unpublished dispositions on this issue in our Circuit, as well as one case from the Ninth Circuit. . . .
In Gibbs, upon which the Government relies, this Court addressed whether a conviction under former Ohio Revised Code § 2925.03(A)(4) FN2 was properly classified as a controlled substance offense under Guideline section 4B1.1. Based on the language of section (A)(4), the defendant argued that he was convicted only of "simple possession" and that his conviction could not therefore qualify as a controlled substance offense under the Guidelines. In rejecting the defendant's argument, this Court noted that simple possession constitutes a violation of Ohio Revised Code § 2925.11, which is titled "Drug Possession Offenses." Gibbs, 3 Fed.Appx. at 406. The defendant in Gibbs, like Montanez here, was convicted, not under section 2925.11, but rather under section 2925.03, which is titled "Drug Trafficking Offenses." Id. This Court also noted that the Ohio courts have concluded that section 2925.03 "relates to illicit drug trafficking, while § 2925.11 is aimed at users and not at sellers." Id. (citing State v. Goodnight, 52 Ohio App.2d 333, 370 N.E.2d 486, 488 (1977)). Finally, this Court noted that a defendant charged under section 2925.03 has a valid affirmative defense of "personal use," and if proven, the defendant cannot be convicted under section 2925.03. Id. FN3
FN2. Section (A)(4) criminalizes the knowing "[p]ossess[ion] [of] a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount."
FN3. The Gibbs panel did not explain the significance of the "personal use" defense. We can only speculate that the Gibbs panel believed that the presence of the personal use defense indicated sub silentio that there existed an intent to distribute requirement in the statute.
***
After reviewing Gibbs, [United States v.] Wright, [ 43 Fed.Appx. 848 (6th Cir. August 7, 2002)]and [United States v.] Coteat, [ 133 Fed.Appx. 177 (6th Cir. May 11, 2005)], we believe that Gibbs and Coteat were wrongly decided, and we find ourselves in agreement with the Ninth Circuit's unpublished disposition in [United States v.] Foster [, 28 F.3d 109, unpublished, 1994 WL 201201 (9th Cir. May 23, 1994)] and our disposition in Wright. . . .
. . . It is abundantly clear from the plain language of the statutes of conviction that each contains only the element of "possession" and does not contain the element of "intent to distribute." . . .
In Gibbs, we focused on the title of Ohio's statutory section, "Drug Trafficking Offenses," as well as the fact that Ohio criminalized so-called "simple possession" in another section of its statutory scheme. Gibbs, 3 Fed.Appx. at 406. We likewise found it persuasive that Ohio courts had determined that the section was aimed at sellers and not users. Id. How a state titles its statutory provisions, however, is not determinative of what actual statute a defendant was convicted under for federal sentencing purposes. Moreover, none of our past dispositions accounted for the fact that the Ohio legislature has specifically stated that: "Title, Chapter, and section headings and marginal General Code section numbers do not constitute any part of the law as contained in the `Revised Code.'" Ohio Rev. Code § 1.01. See also Warner v. Zent, 997 F.2d 116, 133 (6th Cir. 1993) ("Such headings, however, do not constitute any part of Ohio law. Resort to a title in construing a statute is unnecessary and improper."). The fact that the statutory section at issue is titled "Drug Trafficking Offenses" is simply irrelevant and the Gibbs panel erred by concluding otherwise. The determinative issue, however, is the elements that make up the prior state crime of conviction. Shepard [v. United States, 544 U.S. 13, 19] (noting that "the categorical approach . . . refers to predicate offenses in terms not of prior conduct but of prior `convictions' and the `element[s]' of crimes"). For federal sentencing purposes, a sentencing court looks to the elements of the prior offense to determine whether it qualifies under the Guidelines. See generally id.; [ United States v.] Martin, 378 F.3d [578, 581 (6th Cir. 2004)] (looking to statutory definition of the crime); United States v. Bass, 315 F.3d 561, 565 (6th Cir. 2002) ("[W]hen it is not clear from the elements of the offense alone whether the crime [qualifies for enhancement under the Guidelines], the sentencing court may review the indictment for the specific conduct charged.") (emphasis added); United States v. Champion, 248 F.3d 502, 505 (6th Cir. 2001) (applying categorical approach in determining whether an offense has as an element "the use, attempted use, or threatened use of physical force").
Additionally, the fact that Ohio punishes other drug possession, without the bulk quantity requirement, in another section of its statutory scheme does not change the elements of the underlying offenses. . . . Conversely, if one or more subsections of Ohio Revised Code 2925.11 contained an element of possession with intent, the Government surely would not argue that the defendant's sentence could not be enhanced because the definition of the statutory section, "Drug Possession Offenses," controlled the inquiry. Furthermore, as discussed above, any reliance on statutory titles in this case is simply unavailing. See Ohio Rev. Code § 1.01. It is the elements of the crimes that matter.
Gibbs also found it relevant that the Ohio legislature aimed section 2925.03 at sellers, not users, . . . but we do not conduct an inquiry into whom, as a class, the legislature wished to target, but rather those whose conduct falls within the elements of the criminalized offense. [FN5]
FN5. We note that the legislature arguably hit its target with sections (A)(1), (2), (3), (5), (7), (8), and (10). With regard to sections (A)(4), (6), and (9), however, the legislature criminalized only possession in a bulk amount. Ohio Rev. Code § 2925.03.Id., at 488-491 (footnote and some citations omitted).
Petitioner contends that extraordinary circumstances justify reopening the final judgment dismissing his federal habeas corpus petition because, under Montanez, he was improperly sentenced to an extraordinarily long sentence as a career offender. Motion for Relief From Judgment, at 2-3.
The United States Supreme Court has declined to address whether a defendant's actual innocence will serve to excuse an otherwise procedurally defaulted claim regarding a non-capital sentencing error. See Dretke v. Haley, 541 U.S. 386, 393-94 (2004). However,
in the procedural default context, the Sixth Circuit has held that an actual innocence exception is not available in the case of a challenge to a noncapital sentence. Flahardy v. United States, 67 F.3d 299; 1995 WL 570925, *2 (6th Cir. September 27, 1995); Black v. United States, 61 F.3d 903, 1995 WL 445718, *2 (6th Cir. July 26, 1995). The Eighth and the Tenth Circuits have also held that there is no actual innocence exception for noncapital sentencing errors. See Embrey v. Hershberger, 131 F.3d 739, 740-741 (8th Cir. 1997) (in noncapital cases, the concept of "actual innocence," which permits court to reach the merits of a claim in a petition for post-conviction relief even though petition is successive, means that the person did not commit the crime); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) ("a person cannot be actually innocent of a noncapital sentence"). At least one federal district court has also concluded that the actual innocence exception does not apply to noncapital sentencing proceedings. See United States ex rel. Henderson v. Thieret, 671 F.Supp. 1193, 1201 (N.D.Ill. 1987). The Fourth and Fifth Circuits have held that the actual innocence exception applies to noncapital cases only in the context of an habitual offender provision for sentence enhancement purposes. United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999); Haley v. Cockrell, 306 F.3d 257, 265 (5th Cir. 2002).Davis v. Stegall, 2003 WL 1867920 (E.D. Michigan March 17, 2003); but see Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162 (2nd Cir. 2000) ("Because the harshness of the sentence does not affect the habeas analysis and the ultimate issue, the justice of the incarceration, is the same, there is no reason why the actual innocence exception should not apply to noncapital sentencing procedures.")
This Court is not aware of, and the parties have not referred to, any published decision of the United States Court of Appeals for the Sixth Circuit addressing whether a defendant's actual innocence of a non-capital sentencing error may excuse his procedural default of the underlying claim. Under these circumstances, this Court declines to conclude that petitioner is actually innocent of his designation as a career offender such that his procedural default of that claim should be excused and relief from the prior judgment should be granted. In this respect, the Court notes that the United States Court of Appeals for the Sixth Circuit has concluded that Gibbs' prior convictions qualified him as a career offender under the United States Sentencing Guidelines, although that conclusion was made in the context of petitioner's claim of ineffective assistance of counsel. Gibbs v. United States, supra, 2001 WL 133120. On October 1, 2006, the United States Supreme Court denied petitioner's petition for a writ of certiorari. Gibbs v. United States, 534 U.S. 929 (2001). Further, while not relevant to consideration of whether petitioner's prior convictions may be used to classify him as a career offender under the United States Sentencing Guidelines, see Gibbs, supra, petitioner's PreSentence Investigation Report indicates that both of the prior convictions used to classify him as a career offender involved the sale, and not mere possession, of drugs. See PreSentence Investigation Report, ¶¶ 132, 137, 138, 146. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency," Bousley v. United States, supra, 523 U.S. at 623-24, citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992). "[T]he Government is not limited to the existing record to rebut any showing" of actual innocence by the petitioner. Id. "Rather . . . the Government should be permitted to present any admissible evidence of petitioner's guilt . . ." Id.
For all of the foregoing reasons, petitioner's Rule 60(b) motion is DENIED.