Opinion
01 Civ. 7190 (GBD) (GWG), 92 Cr. 1138
April 7, 2004
REPORT AND RECOMMENDATION
Paul Gray was convicted on December 13, 1993 of conspiracy to export more than five kilograms of cocaine; exporting, and aiding and abetting the exportation of, over 500 grams of cocaine; and possessing with the intent to distribute more than 500 grams of cocaine and aiding and abetting the same. See Letter to the Hon. George B. Daniels from Robin A. Linsenmayer, dated October 4, 2001 ("Oct. 4 Letter"), at 1-2. He was sentenced on December 21, 1994 to 240 months in prison, followed by 10 years of supervised release, and a fine of $3000. Id. at 2. The United States Court of Appeals for the Second Circuit affirmed Gray's conviction and sentence on October 13, 1995 and the United States Supreme Court denied certiorari on February 20, 1996. United States v. Clarke, 71 F.3d 405 (2d Cir. Oct. 13, 1995) (unpublished table decision), cert,denied, 516 U.S. 1138 (1996). Gray, who is currently in prison serving his sentence, has petitioned this Court pro se under 28 U.S.C. § 2255 to vacate or modify his sentence. See Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed August 2, 2001 (Docket #1) ("Petition"). For the reasons below, the petition should be denied. BACKGROUND
Gray submitted the instant habeas petition to this Court's Pro Se Office on June 25, 2001. The petition raises only one ground for relief: that Gray's conviction violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because the judge rather than a jury determined the quantity of drugs involved in his crimes as part of the sentencing proceeding. Petition at 5. He argues that Apprendi created a new rule of law which retroactively applies to cases on collateral review. Memorandum of Law in Support of Motion Under § 2255 Sub Judice, dated June 20, 2001 (annexed to Petition), at 1-2. On this basis, Gray maintains that the petition is timely under 28 U.S.C. § 2255(3) because it was filed within one year of the Apprendi decision. Id. at 1.
The respondent submitted its opposition to Gray's petition on October 4, 2001. See Oct. 4 Letter. Gray replied on October 12, 2001. See Petitioner's Reply, dated October 12, 2001. On November 18, 2003, Judge Daniels issued an Order of Reference seeking a Report and Recommendation from the undersigned as to the disposition of Gray's petition. Because the original papers raised legal issues that had been the subject of development in the case law in the two years since briefing was completed, the undersigned issued an Order on November 20, 2003 permitting additional briefing by the parties. The respondent submitted a supplemental letter brief on December 1, 2003. See Letter to the Hon. Gabriel W. Gorenstein from Robin A. Linsenmayer, dated December 1, 2003. Gray submitted a supplemental reply on March 14, 2004. See Petitioner's Reply to Court Order of Nov. 20, 2003, Regarding the Legal Developments of Case Law, dated March 14, 2004 ("Pet. Supp. Reply"). DISCUSSION 28 U.S.C. § 2255 imposes a one-year limitations period which runs from the latest of, inter alia, "the date on which the judgment of conviction becomes final" or "the date on which 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." Gray maintains that his Apprendi claim should be considered timely as it is a "newly recognized right." Pet. Supp. Reply at 3. The Second Circuit, however, has squarely held that the law of Apprendi "does not apply retroactively to initial section 2255 motions for habeas relief." Coleman v. United States, 329 F.3d 77, 90 (2d Cir.), cert, denied, 124 S.Ct. 840 (2003). Thus, Apprendi claims raised on section 2255 motions that are filed after the expiration of the one-year statute of limitations must be dismissed as untimely. See,e.g., id.: Moreno-Castillo v. United States, 2003 WL 23109747, at *2 (S.D.N.Y. Dec. 31, 2003); Scaretta v. United States, 268 F. Supp.2d 207, 209-10 (E.D.N.Y. 2003). Gray's conviction became final on February 20, 1996. See Clay v. United States, 537 U.S. 522, 527 (2003) (a conviction becomes "final" under section 2255 "when [the Supreme] Court denies a petition for a writ of certiorari"). Because the instant petition was not submitted until June 25, 2001, Gray's motion to vacate or correct his sentence must be dismissed as untimely. Conclusion
In any event, Gray's Apprendi claim lacks merit. 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. Thus, "[t]he constitutional rule ofApprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction." United States v. Thomas, 274 F.3d 655, 664 (2d Cir. 2001) (en banc) (citingUnited States v. McLeod, 251 F.3d 78, 82 (2d Cir.) cert, denied. 534 U.S. 935 (2001)). In Gray's case, the finding regarding the quantity of drugs involved did not increase Gray's sentence beyond the statutory maximum. See 21 U.S.C. § 841(b)(1)(C), 960(b)(3) (statutory maximum sentence is 20 years).
Also meritless is Gray's argument that in fact he was sentenced to more than 20 years because he was also sentenced to a 10-year term of supervised release. See Pet. Supp. Reply at 4-5. As the Second Circuit has noted, "[i]t is well settled . . . that punishment for a violation of supervised release is separate from punishment for the underlying conviction and may, when combined with the latter, exceed the statutory maximum for the underlying offense." United States v. Wirth, 250 F.3d 165, 170 n. 3 (2d Cir. 2001) (per curiam) (citations omitted). Furthermore, the statutes under which Gray was convicted explicitly require a term of supervised release of "at least" three years. 21 U.S.C. § 841(b)(1)(C), 960(b)(3). "The rule in this circuit is that in view of the 'at least' language, no maximum term of supervised released is imposed by such a provision, and therefore that the statutory maximum term of supervision release is a life term." United States v. Gibbs, 58 F.3d 36, 37-38 (2d Cir. 1995). Because the statutory maximum for supervised release was not implicated in Gray's sentence, Apprendi is not applicable. See, e.g.,United States v. Dennis, 271 F.3d 71, 74 (2d Cir. 2001) (per curiam).
For the foregoing reasons, Gray's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. George B. Daniels, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).