Opinion
01 -CV-4044 (ILG).
March 21, 2002
Gary Moulton a/kla Michael Walker (pro se), Federal Register No. 28737-053, F.C.I. Otisville, Otisville, New York.
AUSA Emily Berger, Eastern District of New York, Brooklyn, New York.
MEMORANDUM AND ORDER
Petitioner Gary Moulton, a/k/a Michael Walker ("Moulton" or "petitioner"), proceeding pro se, has filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate his judgment of conviction and sentence. On May 22, 1990, Moulton was convicted after a jury trial of one count of possession with intent to distribute more than five grams of cocaine base, in viqiation of2l U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On September 20, 1990, Moultdn was sentenced as a career offender to 262 months' imprisonment to be followed by five years of supervised release. Moulton timely appealed the judgment of conviction and sentence, which was affirmed by the Court of Appeals on June 21, 1991.
Because Moulton was convicted of possession with intent to distribute more than 5 grams of a cocaine base, pursuant to 21 U.S.C. § 841(b)(1)(B)(iii), the sentence imposed could not be less than 5 years and not more than 40 years. Moulton's sentence of 262 months fell within this statutory range.
In filing his Section 2255 motion, dated June 6, 2001, petitioner seeks to vacate his sentence based on Apprendi v. New Jersey, which held "[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. 466, 490 (2000). Petiti6ZhkA3Z6Suns thaTf"(iyhe received an enhanced sentence for distributing crack cocaine when the indictment charged only cocaine base, and cocaine base awl not crack was proved to the jury beyond a reasonable doubt. (2) '87 of the Sentencing Guidelines, defining cocaine base for Guidelines's purposes. should be applied retroactively to reduce his sentence; (3) the jury was never advised that a conviction for "crack" carried with it additional penalties at sentencing; and (4) his prior convictions, which were used to enhance his sentence, were never charged in the indictment or proved to a jury beyond a reasonable doubt.
Before responding to the motion, the Court ordered petitioner tshow cause why the motion should not be dismissed as time-barred because it was not fled within one year after the enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") 28 U.S.C. § 2255. By way of affirmation, Moulton argued that the motion was timely under Section 2255(3), which provides that the one year time limitation shall run from "fir date on which the right asserted was initially recognized by the Supreme Court. if that right has been newly recoQznizrd by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(3). Moulton argues that his motion was timely filed within one year after the Supreme Court announced a new rule inApprendi.
DISCUSSION
I. The AEDPA's One Year Time Limitation
A Section 2255 motion, filed within one year after the Supreme Coun holds that a new rule of constitutional law may be applied retroactively to cases on collateral review, will be considered timely filed under the AEDPA. See 28 U.S.C. § 2255(3). However, the Supreme Court has thus far not held that Apprendi is applicable retroactively to cases on collateral review. In Forbes v. United States, 262 F.3d 143, 146 (2d Cir. 2001), the Second Circuit considered a similar question. In the context of deciding whether to grant an application to file a second or successive Section 2255 motion, the Court concluded that the application must be denied as the Supreme Court had not yet pronounced whetherApprendi could be applied retroactively to cases on collateral review. The Court noted, however, that its decision was made in the context of a second or successive application, and it "made no intimation as to the retroactive effect of Apprendi on first petitions under Section 2255 . . . ." Id. at n. 5. Indeed, the Second Circuit has not yet squarely addressed the question whether Apprendi satisfies Section 2255(3) for purposes of the AEDPA's one year time limitation. Rather than engage in what will undoubtedly be an onerous task to ascertain whether Apprendi satisfies the requirements of retroactivity in collateral review cases, an endeavor which neither the Supreme Court nor the Second Circuit has yet undertaken. Moulton's motion must be dismissed, in any event, because his claims based on Apprendi are without merit. See Santana-Madera v. United States, 260 F.3d 133, 141 (2d Cir. 2001) (declining to "blaze new trails" where the Supreme Court has "thus far feared to tread' because precedent conclusively demonstrated that there was no Apprendi error).
II. Petitioner's Apprendi Claims Are Meritless
A. There was no Apprendi Error for Sentence Enhancement Based on Finding of Crack
Even if the Supreme Court announced Apprendi as a new rule of law made retroactive to cases on collateral review, petitioner's Section 2255 claims are devoid of merit. Apprendi holds that any fact, except for prior crimes, that increases a sentence beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Petitioner argues that his constitutional rights were violated when he received a sentence enhancement based Zhhe Court's finding, as opposed to one made by the jury, that the substance involved in the crime was crack cocaine. Apprendi is simply not implicated in petitioner's case. At the time of petitioner's sentencing, this Circuit's precedent did not distinguish between crack cocaine and cocaine base for purposes of sentencing under the Guidelines. As stated in United States v. Palacio, "[t]hough the purpose of the higher penalty [for cocaine base] is to deter traffic in crack, a common form of cocaine base, this Circuit has ruled that the higher penalties for cocaine base apply to any substance within the chemical definition of cocaine base, whether or not it is crack." 4 F.3d 150, 151 (2d Cir. 1993) (citing United States v. Jackson, 968 F.2d 158, 161-63 (2d Cir. 1992)). Thus, a person convicted of a crime involving cocaine base, regardless of whether the substance was "crack" or some other form of cocaine base, could properly be sentenced under the higher penalties. Here, the fact that petitioner's indictment charged him with cocaine base distribution that the jury was charged with deciding whether the evidence was sufficient to prove beyond a reasonable doubt that petitioner distributed cocaine base, and that he was convicted of cocaine base distribution, as opposed to crack distribution, had no impact on the ultimate sentence imposed by this Court. Accordingly, petitioner's sentence based on crack distribution does not violate Apprendi.
The Court charged the jury, in pertinent part:
The law with which he's charged or of which he's charged with violating reads as follows:
It says: It shall be unlawfhl for any person knowingly or intentionally to possess with intent to distribute a controlled substance.
And cocaine base is a controlled substance.
. . . Normally the government would have to prove that the defendant possessed cocaine base, that he knew that he possessed cocaine base, and that he possessed it with the intent to distribute it.
Now, the defendant does not dispute the fact that what he possessed was cocaine base, he does not dispute the fact that he possessed it. He does dispute the fact that he possessed it with the intent to distribute it.
(See Trial Tr. at 155-56) (emphasis added).
B. Amendment 487 Does Not Require a Reduction in Sentence
Petitioner also argues that an amendment to Section 2D1.1(c) of the Sentencing Guidelines, which became effective on November 1, 1993, after the entry ofjudgmentin petitioner's case. should be applied retroactively to reduce his sentence. Amendment 487 resolved a split in the circuits over the meaning of "cocaine base" for purposes of the Guidelines, and stated that "cocaine base" means "crack" and that "forms of cocaine base other than crack [examples omitted] will be treated as cocaine." U.S.S.G. Manual, App. C, Vol. 1, amendment 487. In 1986, Congress passed the Anti-Drug Abuse Act which resulted in substantially higher penalties for crack cocaine distribution than cocaine distribution under Section 841(b) and U.S.S.G. § 2D1.1(c). Pub.L. No. 99-570, 100 Stat. 3207:Jackson, 968 F.2d at 160. Thus, had petitioner been sentenced after the effective date of the amendment, he may have received a lower sentence if the substance involved in the crime was a form of cocaine base other than crack. The Court need not be concerned with petitioner's claim for two reasons.
First, petitioner's claim is untimely. Petitioner waited newly eight years after the enactment of the amendment, and almost five years after the effective date of the AEDPA to raise his claim. As the argument was available to petitioner several years ago, he cannot show cause for failing to raise it prior to April 24, 1996, the effective date of the AEDPA, or within one year of that date. See Mickens v. United States 148 F.3d 145 , 148 (2d Cir. 1998) (convictions that become final prior to the effective date of the AEDPA have a one year grace period from that date to flue a Section 2255 motion).
Second, even If the claim was timely raised, amendment 487 is not appiied retroactively to sentences imposed prior to November 1, 1993, and, in any event, the evidence at trial was sufficient to prove that the substance involved in the crime was crack cocaine. Amendment 487 would not have applied to petitioner's sentence. because it is not listed in Section 1B1.l0(c) of the Guidelines, which enumerates those amendments which may be applied retroactively. U.S.S.G. § 1B1.10(c); United States v. Reyes, Nos. 90-CR-584, 96-C V-7691, 96-C V-.2705, 1997 WL 217593, at *2 (S.D.N.Y. May 1, 1997) (amendment 487 did not entitle defendant it reduction in sentence because amendment did not apply retroactively as it was not listed in Section 1B1.10(c)). However, even if the amendment was somehow retroactive, the evidence at trial was sufficient to prove that the crime involved crack cocaine. Petitioner virtually conceded this fact when he did not object to the chemists's testimony that the substance in the 61 vials was cocaine base with an approximate purity of 89 percent, which in layman's terms most people refer to as crack. (See Trial Tr. at 73.) In addition, throughout the trial, the drug at issue was often referred to as crack with no objection made by petitioner to this description. Instead, petitioner's entire defense relied upon the distinction between personal use and distribution. For these reasons, petitioner's claim must be rejected.
C. Petitioner's Jury CharQe Claim icYrecedurallv Barred
Petitioner next argues that his constitutional rights were violated because the Court did instruct the jury that a conviction for crack received enhanced penalties at sentencing. This claim is procedurally barred because petitioner never raised it on direct appeal and he cannot show cause and prejudice for the default or that he was actually innocent of the crime. See United States v. Rosario, 164 F.3d 729, 732 (2d Cir. 1998) (petitioner is barred from raising claims for the first time on collateral review unless he can show "cause" for failing to do so and "prejudice" resulting therefrom, or his actual innocence). Petitioner's claims on direct appeal included: insufficiency of the evidence to sustain the conviction; improper admittance of expert testimony that the amount of crack was consistent with distribution; and challenges to his sentence based on the quantity and weight of drugs that were found by the judge as opposed to the jury. In an eleventh hour attempt to save his claim, petitioner argues that court appointed counscel must have been ineffective for failing to raise his claims on direct appeal; (See Reply Br. at 6-9.) Although a proper ineffective assistance of counsel claim may constitute cause in rare circumstances, see Murray v. Carrier, 477 U.S. 478, 488 (1986), that claim of ineffectiveness must itself be exhausted to constitute cause, see Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). Moreover, there is not a scintilla of evidence to suggest that appellate counsel was ineffective in this case. See Murray, 477 U.S. at 488 (petitioner must show that errors of counsel were "so egregious" that they constitute ineffective assistance of counsel). Accordingly, petitioner's jury charge claim must be rejected.
Although on direct appeal petitioner challenged this Court's finding based on a preponderance of the evidence that the specific quantity of crack involved in the crime was over grams, he does not challenge drug quantity in this Section 2255 motion. Accordingly, that claim is not now before this Court.
D. There was no Apnrendi Error for Sentence Enhancement Based on Prior Crimes
Petitioner's claim that his sentence enhancement for being a career criminal based on multiple prior crimes somehow violated Apprendi is simply untenable as a matter of law. The Court in Apprendi explicitly omitted prior crimes from its holding and consequently, prior crimes are not elements of the offense even though they may operate to enhance a person's sentence. Apprendi, 530 U.S. at 490. This Circuit has recently addressed a similar issue concerning prior crimes in light of Apprendi in the context of 18 U.S.C. § 924(e). The penalty provision for the crime of possession of a firearm, and held that prior crimes, as stated in Apprendi were not elements of that offense. United States v. Santiago, 266 F.3u 151, 155 (2d Ca. 2001). Accordingly, petitioner's enhanced sentence for his prior crimes was not improper in light ofApprendi.
Petitioner in that case had argued, as Moulton does here, that Apprendi may call into question the Supreme Court's earlier ruling inAlmendarez-Torres v. United States, 523 U.S. 224, 228-35 (1998), which held that the enhanced penalty for the return of an illegal alien to the United States, if his removal was based on an aggravated felony conviction, does not describe a separate crime such that the aggravated felony must be charged in the indictment and proved beyond a reasonable doubt. This suggestion was based on Justice Thomas's concurrence inApprendi, in which he criticized his earlier vote in Almendarez-Torres intimating that a prior conviction may be an element of an offense under a recidivism statute. Apprendi, 530 U.S. at 520-21 (Thomas, J., concurring). In rejecting Santiago's claim, the Second Circuit stated that "Almendarez-Torres remains good law," and noted that any question regarding the viability of that holding was not a matter for the Circuit to decide. Santiago, 268 F.3d at 155 n. 6.
CONCLUSION
For the foregoing reasons, petitioner's Section 2255 motion is dismissed.
SO ORDERED.