Opinion
01 CV 4096 (RR)
January 9, 2002
LUIS PIMIENTA-ROSADO Inmate No. 53447-053 Unit No. 5751 Fort Dix, New Jersey Petitioner, Pro Se
HONORABLE ALAN VINEGRAD UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK Brooklyn, New York By: Paul Weinstein, Assistant U.S. Attorney Attorney for Respondent
MEMORANDUM and ORDER
Luis Pimienta-Rosado, who was convicted on December 12, 1997 as a result of his guilty plea to conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, 841(b)(1)(A), see United States v. Pimienta-Rosado, No. CR 97-0516(RR), now moves pro se to have his conviction and sentence vacated pursuant to 28 U.S.C. § 2255. Pimienta-Rosado is presently incarcerated, serving a 168-month prison term, which sentence reflects a twenty-month downward departure from his 188-to-235 month guideline range. Pimienta-Rosado unsuccessfully challenged his conviction and sentence on direct appeal. See United States v. Pimienta-Rosado, 199 F.3d 1324 (2d Cir. 1999), summary order available at 1999 WL 980970 (Oct. 6, 1999). Some twenty months later, on June 9, 2001, he filed the instant collateral challenge with this court. A liberal reading of Pimienta-Rosado's submission suggests the following claims: (1) his prosecution and sentence are at odds with the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), because (a) the indictment in his case failed to allege a specific quantity of drugs, (b) the quantity of drugs in his case was not proved beyond a reasonable doubt, and (c) his role as a supervisor or manager in the charged conspiracy was not proved beyond a reasonable doubt; (2) his guilty plea was not knowingly and voluntarily entered; and (3) his trial counsel was ineffective in failing to argue for a role reduction.
This departure, the equivalent of a one-point reduction in petitioner's offense level, was awarded in consideration of his role in effecting a global disposition of this complex case, thereby saving considerable court and prosecutorial resources.
A prisoner's papers are deemed filed on the date they are given to prison authorities for mailing. See. e.g., Zarvela v. Artuz, 254 F.3d 374, 377 (2d Cir. 2001) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)). The court assumes that Mr. Pimienta-Rosado gave his papers to prison authorities on the day they are dated, June 9, 2001.
The United States opposes Pimienta-Rosado's motion, arguing that petitioner's claims are both procedurally barred from collateral review and without merit. Having carefully reviewed the submissions of the parties, as well as relevant portions of the criminal record, this court agrees with respondent and hereby denies Pimienta-Rosado's motion. In briefly addressing the points raised in the petition, the court assumes familiarity with the facts, which are summarized in the Court of Appeals decision on direct appeal.
Discussion
I. Apprendi Claims
A. Procedural Bar
For reasons discussed at length in Herrera v. United States, 169 F. Supp.2d 92 (E.D.N.Y. 2001), this court finds that Pimienta-Rosado is procedurally barred from seeking collateral review of his Apprendi claims because (1) he failed to raise them on direct appeal, United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995); and (2) Teague v. Lane, 489 U.S. 288 (1989), generally proscribes the application of new criminal procedural rules on collateral review.
Like Herrera, Pimienta-Rosado cannot show good cause to excuse his procedural default on direct appeal. Neither can he show prejudice since he does not argue that he is actually innocent of the crime of conviction, see Bousely v. United States, 523 U.S. 614, 623 (1998), and his sentence is below the guideline range that would apply if he were sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) (applying to drug crimes without regard to quantity).
As for the Teague bar to petitioner's complaint, the court notes that Pimienta-Rosado, like Herrera, had the benefit of a specific citation to 21 U.S.C. § 841(b)(1)(A)(ii)(II) in his indictment to alert him "to the quantity of drugs at issue and the attending sentencing consequences." Herrera v. United States, 169 U.S. at 99. Further, unlike Herrera, who stood trial, Pimienta-Rosado signed a plea agreement that specifically stated that his plea would be to that part of 21 U.S.C. § 841(b)(1) providing for a prison term of ten years to life. Indeed, the court emphasized this point at petitioner's allocution before he made his final decision to plead guilty. See Plea Trans. Aug. 5, 1997 at 18. Under these circumstances, the failure to plead a specific drug quantity in the indictment that would trigger this sentencing range does not come within the limited exceptions to the Teague bar. See Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000) (refusing to applyApprendi to a collateral challenge to an indictment, holding that where a defendant has actual notice of the particular accusation against him and the sentence he might receive, "the omission of particular key words from the [formal charge] neither increases the risk that an innocent person will be convicted nor hinders the fundamental fairness of the trial").
B. Merits
Even if no procedural bar stood in the way of Pimienta-Rosado'sApprendi claim, petitioner would not be entitled to have his conviction or sentence vacated for the simple reason that his claim lacks merit.
1. Failure to Plead Drug Quantity in the Indictment
In Herrera, this court held that a grand jury's failure to specify a particular drug quantity in an indictment does not deprive the court of jurisdiction so as to warrant vacating a conviction. This is because 21 U.S.C. § 841(a)(1), 846 prohibit conspiracies to traffic in any quantity of cocaine. See Herrera v. United States, 160 F. Supp.2d at 101. In its recent en banc decision in United States v. Thomas, No. 98-1051, 2001 WL 1579993 (2d Cir. Dec. 23, 2001), the Second Circuit expressly rejected a direct appeal claim that an indictment's omission of drug quantity constituted a jurisdictional defect. Thus, even ifApprendi were to preclude this court from sentencing Pimienta-Rosado pursuant to § 841(b)(1)(A), the court would retain jurisdiction to proceed pursuant to § 841(b)(1)(C), which provides for a prison sentence from zero to twenty years for persons who traffic in unspecified quantities of cocaine. Since Pimienta-Rosado's sentence of 168 months was a departure from the same 188-35 month guideline range that would apply regardless of whether his case fell within § 841(b)(1)(A) or § 841(b)(1)(C), see generally United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001) (holding that Apprendi does not require a guideline factor "unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum" to be submitted to a jury or proved beyond a reasonable doubt), and since petitioner's sentence is well below the twenty-year maximum provided in § 841(b)(1)(C), cf. United States v. Guevara, No. 00-133, 2001 WL 1613512, at *5 (2d Cir. Dec. 18, 2001) (holding that "if drug quantity is used to trigger a mandatory minimum sentence that exceeds the top of the Guideline range that the district court would otherwise have calculated . . . that quantity must be charged in the indictment and submitted to the jury"), he cannot sustain his claim that a pleading defect in the indictment warrants vacating his conviction.
2. Failure to Prove Quantity Beyond a Reasonable Doubt
Pimienta-Rosado errs in asserting that drug quantity was not proved beyond a reasonable doubt in his case. At his plea allocution, he stated under oath that he knew the drug concealed in the containers was cocaine and that the quantity was more than five kilograms:
PIMIENTA-ROSADO: I went out to let the guy know that he had to come to receive the shipment.
THE COURT: of what?
PIMIENTA-ROSADO: of cocaine.
. . .
THE COURT: Did you know that more than five kilograms, more than 12 pounds of cocaine was involved in this shipment?
PIMTENTA-ROSADO: Yes.
Plea Trans. Aug. 5, 1997 at 34-35. As this court ruled in Torres v. United States, Nos. CV 00-6542 and CV 00-6667, 2001 WL 477253, at *3 (E.D.N.Y. Mar. 26, 2001), such an allocution amply satisfies the proof requirements of Apprendi. This conclusion is supported by recent Second Circuit decisions. See United States v. White, 240 F.3d 127, 134 (2d Cir. 2001) (holding that defendant's stipulation to a drug quantity that triggers a higher statutory minimum renders a jury finding on the issue unnecessary); United States v. Champion, 234 F.3d 106, 110 n. 3 (2d Cir. 2000) (per curiam) (same); cf. United States v. Thomas, 2001 WE 1579993, at *11 (distinguishing Thomas's case from those of defendants who "stipulate or allocute to the drug quantity uses to enhance . . . sentence.").
3. Failure to Prove Role Beyond a Reasonable Doubt
The sentencing guidelines provide for a possible four-point enhancement or four-point reduction in a base offense level depending on the role played in a criminal scheme. See U.S.S.G. §§ 3B1.1, 3B1.2. In Pimienta-Rosado's plea agreement, the parties anticipated that petitioner would receive a two-point reduction as a minor participant. See U.S.S.G. § 3B1.2(b). This court, however, found that his recruitment of five or more other participants warranted a three-point enhancement. See U.S.S.G. § 3B.1.1(c). The court's application of the guidelines on this point was upheld on direct appeal, nevertheless, Pimienta-Rosado now asserts that Apprendi requires a role enhancement to be pleaded in the indictment and proved beyond a reasonable doubt. This court disagrees.
In United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001), the Second Circuit expressly held that Apprendi does not require a guideline factor "unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum" to be submitted to a jury or proved beyond a reasonable doubt. Since the issue of role is unrelated to any statutory maximum or mandatory statutory minimum, it was properly resolved by the court applying a preponderance of the evidence standard.
II. Challenge to Guilty Plea
Pimienta-Rosado submits that his guilty plea was not knowing and voluntary because Apprendi required him to "be given notice of all potential factors which may serve to increase or enhance a sentence." Petition at 6. This is a variation on his other Apprendi-based claim, and is similarly procedurally barred and lacking in merit. As to the latter, this court notes that the Second Circuit recently interpreted Apprendi to require pleading notice of those facts that could "trigger a mandatory minimum sentence that exceeds the top of the Guideline range that the district court would otherwise have calculated." United States v. Guevara, 2001 WE 1613512, at *5. No facts in Pimienta-Rosado's case had this effect. Indeed, he was sentenced below the guideline range calculated by the court, not in excess of it.
III. Ineffective Assistance of Counsel
Pimienta-Rosado asserts that counsel was constitutionally ineffective at sentencing in failing to argue for a minor role adjustment to his base offense level and a two-level "safety valve" reduction pursuant to U.S.S.G. §§ 2D1.1(b)(4), SC1.2. The argument is flawed in several respects.
This safety valve provision now appears in the sentencing guidelines at § 2D1.1(b)(6).
First, as the government correctly points out in its memorandum in opposition to the petition, this claim is procedurally barred since Pimienta-Rosado failed to raise it on direct appeal despite the fact that he was represented by new counsel. See United States v. Pipitone, 67 F.3d at 38; Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993) (holding that ineffective assistance claims not raised on direct appeal are barred from collateral review where (1) petitioner was represented by new counsel on direct appeal, and (2) claim is based on record available for direct review).
Further, the claim is untimely since it was first raised more than one year after Pimienta-Rosado's conviction became final and was not triggered by the Supreme Court's subsequent decision in Apprendi. See 28 U.S.C. § 2244(d)(1).
Finally, the claim lacks merit. It is, of course, well established that a defendant who challenges the effectiveness of counsel carries a heavy burden. He must show both (a) that counsel's performance was objectively unreasonable, and (b) that but for counsel's errors, the result in his case would have been different. See Strickland v. Washington, 466 U.S. 668, 689-90, 694 (1984). Pimienta-Rosado can satisfy neither prong ofStrickland.
As to the first, the record plainly shows that counsel did urge the court to treat petitioner as a minor participant in the drug smuggling scheme and to give him safety valve consideration. By letter dated November 18, 1997, petitioner's attorney specifically challenged the Probation Department's guideline calculation because it failed to recommend both these adjustments. Counsel vigorously pursued these claims at sentencing. See Sentencing Trans. Dec. 12, 1997 at 5-14. Thus, his representation cannot be deemed objectively unreasonable.
In any event, Pimienta-Rosado cannot show that counsel could have made any additional argument that would have persuaded the court to grant the two adjustments at issue. Indeed, although the prosecutor supported the defense in urging minor role and safety valve consideration, id. at 4, the court found that the facts compelled a role enhancement. Indeed, there was no hesitation in its conclusion: "I do not understand how I could ever say that your client played a minor role in this scheme" Sentencing Trans. at 10; "I don't understand how anybody could have entered into an agreement that viewed your client as having a minor role here" id. at 13. of course, the court's conclusion that Pimienta-Rosado was a supervisor rendered him ineligible for safety valve consideration.See U.S.S.G. § 5C1.2(4).
Conclusion
For the reasons stated, the court finds that Pimienta-Rosado'sApprendi-based challenge to his prosecution and sentence, his related challenge to his guilty plea, and his claim of ineffective assistance of counsel must all be denied both as procedurally barred and without merit. The petition for a writ of habeas corpus is denied as is a certificate of appealability.
SO ORDERED.