Summary
following Judge Parker's dissent and holding that Apprendi represents a substantive change in the law that is retroactively applicable on collateral review
Summary of this case from McCoy v. U.S.Opinion
00 Civ. 9695 (RJW), S2 91 Cr. 049 (RJW), 01 Civ. 5607 (RJW), S2 91 Cr. 049 (RJW), 01 Civ. 5788 (RJW), S2 91 Cr. 049 (RJW)
August 30, 2001
LUIS ROSARIO, Lewisburg, PA, Pro se.
LEONARD J. LEVENSON, ESQ., New York, New York, for Petitioners.
MARY JO WHITE, United States Attorney for the Southern District of New York, New York, New York, Attorney for Respondent.
OPINION
Petitioners Luis Rosario, Steven Ramos, and Hector Colon move to vacate, set aside, or correct their sentences pursuant to 28 U.S.C. § 2255 in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). For the reasons hereinafter stated, petitioners' motions are denied and the petitions are dismissed.
BACKGROUND
Petitioners were indicted, along with thirty co-defendants, on thirty-seven counts arising out of their participation in a heroin distribution ring headed by Ramos between 1988 and 1991. After a four-month trial before this Court in 1992, a jury convicted petitioners on all counts alleged in the indictment. Pursuant to then-applicable law, the Court found by a preponderance of the evidence that the quantity of heroin involved in the conspiracy was between ten and thirty kilograms and sentenced petitioners accordingly.
Rosario was sentenced to 264 months on Count One, conspiracy to distribute heroin in violation of 21 U.S.C. § 846, and 240 months on Count Seven, possession with intent to distribute and distribution of heroin in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2, to run concurrently with the sentence imposed on Count One. Ramos was sentenced to 480 months on Count Two, supervising a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (c), and 240 months each on Counts Four and Seven, maintaining premises for the purpose of distributing heroin in violation of 21 U.S.C. § 812, 856(a)(1) and 18 U.S.C. § 2, and possessing heroin with intent to distribute in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2, to run consecutively to each other and concurrently with the sentence imposed on Count Two. At resentencing upon remand, Colon received concurrent sentences of 188 months each on Counts One, Five, and Ten for conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and possession with intent to distribute heroin in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.
Colon's original sentence of 360 months on a firearms charge, which was to run consecutively to a sentence of 151 months on counts One, Five, and Ten, was vacated in light of the Supreme court's decision inBailey v. United States, 516 U.S. 137 (1995), and he was resentenced on September 5, 1996.
All three petitioners joined in a direct appeal challenging numerous aspects of their convictions but failing to raise whether the Court erred by not submitting drug quantity to the jury. On July 10, 1995, the Second Circuit affirmed the convictions. See United States v. Melendez, 60 F.3d 41 (2d Cir. 1995). Petitioners now move pursuant to 28 U.S.C. § 2255 for an order vacating their sentences as unconstitutional based on the Supreme Court's decision in Apprendi.
DISCUSSION
I. Statute of Limitations and Retroactivity of Apprendi
Section 2255 imposes a one-year statute of limitations on petitions attacking federal sentences on collateral review. 28 U.S.C. § 2255. Ordinarily the limitations period expires one year after a conviction becomes final; however, in the event the Supreme Court recognizes a new right that is made retroactively applicable to cases on collateral review, a petition asserting that new right may be filed within one year of the Supreme Court's decision. 28 U.S.C. § 2255(1) and (3). Since petitioners' convictions became final more than five years before the instant petitions were filed, it is under the "new retroactive right" provision of the statute that petitioners come before the Court, relying on the new rule announced in Apprendi.
Rosario also asserts that the language of count Seven of the indictment was insufficient to alert him to the fact that the government intended to proceed on an "aiding and abetting" theory under 18 U.S.C. § 2. Because this argument does not rely on any newly-discovered evidence or newly-recognized right that would extend the statute of limitations beyond October 2, 1996, the one year anniversary of the Supreme court's denial of certiorari in his case, Rosario's claim as to Count Seven is time-barred.
In Apprendi, the Supreme Court announced the following rule: "Other 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." Apprendi, 530 U.S. at 490. The threshold inquiry is whether this rule is substantive or procedural: substantive rules are automatically applied retroactively, procedural rules generally are not. Bousley v. United States, 523 U.S. 614, 620-21 (1998); United States v. Mandanici, 205 F.3d 519, 525 (2d Cir. 2000).
Few courts that have that have addressed the retroactivity of Apprendi have considered whether the rule is substantive or procedural. See United States v. Clark, ___ F.3d ___ (5th Cir. July 26, 2001), 2001 WL 845193, *3-7 (Parker, J., dissenting); United States v. Hernandez, 137 F. Supp.2d 919, 928-29 (N.D. Ohio 2001); Darity v. United States, 124 F. Supp.2d 355, 360-61 (W.D.N.C. 2000), overruled by United States v. Sanders, 247 F.3d 139 (4th Cir. 2001); Ware v. United States, 124 F. Supp.2d 590, 595-96 (M.D. Tenn. 2000). Most courts, focusing on the majority's statement in Apprendi that "[t]he substantive basis for New Jersey's enhancement is thus not at issue; the adequacy of New Jersey's procedure is," Apprendi, 530 U.S. at 475, have summarily concluded that the rule is procedural and have analyzed Apprendi using the framework of Teague v. Lane, 489 U.S. 288 (1989), which sets forth two narrow exceptions to the general rule of nonretroactivity for new procedural rules. See, e.g., United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001);Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2001); United States v. Pinkston, ___ F. Supp. 2d ___, 2001 WL 823470, *3 (M.D. Pa. July 17, 2001); United States v. Rosendary, ___ F. Supp. 2d ___, 2001 WL 760247 (W.D. Pa. July 9, 2001); Vasquez v. United States, 147 F. Supp.2d 55, 57-58 (D.P.R. May 31, 2001); United States v. Latney, 131 F. Supp.2d 31, 33-34 (D.D.C. 2001); United States v. Goode, 143 F. Supp.2d 817, 823-24 (E.D. Mich. 2001); Levan v. United States, 128 F. Supp.2d 270, 275-78 (E.D. Pa. 2001); Panoke v. United States, ___ F. Supp. 2d ___, 2001 WL 46941, *2-3 (D. Haw. Jan. 5, 2001); Klein v. United States, 125 F. Supp.2d 460, 467 (D. Wyo. 2000); United States v. Gibbs, 125 F. Supp.2d 700, 703 (E.D. Pa. 2000); United States v. Johnson, 126 F. Supp.2d 1222, 1224-26 (D. Neb. 2000); West v. United States, 123 F. Supp.2d 845, 846-47 (D. Md. 2000), aff'd 246 F.3d 671 (4th Cir. 2001); United States v. Pittman, 120 F. Supp.2d 1263, 1267-68 (D. Or. 2000); United States v. Murphy, 109 F. Supp.2d 1059, 1063 (D. Minn. 2000).
Teague analysis does not apply, however, to substantive rules, such as those construing the meaning of federal criminal statutes. Bousley, 523 U.S. at 620 ("[B]ecause Teague by its terms applies only to procedural rules, we think it is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress."). Accord Ianniello v. United States, 10 F.3d 59, 63 (2d Cir. 1993) ("the Teague line of cases does not purport to affect the holding [in Davis v. United States, 417 U.S. 333 (1974), that a § 2255 petitioner is entitled to attack his conviction based on an intervening change in substantive law]"). This Court, while recognizing that the Apprendi rule contains procedural elements, concludes that the primary feature of the new rule is its substantive construction of federal criminal statutes and that the rule is therefore retroactive.
The Court is persuaded by the rationale of the dissent in United States v. Clark, ___ F.3d ___, 2001 WL 845193, *4 (5th Cir. July 26, 2001), which distinguishes between the new, substantive aspects of Apprendi and the ancient, procedural ones. The Clark dissent points out that the procedural part of the rule — that a criminal defendant is entitled to "`a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt,'" Apprendi at 477 (alteration in original) (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)) — is not new: it is simply a recitation of the procedural guarantees contained in the Fifth, Sixth, and Fourteenth Amendments. Clark at *4. The new part of the Apprendi rule, on the other hand, is the Supreme Court's novel application of this long-recognized constitutional principle.
By holding that any fact that increases the maximum punishment for an offense must be submitted to a jury and proved beyond a reasonable doubt, the Supreme Court added substantive elements to every criminal statute purporting to allow a judge acting alone to impose a punishment in excess of the statutory maximum. Id. As the Court explained inApprendi, a sentencing factor that increases the maximum punishment for an offense is the "functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an `element' of the offense." Apprendi at 494 n. 19. Since the Apprendi rule interprets the meaning of a multitude of criminal statutes, including the narcotics statutes at issue here, it is a substantive rule of law retroactively applicable to cases on collateral review.
This result is consistent with the Second Circuit's recent decision inSantana-Madera v. United States, ___ F.3d ___, 2001 WL 876883 (2d Cir. August 3, 2001), that the new rule announced by the Supreme Court inRichardson v. United States, 526 U.S. 813 (1999), is substantive and therefore retroactive. Prior to Richardson, a jury deciding whether a defendant had engaged in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848 was required to unanimously agree that the defendant committed at least three federal narcotics violations, but it was not required to agree as to which particular violations constituted the offense. Santana-Madera at *1. In Richardson, the Supreme Court found this practice to be unconstitutional, holding that each of the violations making up the series was a separate element of the CCE offense that must be unanimously agreed upon by the jury. Id. at 818-19, 824. The Second Circuit concluded in Santana-Madera that because Richardson "interpreted a federal criminal statute and, in doing so, changed the elements of the CCE offense" it "alter[ed] the meaning of the substantive criminal law," and was therefore retroactively applicable on collateral review. Santana-Madera at *4.
Santana-Madera represents a departure from previous decisions implying that rules are substantive only if they "place certain conduct beyond the reach of punishment," Ianiello v. United States, 10 F.3d 59, 63 (2d Cir. 1993), or "legalize certain conduct previously thought to be criminal."Bilzerian v. United States, 127 F.3d 237, 242 (2d Cir. 1997). Because it was implicit in the jury's verdict in Santana-Madera that the jurors agreed that the defendant was guilty of at least three narcotics violations, the issue was not whether the defendant had potentially been convicted of conduct which was not illegal but rather whether each member of the jury had the same series of violations in mind when they voted to convict. As a result, the Second Circuit's determination that theRichardson rule is substantive confirms this Court's view that decriminalization of conduct is not an essential characteristic of a substantive rule.
This appears to be the correct result under Davis v. United States, 417 U.S. 333 (1974), which first established the principle that a substantive change in the law is applicable to cases on collateral review. Many decisions have interpreted Davis as holding that rules are substantive and thus applicable on collateral review only if they decriminalize conduct previously thought to be illegal, see, e.g., Bilzerian v. United States, 127 F.3d 237, 242 (2d Cir. 1997; Ianniello v. United States, 10 F.3d 59, 63 (2d Cir. 1993); Ingber v. Enzor, 841 F.2d 450, 453-54 (2d Cir. 1988); however, as this Court pointed out in Monsanto v. United States, 143 F. Supp.2d 273, 278 (S.D.N.Y. 2001), there is nothing in Davis that limits substantive rules in this manner.Davis suggests that the appropriate inquiry is not whether the new rule decriminalizes conduct, but rather whether the error of law sought to be raised is "`a fundamental defect which inherently results in a complete miscarriage of justice,' and whether `[i]t . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" Davis, 417 U.S. at 346 (alteration in original) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
A habeas petitioner who was the victim of a genuine Apprendi error meets this test. His imprisonment rests, at least in part, on a purely judicial finding made using the lowest standard of proof known to our judicial system. He has thus been deprived of his liberty without the benefit of the heightened protections that are the hallmarks of a criminal proceeding. Admittedly petitioners presenting legitimateApprendi claims are rare, but the flood of unmeritorious claims does not alter the fact that Apprendi represents a substantive change in the law that is retroactively applicable on collateral review. Therefore, since petitioners filed § 2255 motions raising the Apprendi issue within one year of the Supreme Court's decision, their petitions are timely under the statute of limitations contained in 28 U.S.C. § 2255(3).
II. All Three Petitions Are Procedurally Barred
Although petitioners are entitled to the benefit of the Apprendi rule on collateral review, their claims are procedurally barred unless they can show both cause for failure to raise the issue on direct appeal and actual prejudice resulting therefrom. Bousley v. United States, 523 U.S. 614, 622 (1998); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992)
A. Cause
Petitioners have established cause sufficient to excuse their failure to raise the Apprendi issue on direct appeal under the rule of Reed v. Ross, 468 U.S. 1 (1984). In Reed, the Supreme Court held that the novelty of a constitutional claim can constitute cause for failure to raise it on direct review if the claim's "legal basis (was) not reasonably available to counsel." Id. at 16. To hold otherwise, the Court said, would disrupt criminal proceedings by "encouraging defense counsel to include any and all remotely plausible constitutional claims that could, some day, gain recognition." Id. at 15-16. The Court went on to say that when it articulates a constitutional principle which
"overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved," . . . . there will almost certainly have been no reasonable basis upon which an attorney previously could have urged a (lower) court to adopt the position that this Court has ultimately adopted. Consequently, the failure of a defendant's attorney to have pressed such a claim before a (lower] court is sufficiently excusable to satisfy the cause requirement.
Id. at 17 (quoting United States v. Johnson, 457 U.S. 537, 551 (1982).Accord Ingber v. Enzor, 841 F.2d 450, 454-55 (2d Cir. 1988) (penalizing a § 2255 petitioner for failing to challenge a decade of entrenched precedent on direct appeal would "ascribe to attorneys . . . the power to prognosticate with greater precision than judges of this court" and would "encourage appeal of even well-settled points of law.").
This is precisely the situation at issue here: prior to Apprendi, all twelve circuit courts had specifically rejected the argument that drug quantity was an element of the offense under 21 U.S.C. § 841. See United States v. Mabry, 3 F.3d 244, 250 (8th Cir. 1993); United States v. Underwood, 982 F.2d 426, 429 (10th Cir. 1992); United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990); United States v. Campuzano, 905 F.2d 677, 679 (2d Cir. 1990); United States v. Lam Kwong-Wah, 966 F.2d 682, 685 (D.C. 1992); United States v. Moreno, 899 F.2d 465, 472-73 (6th Cir. 1990); United States v. Barnes, 890 F.2d 545, 551 n. 6 (1st Cir. 1989); United States v. Ocampo, 890 F.2d 1363, 1372 (7th Cir. 1989); United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United States v. Gibbs, 813 F.2d 596, 599-600 (3d Cir. 1987); United States v. Morgan, 835 F.2d 79, 81 (5th Cir. 1987); United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986). To now penalize petitioners for failing to raise an Apprendi claim on appeal when that argument had been explicitly foreclosed by the Second Circuit and every other circuit court in the country would be unfair and produce an undesirable result. As the Supreme Court noted in Reed, such a policy would thwart judicial economy in criminal proceedings. Defense lawyers would have to choose between raising every remotely conceivable constitutional claim at trial and on appeal, including those precluded by binding precedent, or being subject to claims for malpractice and ineffective assistance of counsel in the event the Supreme Court eventually recognizes a right that might have benefitted their client had they anticipated it long before.
Conversely, allowing Apprendi to be raised on collateral review for the first time would not contravene any policy underlying the "cause and prejudice" test. The main purpose of the test, as explained by the Supreme Court in Reed, is to promote the finality of convictions by providing a disincentive for attorneys to deliberately forego a constitutional claim on appeal for tactical reasons and then raise the issue on collateral review. Reed, 468 U.S. at 14. If the claim was effectively unavailable on appeal, however, a defense lawyer's failure to raise it "does not seriously implicate any of the concerns that might otherwise require deference to a . . . procedural bar." Id. at 15. Accordingly, because petitioners were prevented by firmly entrenched precedent from raising theApprendi, issue on direct appeal, the Court finds that petitioners have demonstrated cause sufficient to excuse their failure to raise the issue on direct appeal.
B. Prejudice
Satisfaction of the cause requirement is not enough to overcome procedural default, however. In addition to cause, a habeas petitioner must also demonstrate actual prejudice resulting from the alleged error.United States v. Frady, 456 U.S. 152, 167-68 (1982); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). The degree of prejudice required is significantly greater than that necessary on direct review.Frady at 165-66. A habeas petitioner must show that the errors about which he complains not only "created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady at 170. In other words, a habeas petitioner can demonstrate "pervasive actual prejudice" only by showing that he "was denied `fundamental fairness' at trial." Murray v. Carrier, 477 U.S. 478, 494 (1986)
Petitioners have not met this heavy burden. They do not contest the validity of their convictions, only their sentences. Thus, they have not alleged that their entire trial was riddled with constitutional error as required by the "actual prejudice" standard. The only error alleged by petitioners occurred at their sentencing when the judge, rather than the jury, decided the quantity of drugs involved in the conspiracy. Although it is now apparent that this was incorrect under Apprendi, petitioners were not prejudiced because of the error.
First, Apprendi was not implicated at all in connection with Ramos' and Colon's sentences because they were within the applicable statutory maximums authorized by the jury's verdict. The Second Circuit has held that even where drug quantity is not submitted to the jury, Apprendi is not violated so long as the sentence imposed does not exceed the statutory maximum that is sustained by the jury's verdict. See United States v. Garcia, 240 F.3d 180 (2d Cir. 2001), cert. denied ___ U.S. ___ (Jun. 29, 2001); United States v. White, 240 F.3d 127 (2d Cir. 2001). This result is dictated by the Apprendi opinion itself: the Supreme Court explicitly reaffirmed the holding of McMillan v. Pennsylvania, 477 U.S. 79 (1986), which established that a judge has the discretion to consider factors not submitted to the jury in arriving at an appropriate sentence within the statutory maximum. Apprendi at 487 n. 13.
Here, Colon received concurrent sentences of 188 months on three separate narcotics counts. Because this was less than the twenty-year statutory maximum authorized by 21 U.S.C. § 841(b)(1)(C) for narcotics violations involving an indeterminate amount of drugs,Apprendi was not implicated by his sentence. Ramos was sentenced to forty years for engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 and twenty years on each of two narcotics counts. Again, because this was within the statutory maximum of life imprisonment for supervising a continuing criminal enterprise dealing in even a small amount of drugs, see 21 U.S.C. § 848(a), Apprendi, was not violated, and Ramos therefore cannot show that he suffered actual prejudice. Accord Santana-Madera, 2001 WL 876883 at *6.
Rosario is the only petitioner to state a cognizable Apprendi claim; however, he has not demonstrated actual prejudice. Although Rosario' s sentence of 264 months on a single count exceeded the statutory maximum supported by the jury's verdict by 24 months, he was not denied "fundamental fairness" and therefore did not suffer "pervasive actual prejudice" from not having the benefit of the Apprendi rule at trial or on direct review. Had the issue of drug quantity been presented to the jury, it undoubtably would have found that the conspiracy in which Rosario participated involved far more heroin than the amount necessary to justify his sentence.
In order to sustain Rosario' s sentence of 264 months, the jury would have had to find that 100 grams or more of heroin were involved in the conspiracy. See 21 U.S.C. § 841(b)(1)(B) (providing that the maximum sentence for a violation involving 100 grams or more of heroin is forty years.) Since the government presented evidence that the heroin distribution ring in which Rosario actively participated sold what the Second Circuit characterized as "massive amounts" of heroin at seven locations, including a New York state prison, for a period of two years,United States v. Melendez, 60 F.3d 41, 44 (2d Cir. 1995), it is inconceivable that the jury would have found that the quantity of heroin sold was less than 100 grams. Indeed, when at his sentencing the Court rejected the government's estimate of the amount of heroin distributed by the conspirators at between 30 and 100 kilos and determined that the amount was between 10 and 30 kilos, Rosario withdrew his objection to drug quantity. See Jan. 26, 1993 Sentencing Tr. at 356.
Therefore, since none of the petitioners have demonstrated prejudice sufficient to excuse their failure to raise an Apprendi argument on direct appeal, their petitions are procedurally barred.
CONCLUSION
Although the new rule of criminal law announced in Apprendi is retroactively applicable to cases on collateral review, petitioners cannot demonstrate actual prejudice resulting from the Apprendi error sufficient to overcome the procedural bar, and the petitions are therefore dismissed.
It is so ordered.