Opinion
Nos. EP-05-CA-0314-DB, EP-03-CR-1285-DB.
October 18, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Roberto Sanchez-Gomez' ("Sanchez") pro se Motion to Vacate pursuant to 28 U.S.C. § 2255, filed in the above-captioned cause on August 17, 2005. After review, the Court finds that Sanchez is clearly not entitled to relief regarding his claims. Accordingly, it concludes that his Motion to Vacate should be denied and this matter summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will additionally deny Sanchez a Certificate of Appealability.
I. BACKGROUND A. Criminal cause EP-03-CR-1285-DB
On June 25, 2003, the Grand Jury sitting in El Paso, Texas returned a two-count Indictment against Sanchez, charging him with importing 1000 kilograms or more of marijuana into the United States from the Republic of Mexico, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(1)(G) (Count One); and possessing this same quantity of marijuana with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vii) (Count Two). Sanchez decided to exercise his constitutional right to trial by jury and accordingly entered a plea of not-guilty to the Indictment on July 3, 2003. After a three-day trial, the jury found Sanchez guilty as to both counts.
The Court deferred sentencing to allow for the preparation of a Presentence Report ("PSR"). It entered Judgment on January 27, 2004, sentencing Sanchez to a 120-month term of imprisonment and a 5-year term of supervised release as to each count, to run concurrently. The Court additionally ordered Sanchez to pay a total special assessment of $200.
Sanchez timely appealed, arguing that 21 U.S.C. §§ 841(b)(1)(A) and 960(b)(1)(G) are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because Congress structured the statutes such that the facts which determine the maximum sentence are sentence enhancements rather than elements of the offense. Sanchez acknowledged that circuit precedent, namely United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532 U.S. 1045 (2001), foreclosed his argument but nonetheless sought to preserve his claim for further review. The Fifth Circuit Court of Appeals summarily affirmed the judgment on August 18, 2004. The Supreme Court denied Sanchez' petition for a writ of certiorari on January 10, 2005.
B. Sanchez' Motion to Vacate pursuant to 28 U.S.C. § 2255
The Court has read Sanchez' claims in conjunction with the trial and sentencing transcripts prepared for purposes of appeal. Construing his claims liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972), it understands him to raise the following challenges to his conviction and sentence. First, Sanchez re-urges the argument that he presented on direct appeal ( i.e., that 21 U.S.C. §§ 841(b)(1)(A) and 960(b)(1)(G) are unconstitutional under Apprendi) (Ground One). Second, Sanchez contends that the Court erred in declining to reduce his sentence in light of his diminished mental capacity (Ground Two). Third, Sanchez asserts that the Court violated the holding of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005) (" Booker"), when it used his criminal history to enhance his sentence (Ground Three).
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is also well settled that a collateral challenge may not take the place of a direct appeal. If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
See Withrow v. Williams, 507 U.S. 680 (1993).
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
III. GROUNDS ONE TWO ARE PROCEDURALLY BARRED
After review, the Court concludes that Grounds One and Two are procedurally barred. As to Ground One, the Court finds that the Fifth Circuit Court of Appeals previously adjudicated Sanchez' claim. Nothing in Sanchez' present Motion to Vacate persuades the Court that it should revisit that disposition.
As to Ground Two, the Court finds that the record was sufficiently developed on direct appeal to allow him to raise this claim, but he did not do so. He is therefore not entitled to a merits review unless he can demonstrate cause and prejudice for his default. After due consideration, the Court finds that he has failed to show cause. To the extent Sanchez asserts that he did not raise Ground Two on the advice of his counsel, the Court finds that his reason is not sufficient to show "cause" within the meaning of the cause and prejudice test, as his claim is conclusory and moreover does not state an objective factor external to the defense.
Further, even assuming that Sanchez could show cause, he cannot show prejudice. Sanchez has failed to even allege facts suggesting that the Court abused its discretion in finding that his diminished mental capacity, while supporting a minor role adjustment, did not justify a separate downward departure from the applicable guideline range. Lastly, with respect to both Ground One and Ground Two, the Court notes that Sanchez' claims are not cognizable in a Motion to Vacate pursuant to 28 U.S.C. § 2255. IV. THE MERITS OF GROUND THREE
See United States v. Lopez, 923 F.2d 47, 50 (1991) (explaining that a district court's technical application of the Sentencing Guidelines does not give rise to a constitutional issue that is cognizable under 28 U.S.C. § 2255).
For the reasons discussed below, the Court concludes that Booker does not apply retroactively to judgments, such as Sanchez', that were already final upon Booker's release. Sanchez is accordingly not eligible for relief under its holding.
A. Booker's holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised the provision of the federal sentencing statute making it mandatory for district courts to apply the Sentencing Guidelines. While the district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Retroactivity of new rules announced by the Supreme Court of the United States
See United States v. Booker, ___ U.S. ___, ___, 125 S.Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).
Booker, ___ U.S. at ___, 125 S. Ct. at 748.
See Booker, ___ U.S. at ___, 125 S. Ct. at 748; see also 18 U.S.C. § 3553(b)(1).
See Booker, ___ U.S. at ___, 125 S. Ct. at 757; see also 18 U.S.C. § 3553(a).
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final. New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Schriro v. Summerlin, 542 U.S. 348, ___, 124 S. Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively, because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow.
Id. at ___, 124 S. Ct. at 2523.
Id. at ___, 124 S. Ct. at 2523.
Id. at ___, 124 S. Ct. at 2523 (internal quotation omitted).
Id. at ___, 124 S. Ct. at 2523 (internal quotation omitted).
Id. at ___, 124 S. Ct. at 2523.
A district judge may determine whether a new decision of the Supreme Court applies retroactively and thus whether a collateral attack pursuant to 28 U.S.C. § 2255 is timely under 28 U.S.C. § 2255 ¶ 16(3). C. Booker represents a new procedural rule that is not retroactive to cases on collateral review.
Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001); see also Wiegand v. United States, 380 F.3d 890, 892-93 (6th Cir. 2004) (stating that the district court should decide retroactivity in a first instance); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) ("Every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255 ¶ 6(3).").
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although "the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart."
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id. at ___, 124 S. Ct. at 2523.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; see Lloyd v. United States, 407 F.3d 608, 614 (3rd Cir. 2005) (joining its sister circuit courts of appeals in holding that Booker does not apply retroactively to initial motions under 28 U.S.C. § 2255 where the judgment was final as of January 12, 2005); Guzman v. United States, 404 F.3d 139, 144, (2d. Cir. 2005) (holding that Booker is not retroactive and does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
Schriro, 542 U.S. at ___, 124 S. Ct. at 2526.
In sum, this Court, in keeping with every circuit court of appeals to decide the issue, concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, petitioners whose judgments became final before January 12, 2005 may not claim relief pursuant to Booker. D. Discussion
See Lloyd v. United States, 407 F.3d at 614; Guzman, 404 F.3d at 144; United States v. Price, 400 F.3d at 845; Humphress, 398 F.3d at 856; Varela, 400 F.3d at 868; McReynolds, 397 F.3d at 481.
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
Here, Sanchez' conviction became final on January 10, 2005, the date on which the Supreme Court denied his petition for a writ of certiorari and two days before it released Booker. Since Booker provides Sanchez with no legal basis for relief, the Court will accordingly dismiss Ground Three with prejudice. V. CERTIFICATE OF APPEALABILITY
The Court also notes that Booker would not, in fact, afford Sanchez any relief from his sentence even if his judgment were otherwise eligible for review under its holding. Booker extended the rule of Apprendi, which carves out a specific exception for prior convictions. See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 748 (2005) (" 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.").
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2003) (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Sanchez' pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims. VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Roberto Sanchez-Gomez' Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Roberto Sanchez-Gomez' Motion to Vacate, Set Aside, or Correct Sentence [Docket no. 72], filed on August 17, 2005, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Roberto Sanchez-Gomez is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.