Opinion
No. 04 Civ. 6128 (WHP).
September 21, 2005
ORDER
Petitioner Luis Tapasco ("Tapasco" or "Petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Relying on Apprendi v. New Jersey, 530 U.S. 466 (2004) and Blakely v. Washington, 542 U.S. 296 (2004), Petitioner argues that this Court's sentence violated his Sixth Amendment right to a jury trial. For the reasons set forth below, Tapasco's petition is denied.
BACKGROUND
On March 29, 2002 Petitioner pled guilty to conspiracy to possess cocaine, and possession with intent to distribute cocaine. (Transcript of Sentencing Hearing, dated Mar. 29, 2002.) On July 26, 2002, this Court sentenced Tapasco to a prison term of 108 months. (Transcript, dated July 26, 2002 ("Tr.") at 14.) Tapasco's base offense level under the sentencing Guidelines (the "Guidelines") was 36. (Tr. at 14.) This Court further subtracted three levels because Petitioner accepted responsibility in this case. (Tr. at 14.) Finally, this Court found that Tapasco qualified for "safety valve" relief pursuant to U.S.S.G. § 5C1.2(a) and therefore further reduced two levels. (Tr. at 14.) Based on these adjustments, the final offense level was 31, resulting in a guideline range of 108 to 135 months. (Tr. at 14.) This Court ultimately sentenced Tapasco to 108 months of imprisonment. (Tr. at 14.) Judgment was entered on July 29, 2002. (Judgment, dated July 29, 2002 ("Judgment") at 1.)
Tapasco filed a timely notice of appeal. (Notice of Appeal, dated August 2, 2002 ("Appeal") at 1.) The Second Circuit affirmed the judgment of this Court on March 14, 2003. United States v. Tapasco, No. 02-1483, 2003 WL 1191175, at *2 (2d Cir. 2003). On July 21, 2004, Petitioner moved to vacate his sentence, arguing that the Guidelines enhancements this Court applied violated his Sixth Amendment right to a jury trial. (Petition at 5.) Petitioner also contends that he was provided "ineffective assistance of Counsel at trial and on Appeal for his failure to raise the issue above." (Petition at 5.)
DISCUSSION
Under 28 U.S.C. § 2255, a prisoner in custody may move to have his sentence vacated on the grounds that "the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum allowed by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
I. Application of Apprendi
Petitioner's reliance on Apprendi is misplaced, becauseApprendi's holding applies only to judge-enhanced sentences that exceed the maximum sentence allowed by statute. 530 U.S. at 466; see also United States v. Booker/Fanfan, 125 S.Ct. 738, 755 (2005) (holding that "[a]ny fact . . . which is necessary to support a sentence exceeding the maximum authorized by 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.") Here, Petitioner pled guilty to conspiracy to possess with intent to distribute cocaine and the substantive crime of possession with intent to distribute cocaine, which carries a maximum statutory sentence of life — a term far exceeding Petitioner's sentence. See 21 U.S.C. § 841. Thus, Petitioner's sentence does not violate Apprendi. See United States v. King, 345 F.3d 149, 151 (2d Cir. 2003) (holding that "Apprendi's requirement that factors related to sentencing be submitted to the jury and proved beyond a reasonable doubt applies only when the factors in question increase the penalty for a crime beyond the statutory maximum" (internal quotation marks omitted)).
Further, Apprendi is not retroactive. See, e.g., Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003) ("Apprendi does not apply retroactively to initial § 2255 motions for habeas relief"); accord Love v. Menifee, 333 F.3d 69, 73 (2d Cir. 2003).
II. Application of Blakely and Booker/Fanfan
In Blakely, the Supreme Court found a state court sentence enhancement based on judicial determinations not made by a jury unconstitutional. 124 S.Ct. at 2542. Subsequently, in Booker the Court held that the Guidelines violated the Sixth Amendment to the extent they required a court to impose enhancements.Booker, 125 S.Ct. at 756. However, the Court acknowledged that preventing a judge from "relying on a presentence report for factual information" would "undermine the sentencing statute's basic aim of ensuring similar sentences for those who have committed similar crimes in similar ways." Booker, 125 S.Ct. at 760-62. Thus, the Court invalidated only those provisions of the Guidelines "that have the effect of making the Guidelines mandatory." Booker, 125 S.Ct. at 746. Accordingly, the Court rendered the Guidelines advisory, permitting courts to consider the guidelines and find facts as long as the sentence imposed does not exceed the statutory maximum. Booker, 125 S.Ct. at 764 (holding that absent provisions making the Guidelines mandatory, "the Act satisfies the Court's constitutional requirement and falls outside the rule of Apprendi"). The Second Circuit has summarized the law as follows:
[A]t this point, we can identify several essential aspects of Booker/Fanfan that concern the selection of sentences. First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the Guidelines and all of the other factors listed in section 3553(a). Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553(a), whether (i) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence. Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005). Here, Tapasco's sentence does not run afoul of Booker orCrosby, but instead fully conforms with those decisions.
In any event, Blakely and Booker do not apply here. As the Second Circuit explained, "a new rule of constitutional law does not apply retroactively to cases on collateral review unless the rule is substantive or a `watershed' rule of procedure that affects the fundamental fairness and accuracy of the criminal proceeding." Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005) (citing Schriro v. Summerlin, 348 U.S. 348, ___, 124 S.Ct. 2519, 2522-23 (2004); Teague v. Lane, 489 U.S. 288 (1989)) (internal quotation marks omitted). Indeed, because Booker does not establish a substantive or "watershed" rule, it is not retroactive. Guzman, 404 F.3d at 141-43; see Humphress v. United States, 398 F.3d 855, 862 (6th Cir. 2005) (holding that Booker is not retroactive under the "substantive" or "watershed" rule exceptions of Teague);Hamdani v. United States, No. Civ. 04-3332 (DGT), 2005 WL 419727 at *2 (E.D.N.Y. Feb. 22, 2005) ("Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005." (internal quotation marks omitted)); see also United States v. Morgan, 406 F.3d 135 (2d Cir. 2005) (holding that "the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements"). Accordingly, petitioner's sentence does not violate Blakely or Booker.
Further, since Apprendi, Blakely and Booker are not retroactively applicable, Tapasco's petition is time-barred because it was filed over a year after this Court entered judgment. See 28 U.S.C. § 2255(3).
III. Ineffective Assistance of Counsel Claim
Finally, Petitioner claims ineffective assistance of counsel because his counsel did not raise the Apprendi and Blakely issues in the trial court or on appeal. A claim for ineffective assistance of counsel will succeed only if Petitioner, who "bears the burden on both points," Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir. 1994), shows that "counsel's representation fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would be different."Strickland v. Washington, 466 U.S. 668, 669 (1984). Here, Tapasco's claim is without merit because Apprendi does not apply, and Blakely was not decided until after his appeal.See Andreu v. United States, No. 01 Civ. 1178 (HB), 96 Cr. 1145 (HB), 2001 WL 1488190, at *5 (S.D.N.Y. Apprendi does not apply, and Blakely was not decided until after his appeal. See Andreu v. United States, No. 01 Civ. 1178 (HB), 96 Cr. 1145 (HB), 2001 WL 1488190, at *5 (S.D.N.Y. Nov. 21, 2001) (declining to find ineffective assistance of counsel for "failing to raise futile arguments."). Thus, Petitioner's ineffective assistance of counsel claim is denied.
CONCLUSION
For the reasons set forth above, petitioner Luis Tapasco's petition for a writ of habeas corpus is denied. Moreover, because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not be issued. See 28 U.S.C. § 2253(c)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996. In addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.See Copperedge v. United States, 369 U.S. 438 (1962). The Clerk of the Court is directed to mark this case closed.
SO ORDERED.