Opinion
Crim. No. 90-00063-AH
February 13, 2001
ORDER
This matter is before the Court on Defendant's Motion to Set Aside, Vacate or Correct Sentence filed pursuant to 28 U.S.C. § 2255, filed on December 6, 2000 (Doc. 38). Defendant's Sentence following his guilty plea was affirmed by the United States Court of Appeals for the Eleventh Circuit on March 29, 1993. This Court denied Defendant's previously Motion for an enlargement of time in which to file pursuant to 28 U.S.C. § 2255 (Doc. 34). Defendant now purports to file afresh, this time relying upon the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) to declare the blanket unconstitutionality of 18 U.S.C. § 841. For the reasons below, the Court finds that Defendant's Motion brought pursuant to 28 U.S.C. § 2255 is time-barred and is therefore due to be, and hereby is, DENIED.
DISCUSSION
I. Statute of Limitations under § 2255.
Title 28 U.S.C. § 2255 provides, with regard to the matters presently at issue:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) The date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C.A. § 2255 (West 2000).
As best as can be determined, Defendant argues that the Apprendi decision retroactively holds 18 U.S.C. § 841 (a)(1) to be unconstitutional on its face. Defendant writes "the doors to collateral relief are always open when one has been convicted or sentenced under an unconstitutional statute that has been struck down by an intervening decision." Defendant's Memoranda in Support, p. 3. Since Defendant was indicted under and ultimately pled guilty to violating what he considers to be an unconstitutional statute in 18 U.S.C. § 841 (a)(1), Defendant reasons that he is not bound by the limitations period described above. As Defendant's misunderstanding of Apprendi could not be more pronounced, a short discussion of the holding of that case is in order.
II. The Rule in Apprendi.
In Apprendi v. New Jersey, the Supreme Court reexamined its prior decisions regarding the role of sentencing factors and enhancement triggers applicable to criminal defendants. After reviewing the historical background of common-law criminal indictment and sentencing procedure, the Court, writing through Justice Stevens, confirmed as a rule the principle first expressed in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Court addressed the question of whether the penalty enhancement section of a multipart federal statute (the federal car-jacking statute) defined a separate crime or was merely a penalty provision. Id. The sentencing judge viewed the provision in question as a sentencing factor and accordingly, he enhanced defendant's sentence using facts that had not been submitted to the jury for a determination. On certiorari review, the Court reversed and remanded, concluding that each portion of the statute, including the provision setting forth the sentencing enhancement factor, defined a separate offense. See Jones, 526 U.S. at 252, 119 S.Ct. at 1215.
In Apprendi, the defendant pled guilty to a New Jersey state charge of second-degree possession of a firearm for an unlawful purpose and third-degree unlawful possession of an antipersonnel bomb. See Apprendi, 120 S.CT. at 2352. Under New Jersey law, possession of a firearm for an unlawful purpose carried a term of imprisonment between five and ten years. A separate statute, described by the New Jersey courts as a hate-crime statute, provided for an extended term of imprisonment if the trial judge found, by a preponderance of the evidence, that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." Id. at 2351 (citing N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 2000)). The hate-crime statute authorized an increased term of imprisonment of 10 to 20 years.
At sentencing, the trial judge determined that the hate-crime enhancement applied, and sentenced Apprendi to 12 years imprisonment. Apprendi filed a direct appeal attacking the enhancement of his sentence under the hate-crime statute, contending that the hate-crime issue had not been submitted to the jury and, therefore, the court erred in applying the enhancement. The New Jersey Supreme Court affirmed the conviction and sentence, and the United States Supreme Court granted a writ of certiorari. The Supreme Court reversed, holding that because the enhancement under the hate-crime statute increased Apprendi's maximum statutory penalty. the issue should have been submitted to the jury and proven beyond a reasonable doubt. See Id. at 2362-63. Essentially, the Court reiterated what it claimed had already been established in Jones, namely that "[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." Apprendi, 120 S.Ct. at 2362-63.
In a subsequent appellate decision, United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000), the Eighth Circuit concluded that "[i]n Apprendi, the Supreme Court made it clear that the principle discussed in Jones is a rule of constitutional law." Id. at 931. Moreover, as the Aguayo-Delgado decision confirms, the Court's ruling in Apprendi means that in any drug case where the defendant is subject to penalties in excess of those prescribed by 21 U.S.C. § 841 (b)(1)(C), the government must charge drug quantity and prove that fact to the jury beyond a reasonable doubt. Id. at 932; see also Apprendi, 120 S.Ct. at 2366 n. 21 (signaling the relevance of the new rule to drug cases by referring to the Court's recent commentary on sentencing beyond the statutory maximum in drug conspiracy cases).
The Eleventh Circuit, in United States v. Rogers, 2000 WL 1451907 (11th Cir. 2000), has confirmed the principle expressed in Aguayo-Delgado. In Rogers, the defendant appealed his sentence of 360 months imprisonment and 5 years supervised release pursuant to a drug conviction under 21 U.S.C. § 841. The court focused on whether Rogers was properly sentenced in view of the fact that his sentence was arrived at, in part, by a sentencing judge's determination of a drug quantity attributable to Rogers, which not charged in the indictment or proven beyond a reasonable doubt to the jury. Id. at *3 The court reasoned:
Applying Apprendi's constitutional principle to section 841 cases, it is clear that the principle is violated if a defendant is sentenced to a greater sentence than the statutory maximum based upon the quantity of drugs, if such quantity is determined by the sentencing judge rather than the trial jury. The statutory maximum must be determined by assessing the statute without regard to quantity . . . In short, we hold today that drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt in light of Apprendi.Rogers, 2000 WL 1451907 at *9
III. Defendant's Petition is Time-Barred.
Thus, while Apprendi certainly has clarified the constitutional requirements of criminal indictments with respect to sentencing, the case has never been held to declare 18 U.S.C. § 841 unconstitutional as Defendant now claims. If the Defendant had actually been sentenced under a statute since declared unconstitutional, this Court would of course rule on the merits of Defendant's collateral motion without regard to any statute of limitations. That is not the present case, however, and the Court need not even decide whether Defendant's facts place him within the holding of Apprendi. This is because the Eleventh Circuit, in Joshua, has explicitly held that Apprendi does not apply retroactively to cases on collateral review:
We agree with the First Circuit that the Supreme Court has not declared Apprendi to be retroactive to cases on collateral review. For a new rule to be retroactive, the Supreme Court must make it retroactive to cases on collateral review. See In re Hill, 113 F.3d 181, 184 (11th Cir. 1997) (applying § 2244(b)(2)(A) in the context of an application to file a second or successive § 2254 petition). It is not enough that the new rule is or will be applied retroactively by the Eleventh Circuit or that it satisfies the criteria for retroactive application set forth by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Hill, 113 F.3d at 184. To date, the Supreme Court has not declared that Apprendi be applied retroactively to cases on collateral review. Moreover, even assuming arguendo that application of a new rule by the Supreme Court in a case on collateral review is sufficient to make that new rule apply retroactively, that has not occurred here. Apprendi was decided in the context of a direct appeal, and the Supreme Court has not applied it in a case on collateral review.In Re Joshua, 224 F.3d at 1283 ( referring to Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000)).
Moreover, every other circuit to have addressed the issue has held that Apprendi does not apply retroactively to cases on collateral review for purposes of certifying a second or successive petition for habeas corpus relief. See In re Tatum, 233 F.3d 857 (5th Cir. 2000); Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000); Rodgers v. United States, 229 F.3d 704 (8th Cir. 2000); Talbott v. State of Indiana, 226 F.3d 866, 868-70 (7th Cir. 2000). Though the Court is not here suggesting that Defendant's Motion falls into the following category, at least one other circuit court and a host of district courts have found that Apprendi also does not apply retroactively to original petitions for habeas corpus relief. See Smith, 231 F.3d at 1237-38; see also Ware v. United States, 124 F. Supp.2d 590 (M.D. Tenn. 2000); United States v. Johnson, F. Supp.2d 2000 WL 1801401 (D. Neb. Dec. 7, 2000); United States v. Joseph, 2000 WL 1789989 (E.D. La. Dec. 5, 2000); United States v. Pittman, 120 F. Supp.2d 1263 (D. Or. 2000); West v. United States, 123 F. Supp.2d 845 (D. Md. 2000); but see Darity v. United States (W.D.N.C. Dec. 4, 2000); United States v. Murphy, 109 F. Supp.2d 1059, 1064 (D. Minn. 2000).
In Talbott v. State of Indiana, the Seventh Circuit provides salient advice to the Apprendi-awed prison inmate and jailhouse counselor community:
If the Supreme Court ultimately declares that Apprendi applies retroactively on collateral attack, we will authorize successive collateral review of cases to which Apprendi applies. Until then prisoners should hold their horses and stop wasting everyone's time with futile applications . . . What is more, prisoners now peppering district judges with initial collateral attacks based on Apprendi should reconsider: the itch to invoke the latest decision of the Supreme Court can be costly, because a loss will require this court's approval to launch a later collateral attack if better grounds for relief become available. Federal law allows only one round of collateral review as of right, so prisoners should choose their issues wisely.Talbott, 226 F.3d at 869; see also United States v. Moore, 198 F.R.D. 39, 41 (N.D.N.Y. Dec 27, 2000) ("[P]risoners should discontinue wasting their time and Court time and resources with their attempts [through Apprendi] to invoke a myriad of inappropriate procedural mechanisms in an otiose effort to avoid or otherwise circumvent the statutory scheme under Chapter 153 of Title 28 of the United States Code (Habeas Corpus)").
As Defendant has demonstrated no legal authority authorizing this Court to disregard the statue of limitations applicable to his Motion untimely brought pursuant to 28 U.S.C. § 2255, Defendant's Motion is therefore time-barred, and hereby is DENIED.