Opinion
No. 3:97-CR-342-M and No. 3:99-CV-2823-M
July 11, 2001
AMENDED FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the United States District Court for the Northern District of Texas, this case has been referred to the United States Magistrate Judge. These amended findings, conclusions and recommendation of the Magistrate Judge are entered to correct clerical errors in the original findings, conclusions and recommendation. The substance of the original decision has not been changed.
FINDINGS AND CONCLUSIONS:
Type of case:
Thomas Perez, Movant, seeks to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
Parties:
Movant is a federal prisoner currently incarcerated in a federal correctional facility. Respondent is the United States of America.
STATEMENT OF THE CASE
A jury convicted Movant of Conspiracy to Possess Controlled Substances in violation of 21 U.S.C. § 846, and the trial court sentenced him to 140 months of imprisonment, a five-year term of supervised release, and a special assessment of $100. Movant appealed to the United States Court of Appeals for the Fifth Circuit. He raised one sentencing issue on appeal. The appellate court affirmed Movant's conviction in an unpublished opinion. United States v. Perez, No. 98-10318 (5th Cir. Dec. 9, 1999). Movant then filed this motion pursuant to 28 U.S.C. § 2255. In August 2000, Movant sought leave to supplement the motion with another claim. The Court granted Movant leave to supplement the § 2255 motion, and Movant filed the supplement on September 8, 2000.
No hearing is required on a § 2255 motion if the allegations, "viewed against the record, either fail to state a claim for relief or are `so palpably incredible or patently frivolous as to warrant summary dismissal.'" Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985), quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985). An evidentiary hearing is not required in this case because the record is dispositive of Movant's claims.
Movant claims:
(1) he was denied due process, a fair trial, and the effective assistance of counsel because the prosecutor improperly shifted the burden of proof to the defense in the closing argument;
(2) he was denied due process, equal protection, a fair trial, and the effective assistance of counsel because transcripts of controverted tape recordings were admitted into evidence and considered by the jury during deliberations;
(3) he was denied due process, a fair trial, and the effective assistance of counsel because the trial court erroneously instructed the jury on reasonable doubt;
(4) he was denied due process, a fair trial, equal protection, and the effective assistance of counsel because his case was not severed from that of his codefendants; and
(5) the jury should have determined the amount of drugs beyond a reasonable doubt.
SCOPE OF REVIEW
The scope of post-conviction relief pursuant to 28 U.S.C. § 2255 is limited; the statute affords judicial review of constitutional claims that could not have been raised on direct appeal and would, if unaddressed, result in a complete miscarriage of justice. See United States v. Perez, 952, F.2d 908, 909 (5th Cir. 1992); see also United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). A final conviction is challengeable under this statute only if (1) a sentence is unconstitutional or imposed in violation of federal law; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum penalty authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; see Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).Before a movant may raise an issue for the first time in a § 2255 proceeding, he must show "cause" for his procedural default in failing to raise the issue on appeal and "actual prejudice" resulting from the error. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982); see also United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). This high hurdle ensures that final judgments command respect and that their binding effect is not disturbed by an endless series of post-conviction collateral attacks. See Frady, 456 U.S. at 164-65. The cause and prejudice test may be satisfied if it appears that counsel was ineffective. See United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995); see also United States v. Patten, 40 F.3d 774, 775 (5th Cir. 1994), cert. denied, 515 U.S. 1132 (1995). Moreover, ineffective assistance of counsel may constitute an independent basis for post-conviction relief. See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992); see also Shaid, 937 F.2d at 232.
EXAMINATION OF THE CLAIMS
Movant's first four claims are primarily claims of trial errors that he should have raised on appeal. Respondent contends the claims are procedurally defaulted. To the extent Movant is attempting to claim errors in the jury instructions, prosecutorial misconduct during closing argument, errors in the admission of transcripts into evidence, and the trial court's failure to sever Movant's case from that of his codefendants, his motion should be denied. Petitioner procedurally defaulted those claims by not bringing them on appeal, and he has failed to show cause, prejudice, and actual innocence. Nevertheless, in his reply, Movant notes that he has couched his claims in terms of ineffective assistance of counsel. Accordingly, the Court will consider whether Movant has proved that counsel provided constitutionally ineffective assistance.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art. VI. To merit relief pursuant to § 2255 on a claim of ineffective assistance of counsel, a movant must demonstrate that his trial counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 689; Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 494 U.S. 1012 (1990). A defendant must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
A. Counsel's Failure to Object to the Trial Court's Admission of Transcripts into Evidence and Their Consideration by the Jury During Deliberations
The government used monitoring devices to record conversations. It offered several recordings and transcripts of recorded conversations into evidence. The government laid the foundation for their admission, and they were admitted without objection from any of the defendants. (Tr. Vol. IV at 17-24, 150-56; Vol. V. at 17-24; Vol. 6 at 37-38.) A jury may consider transcripts during its deliberations. United States v. Onori, 535 F.2d 938, 949 (5th Cir. 1976). Counsel's failure to raise a meritless objection is not ineffectiveness of counsel; it is the very opposite. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.), cert. denied, 513 U.S. 966 (1994). Counsel had no legal basis for objecting to the admission of the tapes and transcripts. Accordingly, failure to object to their admission or their use during the jury's deliberations was not ineffective assistance of counsel.
B. Counsel's Failure to Object to a Prosecutor's Statement During Closing Argument and Request a Curative Instruction
Movant claims that he was denied effective assistance of counsel because counsel failed to object to a part of the prosecutor's closing argument and request a curative instruction. The government provided English transcripts of conversations that were tape recorded in Spanish. Defense counsel contested the accuracy of the English translations of the Spanish tapes, but furnished only one transcript for the defense. In closing argument, the prosecutor stated:
The law allows the defense to provide transcripts. Why have they not provided any but that one transcript? Ask yourself that question.
(TR., Vol. VIII at 104-05.) Courts recognize the particular difficulties in judging counsel's performance. A fair assessment of an attorney's performance requires that the Court make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 688. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1956).
The Court has reviewed the trial transcript, including the closing arguments and the jury instructions. Movant's defense was entrapment. Counsel's closing argument focused entirely on entrapment, rather than the accuracy of the transcripts. The Court concludes that counsel decided as a matter of trial strategy that it would be best not to object at closing argument to the prosecutor's statement. An objection might have drawn undue attention to the statement, reemphasize the government's portion of the closing argument, and detracted from counsel's argument that the Government entrapped Movant. Movant failed to overcome the presumption that, under these circumstances, the challenged action was sound trial strategy. See Michel, 350 U.S. at 101 (holding that where defense counsel chose not to file a timely motion to quash, this fact alone did not overcome the presumption of effectiveness of counsel because the delay could be considered sound trial strategy). Moreover, Movant has failed to show that he was prejudiced by counsel's failure to object. Even if counsel had objected to the remark it would not have changed the result. For a movant to prevail on grounds of prosecutorial misconduct, the prosecutor's comments must have so infected the trial with unfairness that the resulting conviction amounted to a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). The single remark did not infect the trial with unfairness, particularly in light of (1) the trial court's instructions to the jury regarding the origin and use of the transcripts and (2) the codefendants' closing arguments. Counsel for one of the codefendants rebutted the prosecutor's argument about the transcripts. She argued as follows:
The transcripts in this case that the government wants to say are evidence against my client I think is foolishness. There are people on the jury who speak Spanish. They can listen to those tapes. And as the judge specifically instructed you, the government provided translations that were made by the case agent, by Agent Garcia, who basically admitted that he transcribed the conversation as he thought he remembered it.
And Nelson Rodriguez who one minute claims not to speak English and the next moment is reading steadfastly from the transcript [sic]. They are the ones who made the transcripts, and you don't have to believe them.
You can listen to those tapes, and if you speak Spanish you can see if you can hear what they're telling you that they hear. And if you don't speak Spanish, you can listen and see if you even hear the voices that they claim to have heard. They are not on there [sic] those tapes are so bad.
And the government tried to say, well, if the defense didn't agree with those translations, they could have transcribed them themselves.
Well, I submit to you that the defense has listened to those tapes numerous times repetitively, but if we can't make a translation of it because we can't understand it, then we couldn't bring you a different translation. And that's precisely what the truth is.
Take them back there, listen to them yourself [sic]. See if you can even distinguish voices on those tapes. I submit to you you can't. But that is totally your right.
(Tr. Vol. VIII at 131-32.)
Counsel for another codefendant also addressed the tape recordings and transcripts. He stated:
Even with the transcripts, I only really had a problem with one transcript, and that was the one I played for you. The one where the music is so loud that I couldn't hardly her it [sic]. I couldn't hear the words that were being spoken. I couldn't identify the voice of my client on there. I don't think you could. My client couldn't.
The DEA could only identify one thing that they said he said on there, and they came up with two different versions of it. And the final version of it, they said that he was talking about the registration process, a totally innocuous subject. And that was the only statement that they could come up with on tape that they could contribute [sic] to my client.
(Tr., Vol. VIII at 143.) The trial court instructed the jury regarding the transcripts.
Typewritten transcripts of recorded conversations Several exhibits have been identified as typewritten transcripts of oral conversations. These transcripts were prepared from tapes that were received in evidence. The recorded conversations were in Spanish and were translated from Spanish into English. The transcripts received as evidence reflect the translation.
You may regard the transcripts as evidence of recorded conversations and as evidence of the identity of the speakers.
However, you are specifically instructed that whether the transcripts correctly or incorrectly reflect the content of the conversations or the identity of the speakers is for you to determine based upon your evaluation of the testimony concerning the making of the tapes, the preparation of the transcripts, and the translations of the conversations into English. If you should determine that the transcripts or translations are in any respect incorrect or unreliable, you should disregard them to that extent.
The trial court also instructed the jury as follows:
. . . The defendants have pleaded "not guilty" to the charges in the indictment. These pleas put in issue each of the asserted essential elements of the offense as described in these instructions, and impose on the government the burden of establishing each of the elements by proof beyond a reasonable doubt.
A defendant is presumed by law to be innocent. Each defendant must be presumed by you to be innocent thoroughout your deliberations until such time, if ever, you as a jury are satisfied, after careful and impartial consideration of all the evidence in the case, that the government has proven him guilty beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the defendant is guilty, the presumption of innocence alone is sufficient to find the defendant not guilty.
The law does not require persons accused of an offense to prove their innocence or produce any evidence at all and no inference whatever may be drawn from the election of a defendant not to testify. The government has the burden of proving beyond a reasonable doubt that a defendant has committed every element of the offense alleged, and if it fails to do so, you must find the defendant not guilty. This burden never shifts to a defendant, for the law never imposes upon a defendant in a criminal case the burden of calling any witnesses or producing any evidence.
Additionally, the trial court instructed the jury as follows:
Remember that any statements, objection or arguments made by the lawyers are not evidence in the case.
The trial court clearly instructed the jury that the burden of proof is never shifted to the defendants and that the jury is not to consider the prosecutor's remarks in closing argument as evidence. Movant has not shown that counsel's failure to object to the prosecutor's remark was deficient performance. Moreover, he has not shown that he was prejudiced by counsel's failure to object.
C. Counsel's Failure to Object to the Wording of a Jury Instruction on Multiple Defendants
Movant claims counsel provided ineffective assistance by failing to object to the following jury instruction on multiple defendants:
A separate offense is charged against each of the defendants in the indictment. You should give separate consideration and render separate verdicts with respect to each defendant. In determining whether a defendant is to receive a verdict of guilty or not guilty, you must examine the conduct of that defendant and the evidence that applies to that defendant just as if the defendant were being tried alone. If you find that a defendant's guilt has not been proved beyond a reasonable doubt with respect to the offense charged in the indictment, a verdict of not guilty should be returned for that defendant. Your verdict as to any one defendant should not influence your verdict respecting another defendant. You may find any one or more of the defendants guilty or not guilty as to each count.
(Tr., Vol. VIII at 84.) Movant contends counsel should have objected to the phrase "a verdict of not guilty should be returned for that defendant." Movant contends the phrase should state "a verdict of not guilty must be returned for that defendant."
The Fifth Circuit Pattern Jury Instructions on Multiple Defendants-Multiple Counts, § 1.23, uses language similar to that used here. It provides:
A separate crime is charged against one or more of the defendants in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each defendant.
[Emphasis supplied]. Other courts have held that it is not reversible error for a trial court to instruct that the jury "should acquit" rather than "must acquit." See United States v. Kerley, 838 F.2d 932, 940 (7th Cir. 1988); see also United States v. Cano, 1997 WL 11229 (N.D. Ill. 1997). In this case, there is no chance the jury considered the language precatory. In at least two other places in the instructions, the trial court instructed the jury with respect to the government's burden of proof and its duty to acquit. The Court stated:
The government has the burden of proving beyond a reasonable doubt that a defendant has committed every element of the offense alleged, and if it fails to do so, you must find the defendant not guilty.
(Tr., Vol. VIII at 80). It also stated:
[I]f you find beyond a reasonable doubt that a conspiracy did exist and that the object or purpose of the conspiracy was as alleged in the indictment, and that the defendant under consideration was a member of the conspiracy, you must find that defendant guilty. . . . Otherwise, you must find that defendant not guilty.
(Tr. Vol. VIII at 97.) Movant failed to prove counsel's performance was deficient and to show prejudice to his defense resulting from counsel's failure to object to the trial court's instruction on multiple defendants.
D. Counsel's Failure to Seek a Severance
Movant claims counsel provided ineffective assistance by not seeking severance of his trial from that of his codefendants. All the codefendants were alleged to be partners in the same drug conspiracy. As such, they were properly joined pursuant to FED. R. CRIM. P. 8(b). A defendant seeking severance bears a heavy burden of proving the need for a separate trial and "specific and compelling prejudice" if he is tried with his codefendants. United States v. Dillman, 15 F.3d 384, 392 (5th Cir.), cert. denied, 513 U.S. 866 (1994). Vague and conclusory allegations do not justify habeas relief See United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert denied, 467 U.S. 1251 (1984); United States v. Jones, 614 F.2d 80, 82 (5th Cir.), cert. denied, 446 U.S. 945 (1980).
The defendants in this case did not present "mutually antagonistic defenses." Movant's defense was entrapment. His codefendants claimed they lacked any knowledge of the conspiracy. Movant contends counsel for one codefendant stated twice in his closing argument that Movant was guilty. He claims counsel for the other codefendant told the jury in closing argument that Movant lied when he testified in his own defense. He notes that the prosecutor told the jury that some of the defendants were pointing the fingers at others. Movant's theory is that because the codefendants both claimed they were innocent and attempted to shift the blame to him, the jury concluded he was guilty without regard to whether the Government proved its case beyond a reasonable doubt. The fact that codefendants blame one another is not a sufficient reason, without more, to warrant severance. See Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993). In other words, defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. See, e.g., United States v. Martinez, 922 F.2d 914, 922 (1st Cir. 1991); United States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990). Severance is required only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Zafiro, 506 U.S. at 538. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. Zafiro, 506 U.S. at 538. Movant failed to demonstrate the kind of prejudice that warrants severance.
Moreover, even when some risk of prejudice exists, it can be cured with proper instructions. The Court presumes that juries follow their instructions. Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987). The trial court properly instructed the jury that the Government had the burden of proving beyond a reasonable doubt that each defendant committed the crime with which he was charged. The court then instructed the jury that it must give separate consideration to each individual defendant and to each separate charge against him. In addition, the trial court admonished the jury that arguments of counsel are not evidence. These instructions cured any possibility of prejudice to Movant's defense. See Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed.2d 921 (1960). Movant failed to prove counsel's performance was deficient and to show prejudice resulting from counsel's failure to seek severance.
D. Movant's Allegations Pursuant to Apprendi v. New Jersey
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Movant alleges the amount of drugs should have decided by the jury and proved beyond a reasonable doubt in accordance with Apprendi. The Court need not consider whether Apprendi would be applicable to Movant's case because Apprendi is not applicable on collateral review.
The Fifth Circuit Court of Appeals considered a strikingly similar situation in its decision in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). The question in Shunk was whether the United States Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) was barred from application on collateral review by the Teague doctrine. The United States Supreme Court held in Gaudin that the materiality of false statements prosecuted under 18 U.S.C. § 1001 was an element of the offense which had to be presented to and decided by a jury, rather than a judge. Gaudin, 515 U.S. at 510-11. The Fifth Circuit Court of Appeals rejected the Shunks' argument that Gaudin fit within the second Teague exception, noting that "one can easily envision a system of `ordered liberty' in which certain elements of the crime can or must be proved to a judge, not a jury." Shunk, 113 F.3d at 36. At least two other circuit courts have rejected retroactive application of Gaudin on collateral review. See Mandanici v. United States, 205 F.3d 519, 529-30 (2nd Cir.), cert. denied, 121 S.Ct. 190 (2000); see also United States v. Swindall, 107 F.3d 831, 836 (11th Cir. 1997).
Teague prohibits the application of new rules of criminal procedure on collateral review unless they meet one of two narrow exceptions. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The new rule is applicable only if it places certain kinds of conduct beyond the power of the government to proscribe or requires the observance of procedures that are "implicit in the concept of ordered liberty." Teague, 489 U.S. at 307.
Apprendi and Gaudin both involve a new rule that requires proving an element of a criminal offense to a jury, rather than a judge. Courts in two circuits have held that Apprendi is not applicable on collateral review. See United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000). A growing number of District Courts, including the United States District Court for the Northern District of Texas, have concluded that Apprendi is not retroactively applicable to cases on collateral review. See e.g., United States v. Winter, No. 3:96-CR-0326-P (N.D. Tex. Jan. 23, 2001) (Teague bars retroactive application of Apprendi to collateral review); United States v. Brown, 2000 WL 1880280 *4 (N.D. Tex. Dec. 28, 2000) (same); Klein v. United States, 125 F. Supp.2d 460 (D. Wyo. 2000); United States v. Gibbs, 125 F. Supp.2d 700 (E.D. Pa. 2000); Ware v. United States, 124 F. Supp.2d 590 (M.D. Tenn. 2000); United States v. Johnson, 126 F. Supp.2d 1222 (D. Neb. 2000); United States v. Joseph, 2000 WL 1789989 *2 (ED. La. Dec. 5, 2000) (same); West v. United States, 123 F. Supp.2d 845 (D. Md. 2000); United States v. Pittman, 120 F. Supp.2d 1263 (D. Ore. 2000); but see Darity v. United States, 124 F. Supp.2d 355 (W.D.N.C. 2000) (Apprendi decision announced new substantive rule to which Teague does not apply); United States v. Murphy, 109 F. Supp.2d 1059, 1064 (D. Minn. 2000) ( Apprendi falls within second Teague exception).
The teachings of Apprendi are barred by Teague from application on collateral review. Accordingly, to the extent Movant claims Apprendi is applicable in this case, his claim should be summarily denied.
RECOMMENDATION
Movant's request for evidentiary hearing should be DENIED . Movant's motion to vacate, set aside, or modify his conviction and sentence pursuant to 28 U.S.C. § 2255 should be DENIED .
APPENDIX B
U.S. v. PEREZ, (N.D.Tex. 2002)
UNITED STATES OF AMERICA v. THOMAS PEREZ No. 3:97-CR-342-M and No. 3:99-CV-2823-M U.S. District Court, Northern District, Dallas Division February 12, 2002
SUPPLEMENTAL FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE UPON RECOMMITMENT
PAUL D. STICKNEY, U.S. Magistrate Judge
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the United States District Court for the Northern District of Texas, Defendant's § 2255 motion has been recommitted to the United States Magistrate Judge for reconsideration of Defendant's claim pursuant to Apprendi v. New Jersey, in light of the decision of the Fifth Circuit Court of Appeals in United States v. Clark, 260 F.3d 382 (5th Cir. 2001). The supplemental findings, conclusions and recommendation of the Magistrate Judge address that issue.
530 U.S. 466, 490 (2000).
FINDINGS AND CONCLUSIONS
A jury convicted Movant of Conspiracy to Possess Controlled Substances in violation of 21 U.S.C. § 846, and the trial court sentenced him to 140 months of imprisonment, a five-year term of supervised release, and a special assessment of $100. Movant's conviction was affirmed by the United States Court of Appeals for the Fifth Circuit. Movant amended his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 to raise an Apprendi claim. He urged the amount of drugs should have been decided by the jury and proved beyond a reasonable doubt. The United States Supreme Court held in Apprendi that, with the exception of prior convictions, any fact that increases the penalty for a crime beyond the maximum statutory penalty must be submitted to the jury and proven beyond a reasonable doubt. Apprendi, 530 U.S. at 490.
In the July 11, 2001 Amended Findings, Conclusions and Recommendation in this case, this Court reasoned that because Movant's conviction became final before Apprendi was decided, he is precluded from raising it in this collateral attack on his sentence unless Apprendi is retroactive. The Court concluded that Apprendi announced a new rule of criminal procedure that is barred from retroactive application on collateral review by the doctrine of Teague v. Lane, 489 U.S. 288 (1989). In a July 26, 2001 decision, the Fifth Circuit Court of Appeals remanded the Clark case to the District Court to decide whether Apprendi applies retroactively in an initial § 2255 motion. United States v. Clark, 260 F.3d 382, 382 (5th Cir. 2001).
The United States Supreme Court has indicated that the Teague retroactivity decision is to be made as a "threshold matter" and should be addressed "before considering the merits of [a] claim." See, e.g., Penry v. Lynaugh, 492 U.S. 302, 329 (1989); Caspari v. Bohlen, 510 U.S. 383, 389 (1994); Lambrix v. Singletary, 520 U.S. 518, 524 (1997) (quoting Penry and Caspari).
Even if the Court reached the merits, Apprendi's only possible applicability would be to consider whether Movant would have been entitled to a reduction of two years in the period of supervised release to which the trial court sentenced him. The indictment in this case charged Movant with conspiracy to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841 (a)(1), and the jury found beyond a reasonable doubt that he violated this statute. The minimum statutory range for this offense was zero to twenty years. See 21 U.S.C. § 841 (a)(1). Movant's term of imprisonment is not greater than the maximum term allowable by statute when the amount of cocaine is not proved to the jury beyond a reasonable doubt; hence Apprendi would not be applicable to reduce Movant's term of imprisonment. Apprendi's only conceivable application might be to reduce Movant's term of supervised release by two years. See 21 U.S.C. § 841 (b)(1)(C); cf. 18 U.S.C. § 3583.
The Fifth Circuit has ruled that Apprendi cannot be applied retroactively to a successive § 2255 motion. In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). For a successive § 2255 motion to be entertained based upon a new rule of constitutional law, the United States Supreme Court must have made the new law retroactive on collateral review. See Tyler v. Cain, 121 S.Ct. 2478 (2001) where the Supreme Court stated:
The only way the Supreme Court can, by itself, "lay out and construct" a rule's retroactive effect, or "cause" that effect "to exist, occur, or appear," is through a holding. The Supreme Court does not "ma[k]e" a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower court (or perhaps by a combination of courts), not by the Supreme Court. (footnote omitted). We thus conclude that a new rule is not "made retroactive to cases on collateral review" unless the Supreme Court holds it to be retroactive. (footnote omitted).
121 S.Ct. at 2482. Because the instant case involves Movant's initial § 2255 motion, neither Tatum nor Tyler is dispositive.
In determining whether a new rule is retroactive, a court must first establish whether the rule is substantive or procedural in nature. Teague, 489 U.S. at 289. If the rule is substantive, then it applies retroactively. Davis v. United States, 417 U.S. 333, 346-47 (1974). If the rule is procedural, then its retroactive application is governed by the test set forth in Teague, 489 U.S. at 289. Judge Parker dissented from the Fifth Circuit's decision to remand Clark to the District Court. Judge Parker explained that he would treat Apprendi as a substantive rule that applies retroactively on collateral review. Clark, 260 F.3d at 383-389 (Parker, J. dissenting). The panel's decision in Clark does not suggest that the District Court reach a particular result, and to date, the Fifth Circuit has not decided whether Apprendi is retroactively applicable in an initial § 2255 motion. Clark, 260 F.3d at 383.
Movant contends the Court erred by considering an Apprendi error to be similar to the error the United States Supreme Court found in United States v. Gaudin, rather than the kind of fundamental error recognized in `8Cage v. Louisiana`6 and Victor v. Nebraska. In Cage, a direct appeal, the Supreme Court held that a reasonable doubt instruction violated the Due Process Clause because, when read "as a whole," it "equated a reasonable doubt with a "grave uncertainty" and an "actual substantial doubt," and stated that what was required was a "moral certainty" that the defendant was guilty. See Cage, 111 S.Ct. at 329. The Court found that the combination of these terms, given their common meaning, resulted in an instruction pursuant to which a reasonable juror could find guilt based on a lesser degree of proof than required by the Due Process Clause. See Cage, 111 S.Ct. at 330. The Supreme Court subsequently refined Cage but left its holding essentially intact in Estelle v. McGuire. It clarified that the standard for reviewing jury instructions in challenges to state criminal convictions is not whether an instruction could have been applied in an unconstitutional manner, as the Cage Court stated, but whether there is a "reasonable likelihood" that a jury in fact applied the challenged instruction unconstitutionally. See McGuire, 112 S.Ct. at 482 n. 4 (citations omitted). In Victor v. Nebraska, the Supreme Court upheld two other reasonable doubt instructions that contained some, but not all, of the three suspect phrases in Cage. Victor, 114 S.Ct. at 1242. The Court reasoned that the phrases "moral certainty" and "substantial doubt" did not impermissibly lower the government's burden of proof because the context of the instructions clarified the meaning of the terms as being congruent with reasonable doubt. See Victor, 114 S.Ct. at 1248, 1249-1251. In pre-AEDPA cases, the Fifth Circuit Court of Appeals held that Cage-Victor error falls within the second Teague exception and therefore applies retroactively on collateral review. See Humphrey v. Cain, 138 F.3d 552, 553 (5th Cir. 1998) ( en banc) [hereinafter Humphrey II], adopting reasoning of Humphrey v. Cain, 120 F.3d 526, 529 (5th Cir. 1997) [hereinafter Humphrey I]. The Humphrey I panel based this conclusion on the Supreme Court's opinion in Sullivan v. Louisiana, 508 U.S. 275 (1993), which held on direct appeal that Cage-Victor error was a "structural defect" and therefore not subject to harmless error analysis. See Humphrey I, 120 F.3d at 529. Because Sullivan found that conviction based on a constitutionally defective reasonable doubt instruction takes away a basic protection "without which a criminal trial cannot reliably serve its function," Humphrey I held that the second Teague exception applied to Cage-Victor error. See id. (citations omitted). However, the Fifth Circuit Court of Appeals has since declined to apply the Cage-Victor rule retroactively in a post-AEDPA petition brought pursuant to 28 U.S.C. § 2254. Williams v. Cain, 229 F.3d 468, 471 (5th Cir. 2000).
515 U.S. 506 (1995). In the Amended Findings, this Court noted that the decision of whether Apprendi is Teague-barred is similar to the question the Fifth Circuit Court of Appeals considered in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). The question in Shunk was whether the United States Supreme Court's decision in Gaudin was barred from application on collateral review by the Teague doctrine. The United States Supreme Court held in Gaudin that the materiality of false statements prosecuted under 18 U.S.C. § 1001 was an element of the offense which had to be presented to and decided by a jury, rather than a judge. Gaudin, 515 U.S. at 510-11. The Fifth Circuit Court of Appeals rejected the Shunks' argument that Gaudin fit within the second Teague exception, noting that "one can easily envision a system of `ordered liberty' in which certain elements of the crime can or must be proved to a judge, not a jury." Shunk, 113 F.3d at 36.
498 U.S. 39, 41 (1990) ( per curiam), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62 (1991).
511 U.S. 1 583 (1994). Movant also relies upon Cruz v. New York, 481 U.S. 186, 193 (1987), claiming that the error in his case is similar to that in Cruz. In Cruz, the Supreme Court held that a non-testifying co-defendant's confession generally is not admissible against another defendant because it presents a serious risk that the issue of guilt or innocence may not have been reliably determined. Here, the jury's failure to consider the exact quantity of drugs does not present a serious risk to the reliability of the verdict.
The instruction in Cage read in relevant part:
"If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. . . . It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty." Cage, 111 S.Ct. at 329 (emphasis in original).
On remand from the United States Supreme Court, the Louisiana Supreme Court found that the instructional error was harmless, and affirmed Cage's conviction and sentence. State v. Cage, 583 So.2d 1125 (La.), cent denied, 502 U.S. 874 (1991).
511 U.S. 1 (1994). Victor involved two cases, one on direct appeal and another on appeal from the denial of state habeas relief
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) heightened the standard of review for challenging state court convictions on habeas corpus review in federal court. See 28 U.S.C. § 2254 (d)(1). A person in custody pursuant to the judgment of a state court can no longer rely upon United States Supreme court cases decided after his conviction became final. See Williams v. Taylor, 529 U.S. 362 (2000).
The Second, Fourth, and Eleventh Circuits have also held, in pre-AEDPA cases, that Cage and Victor apply retroactively on habeas review. See Gaines v. Kelly, 202 F.3d 598, 605 (2d Cir. 2000) (citing Humphrey II with approval); Adams v. Aiken, 41 F.3d 175, 179 (4th Cir. 1994), cert. denied, 515 U.S. 1124, 115 S.Ct. 2281, 132 L.Ed.2d 284 (1995); Nutter v. White, 39 F.3d 1154, 1157-58 (11th Cir. 1994).
Both Humphrey opinions were careful to point out that they did not consider what effect, if any, AEDPA might have on the continued retroactivity of the Cage- Victor rule. See Humphrey II, 138 F.3d at 553 n. 1; Humphrey I, 120 F.3d at 529. The Humphrey I panel noted that a finding that Cage and Victor apply retroactively on collateral review might not have a very significant impact in a post-AEDPA regime because AEDPA's "new barriers," such as the one-year statute of limitations, restrictions on successive petitions, and heightened standard of review under section 2254(d)(1), might "shut out future petitioners in Humphrey's situation." See Humphrey I, 120 F.3d at 529. It added that "[o]f course, we do not have occasion to measure how high those bafflers might be." Id.
The United States Supreme Court recognized in Teague that the "[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system." Teague, 489 U.S. at 309 (plurality opinion) (citing Friendly, Is INNOCENCE IRRELEVANT? COLLATERAL ATTACKS ON CRIMINAL ON CRIMINAL JUDGMENTS, 38 U. Chi. L. Rev. 12, 150 (1970)). To fall within the second Teague exception, a new rule must satisfy a two-pronged test: (1) it must relate to the accuracy of the conviction; and (2) it must alter a court's understanding of the "bedrock procedural elements" that are essential to the fundamental fairness of the proceeding. Sawyer v. Smith, 497 U.S. 227, 241 (1990). In this case, the jury instruction, unlike that in Cage-Victor, was not confusing and misleading. No danger existed here that the instruction would cause the jury to convict an innocent person of conspiring to possess cocaine with the intent to distribute it. The Court is not persuaded that the trial court's failure to instruct the jury to find the exact quantity of drugs beyond a reasonable doubt affected the accuracy of the conviction. Nor is the Court convinced that the error meets the second prong of the Teague exception for watershed rules of criminal procedure that would render a defendant's trial fundamentally unfair.
The Court is not convinced that Apprendi announced a rule of substantive law. Neither the United States Supreme Court nor any circuit court has held Apprendi's rule to be substantive. Rather, the circuit courts who have considered Apprendi's applicability on collateral review have held that Apprendi announced a new rule of criminal procedure which is Teague-barred from retroactive application on collateral review. See, e.g., McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001) (holding that the new rule of criminal procedure announced by the United States Supreme Court in Apprendi does not fall within either exception to Teague's non-retroactivity standard and, therefore, concluding that Apprendi does not apply retroactively on initial collateral review); Dukes v. United States, 255 F.3d 912, 913 (8th Cir. 2001) (holding Apprendi presented a new rule of constitutional law that was not of "watershed" magnitude and thus a federal prisoner could not raise an Apprendi claim on collateral review); United States v. Moss, 252 F.3d 993, 997 (8th Cir.), cert. denied, 122 S.Ct. 848 (2001) (relying on the Teague bar); Jarrett v. United States, 266 F.3d 789, 791 (8th Cir. 2001) (holding the general rule of nonretroactivity in Teague conclusively bars a petitioner whose conviction became final before Apprendi from raising an Apprendi claim in an initial § 2255 petition); United States v. Sanders, 247 F.3d 139, 146 (4th Cir.), cert denied, 122 S.Ct. 573 (2001) (holding the Apprendi decision does not rise to the level of a watershed rule of criminal procedure and thus does not come within an exception to the Teague rule barring retroactive application of a new rule of criminal procedure); Burch v. Corcoran, 273 F.3d 577, 584 (4th Cir. 2001) (same); Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000) (invoking the Teague bar in declining to apply Apprendi to a case in which the petitioner complained of discrepancies between an information and the jury instructions).
The overwhelming majority of district courts, including the Northern District of Texas, have held, both pre- Clark and post- Clark, that Apprendi announced a new rule of criminal procedure that is not of watershed magnitude and that is Teague-barred from retroactive application in an initial motion brought pursuant to 28 U.S.C. § 2255. See, e.g., United States v. Lovell, Nos. 3-98-CR-0344-R, 3-00-CV-1866-R, 2001 WL 1076124 (N.D.Tex. September 10, 2001) (noting that Clark does not dictate a particular result and holding that Teague bars collateral review of Apprendi claims); United States v. McNairy, Nos. 3:99-CR-364-P, 3:01-CV-0355-P, 2001 WL 649684, at *3 (N.D. Tex. June 8, 2001) (citing cases holding that Teague bars collateral review of Apprendi claims); United States v. Jones, Nos. 3-98-CR-0303-P, 3-01-CV-0050-P, 2001 WL 493171, at *2 (N.D.Tex. May 8, 2001) (same). Neither Movant's objection nor the Fifth Circuit Court of Appeal's decision in Clark provides any reason for this Court to alter its Amended Findings, Conclusions and Recommendation entered July 11, 2001.
RECOMMENDATION
After further consideration of Movant's Apprendi claim in light of his objections and the Clark decision, the Court recommends that the District Court adopt its July 11, 2001 Amended Findings, Conclusions, and Recommendation and these Supplemental Findings, Conclusions and Recommendation with respect to Petitioner's § 2255 motion and deny the requested relief.
APPENDIX C
U.S. v. PEREZ, (N.D.Tex. 2002)
UNITED STATES OF AMERICA v. THOMAS PEREZ No. 3:97-CR-342-M and No. 3:99-CV-2823-M U.S. District Court, Northern District, Dallas Division March 5, 2002
ORDER ACCEPTING AMENDED AND SUPPLEMENTAL FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BARBARA LYNN U.S. District Judge
United States Magistrate Judge Paul D. Stickney made Amended and Supplemental Findings, Conclusions and a Recommendation in this case. Objections were filed, and the District Court has made a de novo review of those portions of the proposed amended and supplemental findings, conclusions and recommendations to which objection was made and reviewed the pleadings. The objections are overruled and the Court accepts the Amended Findings, Conclusions and Recommendation of the United States Magistrate Judge and the Supplemental Findings, Conclusions and Recommendation of the United States Magistrate Judge.
Therefore, no evidentiary hearing is required, and the motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is denied.
SO ORDERED