Opinion
Criminal No. 98-0061-RV, Civil Case No. 00-1076-AH-C
May 9, 2001
ORDER
This matter is before the Court on Defendant/Petitioner's "Motion to Correct, Set Aside or Vacate Judgment" pursuant to 28 U.S.C. § 2255 (Doc. 116), Defendant's two SEALED MOTIONS (Docs. 118, 119) and Defendant's Motion for "Leave to File Supplement to 2255" (Doc. 120). The Government has filed its response to all of these Motions.
Turning first to Petitioner's section 2255 Motion (Doc. 116), the Court agrees with the Government's response (Doc. 122) that Petitioner a) makes a claim under Apprendi v. New Jersey, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); b) claims that there was an illegal stop and seizure; c) claims that an investigation of a police officer affected his case, and d) claims that he is entitled to a downward departure based on cooperation. The Court further agrees with the Government that Petitioner's claims are not cognizable on collateral attack, as 28 U.S.C. § 2255 only allows an attack on a sentence if (1) it was imposed in violation of the Constitution or the laws of the United States; 2) it was imposed without jurisdiction; 3) it was imposed in excess of the maximum authority authorized by law; or (4) it is otherwise subject to collateral attack. Even without said bar, however, Petitioner's claims would fail, as they are without merit.
As to his Apprendi claim, Petitioner seems not to have been aware that multiple courts, including the Eleventh Circuit, have held that the Apprendi decision is not applicable retroactively to cases on collateral review. See, e.g., In Re Joshua, 224 F.3d 1281 (11th Cir. 2000). As Petitioner misunderstands the limited reach of Apprendi, a short discussion of the holding of that case is in order.
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 multi-part 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.
Though the Court has serious doubts that Petitioner's facts place him within the holding of Apprendi, the Court need not decide this issue since the Eleventh Circuit, as referenced above 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)).
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). Accordingly, Petitioner's Apprendi claim is without merit, as his claims have all been present in the context of a collateral attack on sentence.
As to Petitioner's Stop and Seizure claim, the Government correctly notes that claims not raised previously, although previously available, are barred by procedural default absent a showing of cause and actual prejudice. See, e.g., Reece v. U.S., 119 F.3d 1462 (11th Cir. 1997) This is the first instance that the Court is aware of where Petitioner has claimed that his stop and subsequent arrest was illegal. Petitioner's attempt to rely on the case of Florida v. J.L., 529 U.S. 266 (2000), for the proposition that that case created a new Constitutional right, must also fail, for even if J.L. could be interpreted as having declared a newly recognized Constitutional right, that right has not been made retroactive. See United States v. Bynum, 125 F. Supp.2d 772 (E.D.V.A. 2000).
Defendant's third claim within his section 2255 petition must also fail, for the simple reason that there has been no evidence presented to the Court which would justify the extraordinary relief of granting Defendant a new trial. Defendant's vague allegations that a certain former Police Officer Stuckey, who had participated at some point between Defendant's arrest and eventual conviction, may have exercised an improper influence in Defendant's case is simply not supported by any credible evidence. The fact that former Officer Stuckey had been the subject of an official investigation does not by itself lead to the conclusion that anything improper happened in Defendant's case. Should Defendant be able to produce credible, substantive evidence and/or a series of links between some alleged impropriety and his conviction, the Court will naturally follow such links to their natural and logical conclusions, in order to determine if Petitioner suffered any legal detriment thereby. Merely stating, however, that Petitioner is unable, at this time, to determine what impact, If any, "Stuckey's alleged misconduct may have had in regard to the matter of Arthur Woods arrest, investigation, prosecution, and conviction" (Petitioner's Brief p. 33) is insufficient as a matter of law to serve as a basis for this Court altering or amending any portion of Defendant's sentence or conviction.
Defendant's fourth `ground' asserted as the basis for relief under section 2255 is his claim that he has provided substantial assistance and that the Government has not filed a Motion for Reduction of Sentence per Rule 35 of the Federal Rules of Criminal Procedure. This contention is also elaborated upon in one of the two Motions filed under seal, titled "Motion Which Includes Movant's Ground Four in Support of 28 U.S.C. § 2255 Relief Being Filed Under Seal" (Doc. 119 [ sealed]). Without elaborating on the factual details of this sealed Motion, the Court notes that the Government has responded that, in its evaluation, Petitioner "has not provided substantial assistance in the prosecution of another person[, I" and that this evaluation "is not based on a dispute over a time limit nor is it made in bad faith." (Doc. 126). The Government informs the Court that Petitioner has not provided any such assistance, and provides a letter from Assistant United States Attorney Deborah Griffin in support. The decision of whether to request a downward departure is solely within the province of the Government, so long as that determination is made in good faith. As no Rule 35 motion has been offered, and no evidence has been offered to show that the Government has acted in bad faith, the Government is correct that this Court cannot authorize a downward departure of sentence on the basis of substantial assistance. This final contention in Petitioner's section 2255 therefore also must fail.
Given that the arguments offered by Petitioner in his Motion brought pursuant to 28 U.S.C. § 2255 (Doc. 116) are without merit, that Motion, as well as Defendant's Sealed Motion in support thereof (Doc. 119), are hereby DENIED.
Regarding Petitioner's Motion for Leave to File Supplement to 2255 (Doc. 120), the Government notes that Fed.R.Civ.P. 15(c) may allow amendment of the pleading if it relates back to a timely claim in the original petition (citing United States v. Davenport, 217 F.3d 1341 (11th Cir. 2000). As no proposed supplement has been filed, however, the Court is unable to grant the Motion. Thus, while not deciding the merits of such a motion if or when it comes before the Court, Petitioner's catch-all and open-ended Motion for Leave to File is hereby DENIED.
As for Defendant's final Motion before the Court, the Government has offered no objection to this "Motion Requesting Leave of Court to file Argument Relating to Ground Four of Woods 2255 Under Seal." This Motion, which was itself filed under seal (Doc. 118 [ sealed]), is therefore GRANTED. As a final matter, though the issue is not present in a separate Motion, the Court agrees with the Government that Petitioner has not met his burden of establishing the need for an evidentiary hearing for these matters, and thus declines to conduct such a hearing. See Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir. 1984) ( en banc), cert. denied, 469 U.S. 874 (1984). SO ORDERED.