CA. No.: 2:01-2486, CR No.: 96-806
January 24, 2002
This matter is before the court on Sebastian Gomez's motion filed pursuant to 18 U.S.C. § 3231; Fed.R.Crim.P. 12(b)(2), and Fed.R.Civ.P. 60(B)(4) and (6). No matter how Gomez attempts to characterize his motion, because Gomez seeks to vacate, set aside, or correct his sentence, his motion can only be construed as a motion pursuant to 28 U.S.C. § 2255. The Government has moved for Summary Judgment, and dismissal of Gomez's motion on the grounds that (1) Gomez waived all rights to seek relief pursuant to 28 U.S.C. § 2255 in his Addendum to the Plea Agreement; (2) this Court lacks jurisdiction to hear Gomez's motion because it is a successive motion under § 2255 and Gomez has not presented a certificate of appealability; (3) this Court lacks jurisdiction to hear this motion because it was filed outside the time limits of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA); (4) the Fourth Circuit Court of Appeals has held that the rule of Apprendi v. New Jersey. 530 U.S. 466 (2000), is not retroactive on collateral review; and (5) Apprendi does not apply because Gomez's sentence does not exceed the statutory maximums for his offenses.
The Grand Jury issued a twenty-five count indictment charging four defendants with violations of anti-slavery statutes and related violations for holding a number of migrant workers in servitude. Gomez was charged in seventeen counts. Count 1 charged Gomez with conspiracy to hold migrant farm workers in involuntary servitude, in violation of 18 U.S.C. § 1584; to use extortionate means to collect and attempt to collect on extensions of credit, in violation of 18 U.S.C. § 894; to transport illegal aliens within the United States in violation of 8 U.S.C. § 1324 (a)(1)(B); to harbor migrant workers knowing or in reckless disregard for their status as illegal aliens, in violation of 8 U.S.C. § 1324 (a)(1)(C); to transport migrant workers in dangerous conditions, in violation of 29 U.S.C. § 1841 (b)(1)(A) and 1851, and a violation of 18 U.S.C. § 371. Counts 2-7 charged involuntary servitude, in violation of 18 U.S.C. § 1584 and 18 U.S.C. § 2. Counts 8-13 charged collection of an extension of credit by extortionate means, in violation of 18 U.S.C. § 894 (a)(1) and (2) and 18 U.S.C. § 2. Count 14 charged Gomez with using and carrying a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924 (c)(2). Count 21 alleged that Gomez harbored certain aliens, in violation of 8 U.S.C. § 1324 (a)(1)(C). Count 24 charged Gomez with re-entry into the United States after deportation, in violation of 8 U.S.C. § 1326 (a)(1). Count 25 charged Gomez with being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(5).
Gomez pleaded guilty to Counts 1, 2-7, 8-13, and 21 on May 7, 1997. On November 18, 1997, an Addendum to Plea Agreement was filed. In this Addendum Gomez waived his right to appeal, to habeas corpus, and to any relief pursuant to 28 U.S.C. § 2255. On December 8, 1997, this court sentenced Gomez to a total of 180 months of incarceration, followed by three years of supervised release.
Over two years after judgment, on February 14, 2000, Gomez moved to withdraw his guilty plea. On July 10, 2000, Gomez filed a motion for summary judgment on his motion to withdraw his plea. This court filed an order denying the motion on October 11, 2000. Gomez appealed, and the Fourth Circuit Court of Appeals affirmed in part and dismissed in part. The Fourth Circuit also denied a certificate of appealability as to Gomez's claims sounding in habeas. The Supreme Court denied Gomez's petition for certiorari on April 5, 2001.
On June 5, 2001, Gomez filed the instant motion to vacate, correct, or set aside his sentence. The Government moved to dismiss on the basis that Gomez's motion is time-barred. On September 12, 2001, this court denied the motion and ordered the Government to respond.
FACTUAL HISTORY OF THE OFFENSES
Miguel Flores (Flores), a co-defendant, operated agricultural enterprises from the late 1980's through the fall of 1996. Gomez was Flores's primary assistant. Two other co-defendants worked as recruiters and transporters. Workers from impoverished backgrounds, who had little education and spoke little English, were recruited from Mexico.
The workers were held in several secluded labor camps in South Carolina. The defendants extended credit to the workers by charging fees for transportation which they deducted from the workers' weekly pay. The migrant farm workers were held in involuntary servitude and the defendants dampened resistance by threatening harm for attempting to escape and by publicly beating two workers.
In the summer of 1992, Flores modified vehicles to smuggle aliens into the United States. The vehicles did not meet safety standards. During the two or three-day ride, workers were not permitted to leave the van to eat or use a restroom. Arriving in South Carolina, the migrant workers learned that they had to work for Flores until they paid off their smuggling fees through deductions from their pay. Gomez threatened the workers by telling them anyone attempting to leave would be chased and killed.
On June 19, 1992, in front of other migrant workers, Gomez, Flores, and others beat a man as punishment and struck another man in the head with a pistol when the second man attempted to intervene. Gomez and Flores also fired weapons in the compound and brandished their weapons in conjunction with verbal threats.
Gomez's motion pursuant to 28 U.S.C. § 2255 is not properly before this court. In an Addendum to Plea Agreement filed on November 18, 1997, Gomez waived his right to appeal, to habeas corpus, and to any relief pursuant to 28 U.S.C. § 2255. This court has noted that Gomez is procedurally barred from either appeal or a motion under § 2255 in its Order filed October 11, 2000.
The court's prior legal determination that Gomez is procedurally barred from seeking relief pursuant to § 2255 is binding. The black letter rule is that a legal decision made at one stage of a case, which is unchallenged in a subsequent appeal despite the existence of the opportunity to do so, becomes the law of the case for future stages of the same litigation, and the aggrieved party has forfeited any right to challenge that particular decision at a subsequent date. United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993) (citing Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987). Gomez therefore is procedurally barred and his motion must be dismissed.
This court also lacks jurisdiction to hear Gomez's motion because it is a successive motion pursuant to 28 U.S.C. § 2255, and Gomez has presented no certificate of appealability. In Gomez's motion of February 14, 2000 and the motion for summary judgment on his motion to withdraw his plea, Gomez alleged ineffective assistance of counsel and an inability to understand the proceedings, both of which were collateral attacks on his sentence. Gomez also raised substantially the sameApprendi arguments that he now raises in his current motion: that the court lacked jurisdiction to increase his sentence based on enhancements not stated in the indictment; and that his base offense level should not exceed twenty. This court denied Gomez's motion on October 11, 2000. Gomez appealed, and the Fourth Circuit Court of Appeals affirmed in part and dismissed in part. United States v. Gomez, No. 00-7544, 2001 WL 77042 (4th Cir. Jan. 30, 2001). The Fourth Circuit also denied a certificate of appealability as to Gomez's claims sounding in habeas. The Supreme Court denied Gomez's petition for certiorari on April 5, 2001.
Before a prisoner can file a second or successive § 2255 motion, he must first obtain authorization from the appropriate circuit court pursuant to 28 U.S.C. § 2244. Section 2244 states:
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing, the district court to consider the application.28 U.S.C. § 2244 (b)(3)(A) (West 2001).
Because Gomez failed to obtain such authorization before filing this second motion, this court must deny his motion. In the absence of authorization from the Fourth Circuit to file the motion in the district court, this court is without jurisdiction to consider it. See In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (noting defendant must seek permission from circuit court to file successive motion under § 2255).
As noted above the Fourth Circuit has previously denied Gomez a certificate of appealability as to his claims sounding in habeas and pursuant to Apprendi. In the absence of such certificate, this Court lacks jurisdiction to hear Gomez's motion.
Even if Gomez had not waived his right to seek relief under § 2255, and even if this were not a successive motion in the absence of a certificate of appealability this court lacks jurisdiction to hear Gomez's motion because Gomez filed it outside the time limit of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). For an initial motion, the AEDPA provides for a one-year period of limitation to file actions based on § 2255. The limitation runs 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. § 2255 (West 2001).
Gomez pleaded guilty on May 7, 1997, and was sentenced on December 8, 1997. Pursuant to the plain language of paragraph (1) quoted above, even if Gomez's motion were an initial motion, it would be time-barred.
Even if Gomez had not waived his right to seek relief under § 2255, even if this were not a successive motion in the absence of a certificate of appealability, and even if this motion were not time-barred, Gomez is not entitled to relief under Apprendi v. New Jersey. 530 U.S. 466 (2000). The Fourth Circuit has held that the rule of Apprendi is not retroactive on collateral review. See United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001). Neither has the Supreme Court made Apprendi apply retroactively to cases on collateral review.
In Apprendi, the Supreme Court held 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. 530 U.S. at 490. In Sanders, the Fourth Circuit unequivocally held that the rule of Teague v. Lane, 489 U.S. 288 (1989), barred retroactive application of Apprendi and rejected Sanders' petition on that basis. Sanders, 247 F.3d at 146-50. The Sanders court stated that Apprendi "constitutes a procedural rule" and rejected the idea that the rule of Apprendi is a "watershed" rule.Id. at 147, 150, 151.
The defendant in Sanders sought relief on an initial petition to vacate his sentence, and was, like Gomez, time-barred. Both Sanders and Gomez procedurally defaulted the issue by failing to argue at sentencing or on appeal that an indictment must charge and a jury must determine beyond a reasonable doubt any facts that may increase the penalty for a crime beyond the prescribed statutory maximum. See Sanders, 247 F.3d at 144. The Fourth Circuit held that Sanders could not "challenge his conviction on the basis of any Apprendi error" because "the rule does not apply retroactively on collateral review." Id. at 151.
The Sanders court found that the rule of Apprendi did not de-criminalize the conduct for which Sanders was charged, thus failing to meet the first narrow exception of Teague Sanders, 247 F.3d at 148. Second, because the rule "merely shifts the fact-finding duties from an impartial judge to a jury," it clearly does not fall within the scope of the second Teague exception. (citing Neder v. United States, 527 U.S. 1 (1999)). As the Fourth Circuit held in Sanders, because the rule of Apprendi is a procedural rule it does not apply retroactively on collateral review.
Similarly, the Eleventh Circuit recently held that Apprendi is not retroactive on initial collateral review. See McCoy v. United States, No. 00-16434, 2001 WL 1131653 (11th Cir. Sept. 25, 2001). The court held that the defendant's Apprendi claims were not jurisdictional and were barred by the non-retroactivity standard of Teague v. Lane. Id. at *1. The court found that Apprendi errors are errors in criminal procedure that do not invalidate the conviction, but at most affect the permissible sentence. Id. at *5.
Gomez's Apprendi claim fails because Apprendi has not been made retroactive to cases on collateral review. The Fourth Circuit has held "that a new rule of constitutional law has been made retroactive to cases on collateral review by the Supreme Court within the meaning of § 2255 only when the Supreme Court declares the collateral availability of the rule in question, either by explicitly so stating or by applying the rule in a collateral proceeding." In re Vial, 115 F.3d 1192, 1197 (4th Cir. 1997). Because the Supreme Court has neither explicitly stated thatApprendi applies retroactively on collateral review nor applied the rule retroactively in a collateral proceeding, Gomez is not entitled to file a § 2255 motion based on Apprendi.
In addition, most courts have held that Apprendi is not retroactive on second or successive motions pursuant to § 2255. See Rodgers v. United States, 229 F.3d 704, 05-06 (8th Cir. 2000) (finding language of the statute precludes retroactive application of Apprendi in a successive § 2255 application without the authority of the Supreme Court);Talbott v. Indiana. 226 F.3d 866, 868-69 (7th Cir. 2000) (finding Supreme Court has not made Apprendi retroactive on successive motions under § 2255); Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000) (holding that non-retroactivity rule of Teague v. Lane 489 U.S. 288 (1989) barred retroactive application of Apprendi to § 2254 petition). See also Hernandez v. United States, 226 F.3d 839, 840 (7th Cir. 2000); In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000);Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000), cert denied, 121 S.Ct. 1364 (2001).
Even if Gomez had not waived his right to seek relief under § 2255, even if this were not a successive motion in the absence of a certificate of appealability, even if this motion were not time-barred, even if the rule of Apprendi were retroactive on collateral review, and even if the Fourth Circuit had not already rejected the Apprendi based arguments by Gomez, Gomez could not succeed because he cannot demonstrate any Apprendi error, nor any prejudice from any alleged Apprendi error. Gomez appears to argue that because the district court applied enhancements to his sentence for his role in the offense, Apprendi has been violated. On the contrary, a sentencing court may take "into consideration various factors relating to both offense and offender in imposing a judgment within the range prescribed by statute." Apprendi, 530 U.S. at 481. "If the district court's factual findings did not result in an enhancement that exceeded that maximum, Apprendi is irrelevant."United States v. Kinter, 235 F.3d 192, 199 (4th Cir. 2000), cert. denied, 121 S.Ct. 1393 (2001).
This court sentenced Gomez to concurrent sentences for a total of 180 months of imprisonment. Gomez's sentences on each of the counts to which he pleaded guilty did not exceed the statutory maximums for each of those offenses. The statutory maximum on each of Counts 8, 9, 10, 11, 12, and 13 was twenty years, pursuant to 18 U.S.C. § 894. Gomez pleaded to those counts, and the court sentenced him to 180 months as to each. The statutory maximum for Count I was five years, under 18 U.S.C. § 371, and Gomez was sentenced to sixty months. The statutory maximum on each of Counts 2, 3, 4, 5, 6, and 7 pursuant to 18 U.S.C. § 1584 was five years. Gomez received sixty months on each. The statutory maximum for Count 21 was five years under 8 U.S.C. § 1324 (a)(1)(C), and Gomez was sentenced to twelve months. Clearly, Gomez's total sentence of fifteen years and his sentence on each individual count did not exceed the statutory maximum for each of the offenses to which he pleaded guilty.
Gomez's Apprendi argument has no merit. No Apprendi violation occurs where the sentence imposed does not exceed the statutorily prescribed maximum penalty. United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc). The Fourth Circuit has held that Apprendi does not require the Government to submit to a jury and prove beyond a reasonable doubt facts underlying sentence enhancements that increase the guideline range, but do not increase the statutory maximum sentence. Kinter, 235 F.3d at 201-02. The Fourth Circuit has held that the relevant maximum sentence is the statutory maximum, not the maximum sentence under the guidelines. Id. at 201.
For the foregoing reasons, Gomez's motion is DENIED and summary judgment is GRANTED in favor of the Government.