Opinion
Case No. 01-3066-JWL, 98-20040-JWL
August 6, 2001
MEMORANDUM AND ORDER
Pursuant to 28 U.S.C. § 2255, Michael Cook filed a motion to vacate, set aside or correct his sentence (Doc. 99). Mr. Cook argues that he was convicted and sentenced in violation of due process and his right to a jury trial as described in Apprendi v. New Jersey, 530 U.S. 466 (2000). He also argues his conviction under 21 U.S.C. § 841 (a) was unconstitutional because he was convicted without proof at trial that the crime charged substantially affected interstate commerce. Finally, Mr. Cook argues that 18 U.S.C. § 922 (g) exceeds the scope of the Commerce Clause and that his conviction is invalid because the government did not prove that the defendant's individual possession of a firearm was in or affecting interstate commerce. Mr. Cook did not raise these arguments at trial or on direct appeal and, therefore, he is precluded from now raising them on collateral review because he has not demonstrated cause and prejudice. Mr. Cook's arguments also fail on the merits.
I. Cause and Prejudice
Mr. Cook did not raise at trial or on appeal any of the arguments that he now makes in his section 2255 motion. See 1999 WL 1244476 (10th Cir. Dec. 20, 1999); 1999 WL 155964 (D. Kan. Jan. 4, 1999). Consequently, he is procedurally barred from raising these arguments in his section 2255 motion unless he can show cause and prejudice. United States v. Frady, 456 U.S. 152, 167 (1982); Hines v. United States, 971 F.2d 506, 507-08 (10th Cir. 1992). To obtain collateral relief, Mr. Cook must show both "cause" excusing his procedural default and "actual prejudice" resulting from the errors of which he complains. Frady, 456 U.S. at 167-68; Hines, 971 F.2d at 507-08 (holding that the Frady test "applies if a § 2255 movant has failed to raise an issue on direct appeal, regardless of whether the movant made a contemporaneous objection to the alleged error at trial."). Mr. Cook did not file a reply and, therefore, did not respond to the government's argument that he was barred from making these arguments for failure to show cause and prejudice.
Mr. Cook presumably did not raise an Apprendi argument at trial or on direct appeal because Apprendi was not yet decided and controlling precedent rejected the idea that a jury must determine the type and quantity of drugs involved in a crime. United States v. Jones, 194 F.3d 1178, 1183-84 (10th Cir. 1999); McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986). The Supreme Court, however, explained in Engle v. Isaac, 456 U.S. 107, 130 (1982), that the futility of an argument in the face of controlling precedent does not necessarily constitute "cause." The court held that the petitioner's decision to "withhold a known constitutional claim" at the state court level, because of controlling precedent, precluded him from raising the argument on appeal to the Supreme Court. Id. Several circuits have applied this rationale to Apprendi. In United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001), the Seventh Circuit held that because defendants have been "making Apprendi-like arguments ever since the Sentencing Guidelines came into being," the failure to raise such an argument in the face of precedent did not amount to cause. The court explained that cause "means some impediment" and not merely precedent rejecting the argument. Id. The Fourth Circuit agreed with this rationale in United States v. Sanders, 247 F.3d 139, 145 (4th Cir. 2001), and further explained:
Adopting petitioner's view of novelty as a cause for procedural default would invite criminal defendants to bypass the preferred procedural avenue of trial and direct appeal in favor of collateral review. Collateral review would come in turn to serve as an all-purpose receptacle for claims which in hindsight appear more promising than they did at the time of trial.
This court is persuaded that the Tenth Circuit would also hold that controlling precedent rejecting the argument that a jury must find the type and quantity of drugs involved in a crime does not amount to "cause" for failing to raise the argument at trial or on appeal. The defendant, therefore, is barred from raising an Apprendi argument in his section 2255 motion because he does not show "cause" for his failure to previously raise the argument. George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995).
The defendant also did not attempt to show cause and prejudice with regard to his arguments that the prosecution failed to prove that his acts in violation of section 841(a) substantially affected interstate commerce, that section 922(g) exceeds the scope of the Commerce Clause and that his conviction under section 922(g) is invalid because the government did not prove that the defendant's individual possession of a firearm was in or affecting interstate commerce. Like his Apprendi argument, controlling precedent rejected these arguments at the time of his trial and on appeal. Also like his Apprendi argument, this court is persuaded that the Tenth Circuit would hold that the defendant's failure to raise these arguments in the face of controlling precedent to the contrary does not constitute "cause." The argument that Congress exceeded the scope of the Commerce Clause in enacting section 841(a) was frequently presented to courts prior to the defendant's conviction in 1999. See, e.g., United States v. Wacker, 72 F.3d 1453, 1474 (10th Cir. 1995). The same is true of the arguments that section 922(g) exceeds the scope of the Commerce Clause and that section 922(g) requires proof that a defendant's individual possession affects interstate commerce. See, e.g., United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995); United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir. 1996). Because the defendant has not shown some impediment to his raising the arguments, the defendant is barred from raising the arguments on collateral review. George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995).
H. The merits
Even if Mr. Cook could show cause and prejudice, his arguments fail on the merits.
A. Apprendi
The rule announced in Apprendi is a procedural rule that dictates what fact-finding procedure must be employed to have a fair trial. New procedural rules of constitutional law are not retroactively applicable on collateral review unless they meet one of two exceptions set out in Teague v. Lane, 489 U.S. 288 (1989). United States v. Browning, 241 F.3d 1262, 1264 (10th Cir. 2001) ("If the basis for relief depends on a new rule of constitutional law announced after the conviction became final, consideration of the [2255] motion proceeds under the analytical framework established by the Supreme Court in Teague."). As this court has explained before, it is persuaded that the Tenth Circuit would hold that the rule announced in Apprendi does not meet either of the two Teague exceptions. See Collins v. United States, 2001 WL 669058 (D. Kan. June 11, 2001); United States v. Garcia, 2001 WL 579817 (D. Kan. May 23, 2001). The rule, therefore, is not applicable to cases on collateral review and Mr. Cook is not entitled to relief even if he shows an Apprendi violation.
B. Section 841(a) conviction
The defendant argues that his conviction under 21 U.S.C. § 841 (a) was unconstitutional because he was convicted without proof at trial that the crime charged substantially affected interstate commerce. A conviction under section 841(a) does not require proof that the crime substantially affected interstate commerce. 21 U.S.C. § 841 (a). The Tenth Circuit has held that the statute is constitutional because drug crimes substantially affect interstate commerce. In United States v. Wacker, 72 F.3d 1453, 1474 (10th Cir. 1995), the Tenth Circuit reconsidered its earlier holding that 21 U.S.C. § 841 (a)(1) is constitutional in light of the Supreme Court decision in United States v. Lopez, 514 U.S. 549 (1995). In Lopez, the Supreme Court struck down the Gun-Free School Act on the grounds that "possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at 657. The Tenth Circuit held in Wacker that, unlike the law struck down in Lopez, "the conduct regulated by the Drug Act clearly implicates interstate commerce, and Congress made explicit findings explaining the conduct's `substantial and direct effect upon interstate commerce.' 21 U.S.C. § 801(3)-(6)." Other courts to address the issue have reached the same conclusion. United States v. D'Armond, 65 F. Supp. 1189, 1197 (D. Kan. 1999) ("this court as well as every other federal court, including the Tenth Circuit, considers the defendant's challenge to this court's jurisdiction and the constitutionality of federal drug trafficking laws to be completely frivolous.").
The defendant incorrectly assumes that the government must prove in every criminal trial that it has authority under the Constitution to criminalize the conduct in issue. Due process does not entitle a defendant to proof beyond a reasonable doubt of the government's authority to criminalize the relevant conduct, but to proof beyond a reasonable doubt of the elements of the crime as defined by Congress. In re Winship, 397 U.S. 358, 364 (1970). The authority of Congress to criminalize the conduct described in section 841(a) has been upheld by the courts, Wacker, 72 F.3d at 1474, and the prosecution need not rehash the subject at each section 841(a) trial.
The defendant also argues that the congressional declaration in 21 U.S.C. § 801, finding that drug crimes substantially affect interstate commerce, violates the prohibition against bills of attainder. A bill of attainder is "`a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.'" Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 846-47 (1984). The defendant's argument that section 801 is a bill of attainder is frivolous. Section 801 neither determines guilt nor inflicts punishment upon an identifiable individual or group. Neither does section 841(a); it merely prohibits conduct by all persons. The defendant's argument seems to be that a congressional finding that drugs affect interstate commerce relieves the government of a duty to prove an essential element of the offense for which he was convicted. As explained above, the nexus between section 841(a) and the Commerce Clause is not an essential element of the crime and the courts have upheld the authority of Congress to criminalize the conduct described in section 841(a).
C. Section 922(g) conviction
The defendant argues that 21 U.S.C. § 922 (g) is unconstitutional because there is an insufficient nexus to interstate commerce and cites United States v. Lopez, 514 U.S. 549 (1995) for support. The Tenth Circuit has already rejected such a challenge to section 922(g), United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995), and this court is bound by that decision. The defendant argues, in the alternative, that the government proved at his trial that the firearm had been transported in interstate commerce and the statute requires, instead, that the government prove that the defendant's individual possession was in or affecting interstate commerce. The Tenth Circuit has also rejected this argument. United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir. 1996). Proof that the firearm, at some point, traveled in interstate commerce is sufficient to satisfy the jurisdictional element of section 922(g). Id.
IT IS THEREFORE ORDERED BY THE COURT that defendant's motion to vacate, set aside, or correct his sentence (Doc. 99) is denied.
IT IS SO ORDERED.