Opinion
No. 01 CV 5617 (SJ).
February 12, 2005
IRVING ANOLIK, New York, NY, By: Irving Anolik Attorney for Petitioner.
ROSLYNN MAUSKOPF OFFICE OF THE U.S. ATTORNEY Brooklyn, NY, By: Richard T. Faughnan, Attorney for Respondent.
MEMORANDUM AND ORDER
Currently before this Court is Petitioner's motion to vacate his original sentence and to correct his sentence pursuant to 28 U.S.C. § 2255 on the ground that this Court sentenced him to a term of imprisonment beyond that prescribed by the jury verdict in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), letter dated June 24, 2002 alleging that this Court erroneously calculated his sentence under the grouping rules of the Sentencing Guidelines, and letter dated July 21, 2004 requesting that the Court consider the impact of the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). For the reasons explained below, Petitioner's § 2255 motion and each of its supplements is DENIED.
BACKGROUND
On November 25, 1997, a jury returned a guilty verdict against Petitioner on one count of conspiracy to defraud the United States and two counts of income tax evasion. On March 20, 1998, this Court sentenced Petitioner to sixty (60) months imprisonment on the conspiracy count and thirty-seven (37) months imprisonment on each of the tax evasion counts. The sentences on the tax evasion count were concurrent and ran consecutive to the sentence on the conspiracy count, for a total sentence of ninety-seven (97) months imprisonment. The Second Circuit affirmed Petitioner's conviction on December 1, 1998 in an unpublished summary order. United States v. Mederos, 166 F.3d 1202 (2d Cir. 1998). The Supreme Court denied Petitioner's petition for a writ of certiorari on March 29, 1999. Mederos v. United States, 526 U.S. 1040 (1999).
DISCUSSION
I. Petitioner's Apprendi Claim
Petitioner asserts that his sentence was imposed in violation of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), in that he was sentenced to ninety-seven months imprisonment based on "the inflammatory remarks of the Prosecution and the pre-sentence report which contained many things that were not specifically mentioned in the indictments" and without which "there would have been a much lighter sentence imposed." (Pet. at ¶ 16.) Specifically, Petitioner claims that Apprendi required the government to charge in the indictment and to prove at trial his status as a leader-organizer of the conspiracy and the total tax loss attributable to his crimes. (See id. at ¶¶ 7, 16, 21, 30, 39-46.) Petitioner also claims that "[t]he consecutive time imposed . . . is clearly contrary to what the Apprendi case allows." (Id. at ¶ 22.)
Petitioner misunderstands the holding of Apprendi. Apprendi held that a defendant's sentence cannot be increased beyond the statutory maximum on the basis of a judge's factual findings unless the enhancing fact is a prior conviction. Apprendi, 530 U.S. at 489 (emphasis added). In other words, Apprendi requires that any fact other than a prior conviction that enhances a sentence beyond the statutory maximum be found by a jury beyond a reasonable doubt. Id.
In this case, Petitioner was sentenced to sixty (60) months imprisonment on the conspiracy count and thirty-seven (37) months imprisonment on each of the tax evasion counts. The sentences on the tax evasion count were concurrent and ran consecutive to the sentence on the conspiracy count, for a total sentence of ninety-seven (97) months imprisonment. The statutes on which Petitioner was convicted, 18 U.S.C. § 371 and 26 U.S.C. § 721, each provided for a maximum sentence of five years. Thus, Petitioner could have been sentenced to 120 months, considerably longer imprisonment than he received.
Furthermore, this Court's decision to run the sentences on the tax evasion counts consecutively to the sentence on the conspiracy count was authorized by 18 U.S.C. § 3584, required by § 5G1.2(d) of the Sentencing Guidelines, and not at all restricted by Apprendi. See United States v. White, 240 F.3d 127, 135 (2d Cir. 2001) ("The district court's use of section 5G1.2(d) did not result in a sentence on any one count above the maximum available on that count . . . and so did not violate Apprendi."). Indeed, contrary to Petitioner's urging,Apprendi does not provide for a separate sentencing scheme for first-time offenders (see Pet. at ¶ 5, 45) nor does it apply to sentencing enhancements that fall within the statutory maximum sentence. White, 240 F.3d at 136 (2d Cir. 2001) ("Where, as here, factual determinations were used to sentence the defendant to a sentence within the maximum allowed by statute, Apprendi is not controlling, and such determinations can be made by the court without violating the defendant's right to due process.");see also United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001) ("We see nothing in the Court's holding in Apprendi or its explication of the holding that alters a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum . . .")
Accordingly, this Court's findings regarding Petitioner's status as a leader-organizer of the conspiracy and the amount of tax loss caused by Petitioner's criminal conduct had absolutely no effect on the statutory maximum sentence Petitioner faced on any of his crimes. Petitioner's sentence fell below the statutory maximum. Consequently, Petitioner's § 2255 claims thatApprendi required that his status as a leader-organizer of the conspiracy and that the total tax loss attributable to his crimes be presented to a jury and found beyond a reasonable doubt, and that Apprendi does not provide for consecutive sentences on his crimes are dismissed without merit.
II. Petitioner's Claim that His Sentence Was Miscalculated
For the first time, in his letter dated June 24, 2002, Petitioner alleges that this Court erroneously calculated his sentence under the grouping rules of the Sentencing Guidelines. Because Petitioner failed to raise this claim on his direct appeal, that claim is procedurally barred unless he demonstrates cause for failing to raise the claim previously and prejudice resulting therefrom, or actual innocence. See Bousley v. United States, 523 U.S. 614, 622-23 (1998) (holding that defendant who fails to raise a claim on direct appeal cannot pursue it in a habeas petition unless he demonstrates either cause for the default and ensuing prejudice for the default, or "factual innocence, not mere legal insufficiency"); DeJesus v. United States, 161 F.3d 99, 102-03 (2d Cir. 1998). Petitioner has shown neither. Thus, Petitioner's claim is procedurally barred and is therefore dismissed. III. Applicability of Blakely to Petitioner's Claims
On July 21, 2004, Petitioner filed a letter requesting that the Court consider the impact of the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). The Supreme Court decided Blakely on June 24, 2004. At the present time, all indications are that Blakely does not apply retroactively to either first or successive § 2255 motions, asBlakely announced a procedural rule that does not fall within either of the exceptions defined in Teague v. Lane, 489 U.S. 288 (1989). See, e.g., Green v. U.S., No. 04-6564, 2005 WL 237204 (2d Cir. 2005) (denying authorization to file a second or successive habeas petition under 28 U.S.C. § 2255 becauseBlakely did not establish a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004) ("To date, the Supreme Court has not . . . announcedBlakely to be a new rule of constitutional law, nor has the Court held it to apply retroactively on collateral review.");Warren v. United States, No. 3:01 CV 179, 2005 WL 165385, *10 (D.Conn. Jan. 25, 2005); Bishop v. United States, No. 04 Civ. 3633, 2004 WL 2516715, *10 n. 8 (S.D.N.Y. Nov. 8, 2004); Garcia v. United States, No. 04-CV-0465, 2004 WL 1752588, *5 (N.D.N.Y. Aug. 4, 2004). Petitioner is therefore only eligible for relief under Blakely if his conviction became final after June 24, 2004.
For the purposes of 28 U.S.C. § 2255, a conviction becomes "final" when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires. Clay v. United States, 537 U.S. 522 (2003). The rules for the United States Supreme Court state that a petition for a writ of certiorari to review a decision by a United States Court of Appeals must be filed within ninety days after entry of the judgment. Id. at 525 (noting that time in which defendant could have petitioned for certiorari expired ninety days after the Court of Appeals affirmed the conviction); Sup. Ct. R. 13(1).
In the present case, Petitioner's conviction became final on March 29, 1999, when the Supreme Court denied his petition for a writ of certiorari. This Court therefore cannot apply Blakely retroactively to Petitioner's claim regarding his sentence.
CONCLUSION
For the reasons stated herein, Petitioner's claims that his sentence violates Apprendi are dismissed without merit. Petitioner's claim that his sentence was erroneously calculated under the grouping rules of the Sentencing Guidelines is procedurally barred and therefore is dismissed. This Court also concludes that Petitioner has no Blakely claim given thatBlakely does not apply retroactively to first or successive § 2255 motions.
For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing "does not require a petitioner to demonstrate that he would prevail on the merits, but merely that `reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Santana v. U.S., 2005 WL 180932, at *7 (S.D.N.Y. Jan. 26, 2005) (quoting Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002)) (internal quotation marks and citation omitted). Where a petition is dismissed on procedural grounds, the petitioner seeking a certificate of appealability must show that both the procedural and underlying constitutional issues are reasonably debatable. Sosa v. U.S., 2003 WL 22218505, *1 (S.D.N.Y. Sept. 25, 2003). Petitioner has made no substantial showing of the denial of a constitutional right in this case. Accordingly, this Court denies a certificate of appealability.
SO ORDERED.