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transferring petition, brought under § 2241 and recharacterized as a § 2255, to the district of petitioner's conviction despite likely untimeliness
Summary of this case from Couther v. PetrucciOpinion
9:01-CV-255 (NAM/GLS)
December 5, 2002
Cheryl J. Sturm, Esq., Chadds Ford, PA, for Petitioner.
Charles E. Roberts, United States Attorney Assistant U.S. Attorney, Syracuse, NY, for Respondent.
DECISION, ORDER and REPORT-RECOMMENDATION
I. Background
Pending is a habeas corpus petition filed by Michael F. Murray pursuant to 28 U.S.C. § 2241. Although incarcerated in this district, Murray complains of a 1994 District of Massachusetts judgment sentencing him to thirty (30) years imprisonment and ten (10) years supervised release following post-trial drug convictions. On appeal, the First Circuit vacated his sentence, and remanded. sub. nom. United States v. Catano, 65 F.3d 219 and 66 F.3d 306 (Table) (1st Cir. 1995).
This matter has been referred for Report-Recommendation by the Honorable Norman A. Mordue pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
On remand, the District Court imposed the same sentence, and the First Circuit affirmed on August 28, 1996. United States v. Murray, 94 F.3d 640 (1st Cir. 1996). Murray did not appeal to the Supreme Court. Pet. at ¶¶ 7-8. All of his current arguments relate to the retroactivity of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Before filing this petition, Murray never sought post-trial relief according to sworn assertions by he and his attorney, Cheryl J. Sturm, Esq. Pet. at ¶¶ 8,11, 13-14; see also, Dkt. No. 2, Mem. Law at 8 (hereinafter, "Murray MOL"). That statement is important because there are critical differences in the way this Circuit treats first and successive petitions. To determine why Murray opted to file a § 2241 petition here rather than returning to Massachusetts with a 28 U.S.C. § 2255 petition, the court sought to ascertain the First Circuit's position on the retroactivity of Apprendi. In doing so, it located Chief Judge Young's opinion in Murray v. United States, 2002 WL 982389 (D.Mass. May 10, 2002). Clearly, Murray is the same habeas petitioner in both districts.
In a Declaration attached to his Memorandum of Law, Murray swore to the truth of the asserted facts.
According to Judge Young, Murray filed a first habeas petition in Massachusetts on July 10, 2000 (Id. at *1, fn 1), seven months before he filed here. Therefore, the sworn assertions by Murray and his attorney that there were no prior filings appear to be false. According to the caption of Judge Young's decision, Murray appeared pro se. Thus, it is unclear what Ms. Sturm knew when she signed the petition here. The difficulty in resurrecting an accurate procedural history is exacerbated by the government's failure to answer or file the underlying record. See hereinafter, Discussion, Motion to Dismiss.
The court also notes that Ms. Sturm recently filed a bail application on October 7, 2002. Dkt. No. 17. In her application, she did not mention Massachusetts petitions, and twice asserted that none were filed.
In any event, Judge Young dismissed Murray's first Massachusetts petition as utterly frivolous on September 4, 2000. Murray at *1, fn 1. Murray then applied to the First Circuit on June 26, 2001, for leave to file a second or successive petition. See 28 U.S.C. § 2244, 2255 (¶ 7).
Referring only to his earlier Massachusetts petition, the First Circuit expressed doubt that Murray's petition was successive. Murray at *1 and fn 1. Although this court does not have the Massachusetts record, it appears that Murray neglected to inform those courts that he had filed in this district on February 20, 2001, three months before he filed in the First Circuit. The First Circuit transferred its petition to Judge Young who then treated that second Massachusetts petition as a first petition. Murray at fn. 1.
Judge Young's May 10, 2002, decision clearly reflects that the issues raised in both districts are identical, and he held that Apprendi does not apply retroactively to cases on collateral review. Murray at *1, 8. At the same time, he granted Murray a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rules of Appellate Procedure 22(b), and invited Murray to take the issues up with the First Circuit. Id. at *8. Nothing in the current record suggests that Murray accepted the invitation.
In summary, Murray's petition chronology is as follows: on July 10, 2000, he filed a first petition in the Massachusetts District Court which was dismissed on September 4, 2000; on February 20, 2001, he filed a second petition in this district; while his petition was pending here, he filed a third petition with the First Circuit on June 26, 2001, the First Circuit transferred his third petition to the Massachusetts District Court which then treated it as a first petition, denied it on May 10, 2002, and granted a certificate of appealability; Murray apparently did not appeal, and his petition in this district is now before the court. It appears that neither he nor his attorney told either district about the proceedings pending in the other.
In this district, as in Massachusetts, Murray attacks his incarceration on Apprendi grounds, asserting that: he is being held in violation of the International Covenant on Civil and Political Rights (December 16, 1966, 999 U.N.T.S. 171("ICCPR")); his indictment was defective; his sentence exceeded the statutory maximum and was therefore excessive; and, he is authorized to file under § 2241 rather than § 2255 because Apprendi arguments were unavailable at the time of judgment and because his case involves a miscarriage of justice resulting from a fundamental defect in the underlying proceedings. Murray MOL at 5-21.
The government moved to dismiss Murray's petition, arguing: the court lacks jurisdiction because Apprendi is neither retroactive nor does it authorize a collateral attack on sentence; Murray has procedurally defaulted because he failed to raise his arguments on direct appeal; the claims are time barred; and, the remedy provided by 28 U.S.C. § 2255 is neither inadequate nor ineffective. See Gov't MOL at 2-7, Dkt. No. 10 (hereinafter, "Gov't MOL").
Together with a traverse, Murray filed a motion to strike the government's dismissal motion because it is a pleading unrecognized in habeas cases. Dkt. No. 11. Murray also moved for release on bail. Dkt. Nos. 17, 19.
The conduct underlying Murray's conviction is succinctly summarized in the First Circuit's original opinions. See sub. nom. United States v. Catano, 65 F.3d 219 and 66 F.3d 306 (Table) (1st Cir. 1995). He was convicted of a marijuana conspiracy and substantive marijuana counts, all related to the transportation of thousands of pounds of marijuana from Texas to Boston in 1989 and 1991. He also participated in the storage and redistribution of the marijuana.
Murray asserts, and the government apparently concedes, that his indictment failed to allege drug quantity, and the trial court failed to charge the jury that drug quantity and identity were elements of the charged offenses. Murray MOL at 1-4. At sentencing, the district court adopted a pre-sentence report computation attributing between 3,000 and 10,000 kilograms of marijuana to Murray. Based upon the guideline calculation for that quantity and a finding that Murray warranted a role in the offense enhancement, the court sentenced him to thirty (30) years imprisonment and ten (10) years supervised release. Murray MOL at 4. The sentence was imposed pursuant to 21 U.S.C. § 841(b). Pet. at ¶ 3; Murray MOL at 4-5. Dependent on quantity, the maximum statutory, marijuana penalties are life, forty years or five years. See 21 U.S.C. § 841(b)(1)(A)(vii), (b)(1)(B)(vii), and (b)(1)(D).
For the reasons that follow, Murray's motions to strike and for bail are denied, and the court orders additional submissions in anticipation of further proceedings regarding the imposition of sanctions. The court also recommends that the government's motion to dismiss be denied. In doing so, however, the court recommends that Murray's petition be transferred to the District of Massachusetts on jurisdictional grounds. This district lacks jurisdiction because Murray's § 2241 petition is, in reality, an application for § 2255 relief, and he must return to the court of conviction.
Whether or not he can satisfy § 2255's jurisdictional prerequisites, § 2255 is neither inadequate nor ineffective. Alternatively, the court recommends granting the government's motion to dismiss because Apprendi is not retroactive to first petition cases on collateral review, and Murray's petition is therefore time barred. With this alternative recommendation, this court joins virtually every active and senior District Court and Magistrate Judge in this district who have already held or recommended that Apprendi is not retroactive to cases on collateral attack. Although this court agrees with the rationale of the Northern District opinions, that agreement is irrelevant since the co-assigned District Court Judge, Norman A. Mordue, has already decided this issue. See Fn. 4, Firpo, White, and Thibodeau.
Collectively, the Northern District opinions are as follows: Watson v. Nash, 01-CV-0356 (Sept. 20, 2002) (Hurd, DJ; Treece, MJ); Morales-Cartagena, 9:01-CV-325 (Sept. 19, 2002) (McAvoy, DJ; Homer, MJ); Blackmon v. Nash, 9:01-CV-0282 (Sept. 3, 2002) (Kahn, DJ; Treece, MJ) (recommendation pending); Cannon v. Nash, 9:00-CV-1802 (July. 11, 2002) (Kahn, DJ; DiBianco, MJ); Firpo v. Nash, 9:01-CV-00295 (Je. 19, 2002) (Mordue, DJ; Treece, MJ); White v. Nash, 01-CV-128 (Apr. 25, 2002) (Mordue, DJ; Homer, MJ); Black v. Nash, 9:00-CV-1901 (Apr. 10, 2002) (Scullin, CJ; Peebles, MJ); Lewal v. Warden, 00-CV-1490 (Apr. 10, 2002) (Kahn, DJ; Treece, MJ); Ladson v. Nash, 00-CV-1573 (Apr. 10, 2002) (Kahn, DJ; Homer, MJ); Poindexter v. Nash, 9:01-CV-717 (Mar. 1, 2002) (Kahn, DJ; Peebles, MJ); King v. Nash, 9:00-CV-1805 (Jan 28, 2002) (Hurd, DJ; Peebles, MJ); Morales-Diaz v. Nash, 9:01-CV-0398 (Jan. 14, 2002) (Kahn, DJ; Peebles, MJ); Ladson v. Nash, 9:00-CV-1793 (Jan. 9, 2002) (Kahn, DJ; Peebles, MJ); Knighton v. Nash, 9:01-CV-0266 (Jan. 7, 2002) (Kahn, DJ; Peebles, MJ) (order granting voluntary dismissal following report and recommendation); Thibodeau v. Nash, 9:00-CV-1763 (Dec. 28, 2001) (Mordue, DJ; Peebles, MJ); Leon v. Nash, 9:01-CV-0418 (Dec 4, 2001) (McAvoy, DJ) (granting petitioner's motion to dismiss Apprendi claims); see also, United States v. Moore, 198 F.R.D. 39 (N.D.N.Y. 2000) (McAvoy, DJ); Wright v. United States, 166 F. Supp.2d 702 (N.D.N.Y. 2001) (Hurd, DJ); Quinones v. United States, 2002 WL 1313204 (N.D.N.Y., Je. 14, 2002), Hargrett v. United States, 2002 WL 1343469 (N.D.N.Y. Je. 14, 2002), Menefield v. United States, 187 F. Supp.2d 65 (N.D.N.Y. 2002), and Stanley v. United States, 181 F. Supp.2d 119 (N.D.N.Y. 2002) (all Munson, Sr. J.); and, Santana-Madera v. United States, 1999 WL 30986 (N.D.N.Y. Jan. 19, 1999) (McCurn, Sr. J.), aff'd, 260 F.3d 133 (2d Cir. 2001), cert. den'd, 122 S.Ct. 817, 151 L.Ed.2d 701 (2002). Those decisions without official citation may be retrieved from the Internet at www.nynd.uscourts.gov, and "CourtWeb."
II. Discussion A. Summary
The court begins with a summary because the jurisdictional issue is somewhat complex, and Murray's Massachusetts filings compound that complexity. According to Apprendi and its progeny, a convicted drug defendant may not be sentenced above the lowest, un-enhanced statutory maximum if drug quantity is not alleged and proved. That rule would reduce Murray's sentence from thirty to five years if Apprendi is retroactively applicable to him.
It is crystal clear that Apprendi is not retroactive in successive petitions because the new habeas statute places strict limits on the application of new constitutional rules to past convictions. That statute requires that the Supreme Court itself decide the retroactivity of a new rule, and absent a decision to that effect, the lower courts must dismiss.
The Supreme Court has not held that Apprendi is retroactive. However, a different subdivision of the statute governs first petitions. Tied to a new one year limitations period, that subdivision may permit lower courts to decide whether a new rule is retroactive. Unlike second or successive petitions, the Second Circuit has specifically declined to rule on the retroactivity of Apprendi in first petitions. Most courts have adopted a statutory interpretation that permits lower courts to adjudicate retroactivity.
To do so, the court engages in a so-called Teague analysis. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This court accepts, as it must, the Second Circuit's rule that Apprendi is not retroactively applicable to successive petitions. This court also concludes that it is has jurisdiction to entertain the question of whether Apprendi is retroactive in first petitions, and further concludes that it is not.
Despite the court's Apprendi conclusion, this case also presents overriding jurisdictional issues, one of which is whether any court in this Circuit is empowered to consider Murray's petition in the first instance. Habeas petitions attacking the judgment or underlying proceedings must be brought as § 2255, not § 2241 motions, and must be filed in the district of conviction. However, unless the petitioner is already subject to the more rigorous successive petition standard (specific Supreme Court retroactivity ruling), a district court must afford the prisoner notice and an opportunity to withdraw his petition before converting it. Furthermore, this Circuit recognizes an exception to the conversion rule if § 2255 is inadequate or ineffective to test the legality of detention. However, the inability to meet the procedural restrictions of the new habeas statute does not render § 2255 inadequate or ineffective, especially when there is no accompanying claim of actual innocence.
There is another jurisdictional issue concerning whether the petition must first be presented to the Court of Appeals for certification because it is a second or successive petition. In this Circuit, a petition is successive if a prior motion, regardless of how the petitioner characterized it, was finally decided on the merits or dismissed with prejudice at the time the new petition was filed.
Applying these jurisdictional rules, this court concludes that Murray's motion in this district was a first, not successive petition. This is so because Judge Young held that Murray's first Massachusetts application was not a § 2255 petition, he then treated the second Massachusetts petition (third overall) as a first petition, and he had not ruled on the merits before Murray filed here. Therefore, since the petition filed here is a first petition under the Second Circuit's rules, it may be considered by a district court, and does not require appellate certification. However, this court also concludes that § 2255 is neither inadequate nor ineffective, and Murray's petition must be treated under § 2255, not § 2241. The court further concludes, especially in light of Murray's apparent false assertions concerning prior applications, that he had ample notice of the adverse consequences associated with successive petition review, and the District Court is under no obligation to permit him to withdraw. Accordingly, he must return to Massachusetts.
Although this court believes dismissal of Murray's petition is the appropriate equitable remedy, the court nonetheless recommends that the District Court transfer the petition to Judge Young so that he may apply the analysis appropriate to the First Circuit. This recommendation is specifically tailored to Judge Mordue who has previously elected transfer rather than dismissal. See Mordue Order adopting, in part, and rejecting, in part, report and recommendation, Baldwin v. Wiley, 9:99-CV-336, Dkt. No. 35; see also, 2001 WL 1860888 (N.D.N.Y. Sept. 19, 2001) (underlying report and recommendation).
The court now turns to the motion to dismiss, then a more detailed analysis of the Apprendi and habeas principles, and concludes with a consideration of bail and sanctions.
B. Motion to Dismiss
In his motion to strike, Murray seeks an order compelling an answer as required by the habeas statutes. See Rules Governing 28 U.S.C. § 2254 and 2255. Although he cites opinions from elsewhere in the country, he fails to cite this court's decision in Pizza v. Nash, 2001 WL 1862808 (N.D.N.Y. Oct. 11, 2001) which is directly on point.
In Pizza, the court specifically admonished the government about routinely filing motions to dismiss in lieu of an answer and the underlying record, especially when failing to comply with this district's motion practice rules and those recited in Rule 12(b) of the Federal Rules of Civil Procedure. Id. at *1. Since the Pizza motion was nothing more than a routine response to traditional habeas issues, the court recommended that the district court deny the motion with leave to re-file an answer and the underlying record. Id. at *2. This court did observe, however, that Rules 11 and 12, respectively, of the Rules Governing 28 U.S.C. § 2254 and 2255 do afford the court the discretion to use the Federal Rules of Civil Procedure when appropriate. However, the court cautioned that such motions should be limited to those cases that raise jurisdictional issues or other subjects specifically encompassed by Rule 12(b).
Despite the Pizza admonition, the government's current motion still fails to comply with L.R. 7.1.
The recommendation was subsequently adopted by the Honorable David N. Hurd, District Court Judge. See Pizza v. Nash, 9:01-CV-757, Dkt. No. 15.
There is generally good reason to avoid motions to dismiss. For example, the government argues that Murray has procedurally defaulted his claims. Although reference to the First Circuit opinions suggests as much, it is impossible for the court to conduct a thorough analysis without access to the underlying record, including the appellate briefs. So too, the court has already noted Murray's apparent false statements about prior collateral proceedings, the details of which impact whether this petition is successive. Nonetheless, the current motion does raise a jurisdictional issue; namely, this court's authority to entertain a petition ostensibly filed under 28 U.S.C. § 2241 which is, in fact, a petition addressing the underlying judgment which must be filed in the district of conviction pursuant to 28 U.S.C. § 2255. Accordingly, the court denies Murray's motion to strike.
C. Substantive Application of Apprendi
The court next turns to the substantive merit of Murray's Apprendi argument. The court notes that Judge Young did not unequivocally resolve this issue. Murray at 2002 WL 982389, at *5. In Apprendi, the Supreme Court held that any fact other than a prior conviction 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, 120 S.Ct. 2362-63. Citing United States v. Westmoreland, 240 F.3d 618, 632 (7th Cir. 2001), Judge Young stated that post-Apprendi, a sentence is limited to the lowest, un-enhanced statutory maximum prescribed by the relevant drug statute.
Murray at *5. A fair reading of Judge Young's opinion suggests that had he retroactively applied Apprendi, he would have reduced Murray's sentence to five years. Had Murray been convicted in this Circuit post-Apprendi, his sentence would also be reduced to five years. See United States v. Outen, 286 F.3d 622, 637 (2d Cir. 2002); United States v. Richards, 302 F.3d 58, 66-67 (2d Cir. 2002). Therefore, if Apprendi is retroactively applicable to Murray, there is a violation.
D. Retroactivity of Apprendi
Whether or not Apprendi is retroactively applicable to cases on collateral review requires a two-part analysis. First, the court must address the jurisdictional issue of whether lower courts are statutorily authorized to make that determination. If so, retroactivity then turns on an application of Teague jurisprudence. The court begins its analysis having already concluded that Murray's petition in this district is a first, not successive petition. See hereinafter Legal Discussion, Jurisdiction, First or Successive.
1. The Statutory Standard
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA") created new statutory limits on habeas petitions. Those rules are codified in 28 U.S.C. § 2244 and 2255, and the § 2244 rules apply to § 2255 petitions. Santini v. United States, 140 F.3d 424, 426 (2d Cir. 1998) (citing Triestman v. United States, 124 F.3d 361, 366-67 (2d Cir. 1997)). 28 U.S.C. § 2255 governs the retroactive application of new constitutional rules to successive petitions, and as relevant, provides:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Id. at ¶ 7. As to first petitions, § 2255 recites the statutory standard in the paragraph addressing the new statute of limitations, and, as relevant, it provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final; . . .
(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 . . .
Id. at ¶ 6. Thus, the court must decide whether first petitions have been timely filed which means one year from the final judgment or, alternatively, one year from the date the Supreme Court recognizes a new right that is retroactively applicable to cases on collateral review. As casual observation reveals, the language in the two sections differs. Paragraph eight ties the retroactivity application to a Supreme Court decision while paragraph six uses different language, and arguably does not require a definitive Supreme Court ruling.
In Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001), the Supreme Court, interpreting 28 U.S.C. § 2244(b)(2)(A) which contains language identical to that in paragraph eight, held that a new rule of constitutional law was retroactive to cases on collateral review only if that Court said so. In Forbes v. United States, 262 F.3d 143, 145 (2d Cir. 2001), the Circuit, citing Tyler, held that as to successive petitions, the Supreme Court had not specifically held that Apprendi was retroactive, and therefore it was not. However, the Court expressly declined to rule on the retroactivity of Apprendi in first petitions. Id. at 146, fn. 5. As the Circuit stated this past May, the issue remains undecided, but is pending.
See Beatty v. United States, 293 F.3d 627, 631 fn. 3 (2d Cir. 2002). The Circuit's ultimate decision will inevitably hinge on a two-part analysis; namely, whether there is a difference in the governing statutory standard, and the retroactivity of Apprendi under whatever standard governs.
Three Circuits have either avoided the jurisdictional issue or, sub silencio, decided retroactivity without reference to it. See United States v. Sanders, 247 F.3d 139, 146 fn. 4 (4th Cir. 2001) (assuming, without deciding, jurisdiction to declare a new rule retroactive on collateral review in first petitions); United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002) and McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001) (exercising jurisdiction without discussion). Four others have specifically considered the question and, as a matter of statutory construction, held that Congress did not intend to preclude lower courts from considering retroactivity in first petitions. Therefore, prior Supreme Court precedent is not a precondition to doing so. United States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001); Goode v. United States, 39 Fed. Appx. 152, 157 (6th Cir. 2002); Ashley v. United States, 266 F.3d 671, 674-75 (7th Cir. 2001); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001). None of the Northern District decisions have directly addressed the jurisdictional predicate. See fn. 4. However, a number of them involved first petitions and substantively decided the retroactivity question, thereby acknowledging jurisdiction, sub silencio.
See fn. 4, Donaldson, 2002 WL 1839213; Quinones, 2002 WL 1313204; Hargrett, 2002 WL 1343469; Menefield, 187 F. Supp.2d 65; Stanley, 181 F. Supp.2d 119; Wright, 166 F. Supp.2d; Black, 9:00-CV-1901; Morales-Diaz, 9:01-CV-0398; Knighton, 9:01-CV-0266; and, Thibodeau, 9:00-CV-1763 (Mordue, DJ, the co-assigned District Court Judge in this case).
For the reasons stated by the Fifth and Seventh Circuits in Lopez and Ashley, this court concurs that district courts have jurisdiction to decide retroactivity in first petitions. A statutory analysis of the two sections reflects Congress' intent to treat first and successive petitions differently. Lopez at 431-32; Ashley at 672-73. Furthermore, lower courts must first decide the issue before the Supreme Court may resolve it, lower courts are not under the expedited time constraints imposed in successive petitions (see 28 U.S.C. § 2244(b)(3)(D)), and first petitions should have more latitude because the prisoner should have one full opportunity to challenge the judgement. Ashley at 673.
2. Teague v. Lane
Having concluded that the court has jurisdiction to decide the retroactivity issue, it turns to a Teague analysis. In doing so, it need go no further than the universal observations of the District Court Judges in this district and the courts of appeals that have addressed the issue. Apprendi is not retroactive to first petitions on collateral review.
First of all, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), applies to federal prisoners, Gilberti v. United States, 917 F.2d 92, 94-95 (2d Cir. 1990), and new rules of constitutional criminal procedure do not generally apply on collateral review. United States v. Mandanici, 205 F.3d 519, 527 (2d Cir. 2000). Whether or not a new rule is an exception to that general principal requires an analysis of the three-step inquiry established in Teague. In the first two steps, the court must determine when the defendant's conviction became final, and then decide whether the Supreme Court's ruling constitutes a new rule of criminal procedure. Even if the ruling is a new procedural rule, it is not retroactive on collateral review unless it falls within two narrow exceptions; namely, those which prohibit criminal punishment of certain primary conduct or which prohibit a category of punishment for a class of defendants because of their status or offense. See Teague v. Lane; see also, O'Dell v. Netherland, 521 U.S. 151, 156-57, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997).
Apprendi is a new procedural rule and was announced long after Murray's conviction became final, thus satisfying the first two steps. However, Murray fails to meet the first narrow exception because the federal power to punish drug crimes was long extant before Apprendi, and Apprendi did not create new punishment for drug-related conduct. As to the second narrow exception, a new rule must call into question the accuracy of an underlying conviction or alter the understanding of the bedrock procedural elements essential to the fairness of a proceeding. Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Since Apprendi only shifts the fact-finding duties from the court to the jury, it does not alter the essential fairness of the underlying proceeding, and thus fails to satisfy the second exception. All Circuit and Northern District courts that have considered the exceptions have held that they do not apply. See In re Turner, 267 F.3d 225, 229-231 (3d Cir. 2001); United States v. Sanders, 247 F.3d 139, 147-150 (4th Cir. 2001); Goode v. United States, 39 Fed. Appx. 152, 155-158 (6th Cir. 2002); Curtis v. United States, 294 F.3d 841, 842-44 (7th Cir. 2002); United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001); United States v. Sanchez-Cervantes, 282 F.3d 664, 668-671 (9th Cir. 2002); McCoy v. United States, 266 F.3d 1245, 1255-1258 (11th Cir. 2001); see also, cases collected at fn. 4.
For the same reasons, this court concludes that Apprendi is not retroactive to first petition cases on collateral review. Since Murray did not seek to appeal his conviction to the Supreme Court, his conviction became final on August 28, 1996, the date the First Circuit affirmed following remand. Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001).
He therefore had until August 27, 1997, to file his petition, but did not do so until February 7, 2001. Thus, he is time barred under the statute (see 28 U.S.C. § 2255, ¶ 6), and this court would ordinarily recommend dismissal under the circumstances.
Even if the court considered his first Massachusetts petition for purposes of equitable tolling, it was filed on July 10, 2000, almost three years too late. See 28 U.S.C. § 2244(d).
E. Jurisdiction
There are distinct, but overlapping, jurisdictional issues raised by this case. The first addresses the power of the district court to consider the petition which hinges on the answer to whether it is first or successive. If first, the district court may do so, but if successive, the appellate court must do so. The second turns on an analysis of whether the petition should be recharacterized as filed pursuant to 28 U.S.C. § 2255 instead of 28 U.S.C. § 2241. If so, the petition must be converted to § 2255, and transferred to the District of Massachusetts unless the § 2255 remedy is inadequate or ineffective. The court now addresses these jurisdictional issues.
1. First or Successive
Habeas jurisprudence in this Circuit has become increasingly complex, significantly so in the area of first or successive petitions. With the enactment of the AEDPA, Congress dramatically altered 28 U.S.C. § 2244 and 2255. If a petition is second or successive, it may not be brought in the district court unless the court of appeals certifies that it contains newly discovered evidence or a new rule of law made retroactive to cases on collateral review by the Supreme Court. 28 U.S.C. § 2255, ¶ 7.
Designed to create finality in federal convictions, the certification process is recited in 28 U.S.C. § 2244, and codifies prior abuse of the writ principles. Thus, no circuit or district judge is required to entertain a writ if the legality of detention has previously been determined. 28 U.S.C. § 2244(b)(1). If the same claim is presented in second or successive petitions, it must be dismissed. § 2244(b). Even if the claim is new, it must be dismissed unless it relies on a new constitutional law retroactively applied to cases on collateral review by the Supreme Court. § 2244(b)(2).
Before a habeas petitioner files a second or successive claim with the district court, he or she must seek permission to do so from the appropriate court of appeals, the so-called "certification process" or "gate keeping requirement." § 2244(b)(3). Absent appellate certification, the district court must dismiss a successive claim first filed in that court. § 2244(b)(4).
The Circuit first addressed the complexity of this process in Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996), holding that if the petitioner erroneously filed a second or successive petition in the district court without proper certification, the district court should transfer the petition to the Court of Appeals for certification rather than dismissing it.
In Galtieri v. United States, 128 F.3d 33, 38 (2d Cir. 1997), the Circuit addressed the definition of second or successive, holding that a petition was not successive if it addressed only the amended components of a first petition that had been previously granted. It further held, however, that the petition was successive as to any component not amended. Id. at 38.
In Santini v. United States, 140 F.3d 424, 426 (2d Cir. 1998), it extended this rationale, holding that unless judgment had already been entered when a first petition was filed, a subsequent petition was not second or successive, but instead a first petition.
In Adams v. United States, 155 F.3d 582 (2d Cir. 1998), the Circuit addressed a variant of the issue which occurs when a petitioner files a motion that could be characterized as seeking § 2255 relief, and converted to such. See also, Chambers v. United States, 106 F.3d 472 (2d Cir. 1997); James v. Walsh, ___ F.3d ___, 2002 WL 31303176, at *3 (2d Cir. Oct. 15, 2002). Noting the far more stringent standard of review applicable to successive motions (see 28 U.S.C. § 2244(b)(2)), the Court observed that petitioners might suffer a disastrous loss by conversion. Adams at 583. Therefore, it held that the district court should not recharacterize a motion as one seeking § 2255 relief unless the petitioner consents or is provided an opportunity to withdraw the motion upon notice of the conversion. Id. at 584. In Roccisano v. Menifee, 293 F.3d 51 (2d Cir. 2002), the Court distinguished and limited the Adams rule. There, the Court held that a petitioner had no right to notice and an opportunity to withdraw if prior § 2255 motions were already dismissed on the merits since the leave-to-file requirement was already applicable. Id. at 58.
The varying circumstances in which this issue may arise have created a procedural quagmire, a subject discussed by the Circuit in Littlejohn v. Artuz, 271 F.3d 360 (2d Cir. 2001); see also, Gitten v. United States, ___ F.3d ___, 2002 WL 31496555 (2d Cir. Nov. 1, 2002). Although Littlejohn itself dealt with a motion to amend, the decision summarized other cases and reached a common, analytical thread. Littlejohn at 362-363. Thus, regardless of its cited basis, a prior petition must have been decided on the merits or dismissed with prejudice before the new application can be treated as second or successive. Id. at 363. Citing Muniz v. United States, 236 F.3d 122, 126-27 (2d Cir. 2001), the Court did observe, however, that the stringent AEDPA certification requirements were designed to prevent abuse of the writ.
A strict application of these principles causes the court to reach an uncomfortable conclusion; namely, Murray's petition should be treated as a first petition under § 2255. That conclusion is uncomfortable because of his apparent chicanery in hiding the First Circuit proceedings which, if nothing else, constitutes an abuse of the writ. Nonetheless, although he had filed prior applications in Massachusetts before he filed in this district, Massachusetts itself did not treat his first filing as a first petition and his second petition had not been terminated on the merits. While it is true that the last Massachusetts proceeding has since been terminated, it was extant when this application was filed. Under analogous circumstances, but where the entire proceedings were pending in this Circuit, the Circuit has directed that the district court treat the second petition as a motion to amend the first. Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002).
Obviously, this court cannot recommend that the District Court construe Murray's petition as a motion to amend his First Circuit petition, grant the motion, and then transfer it. Accordingly, the court recommends, against its better judgment, that the District Court treat Murray's petition as a first petition, thus avoiding referral to the Second or First Circuit for certification at all. Although the court is not necessarily convinced that Murray's multiple filings are not at the heart of "abuse of the writ," the recommendation is not inconsistent with the Circuit's prior teachings.
2. Characterization of the Petition: § 2241 or § 2255
Murray filed his petition pursuant to 28 U.S.C. § 2241. If, however, the relief sought is more appropriate to 28 U.S.C. § 2255, the court should convert it unless Murray would be left with an inadequate or ineffective remedy. If converted, the petition must be transferred to Massachusetts, the district of conviction.
§ 2255 provides the remedy for a federal prisoner who attacks his sentence because it violates the Constitution or federal law, the sentencing court lacked jurisdiction to impose it, it exceeded the maximum authorized, or it is otherwise subject to collateral attack. Id. at ¶ 1. The petition must first be filed with the sentencing court unless it appears that it would be inadequate or ineffective to test the legality of the sentence. Id. at ¶ 5. On the other hand, 28 U.S.C. § 2241 provides habeas relief to prisoners who are in custody in violation of the Constitution, federal law or a treaty. Id. at § 2241(c)(3).
In Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997), the Second Circuit distinguished the two statutes, holding that petitions attacking the sentence must be filed under 2255 while those attacking the execution of the sentence are properly filed under 2241. See also, Roccisano v. Menifee, 293 F.3d 51, 57 (2d Cir. 2002). Execution claims include such things as prison sentence calculations, parole decisions, and conditions of confinement. Chambers at 474-475; Roccisano at 57.
Imposition claims include challenges to the underlying proceedings leading to conviction and sentence. Roccisano at 57. The prisoner's decision to file under one section or the other is irrelevant, and courts are free to recharacterize the petition according to the relief it seeks. Chambers at 475; James v. Walsh, ___ F.3d ___, 2002 WL 31303176, at *3 (2d Cir. Oct. 15, 2002). Properly characterized 2255 petitions must be filed with the district court that imposed sentence. United States v. Triestman, 124 F.3d 361 (2d Cir. 1997); Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001); see also, Baldwin v. Wiley, 2001 WL 1860888 (N.D.N.Y. Sept. 19, 2001).
In Baldwin, the court's recommendations were partially adopted by Judge Mordue. See 9:99-CV-00336, Dkt. No. 35 (accepting the recommendation that the § 2241 petition be deemed a § 2255 petition).
All of Murray's Apprendi claims relate to his Massachusetts sentence. He argues that the trial court should have sentenced him to five years, not thirty, since five is the lowest, un-enhanced marijuana maximum. From that sole premise, he then argues that his thirty year sentence exceeded the statutory maximum and was excessive, and that the indictment was defective because it failed to allege quantity. So too, his ICCPR Treaty claim is just another attempt to fit his Apprendi claim into § 2241's "treaty" provision, and simply asserts that his current detention is unlawful because he has not received the benefit of post-sentencing legal developments. Since these arguments address the imposition of sentence, the court must convert the petition to § 2255 unless that remedy is inadequate or ineffective.
The ICCPR provides no basis for relief in any event. Because it is neither self-executing nor has Congress passed implementing legislation, it is not privately enforceable. Igartua de la Rosa v. United States, 32 F.3d 8, 10 fn. 1 (1st Cir. 1994); Goldstar (Panama), S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992); Senate Resolution of Ratification of International Covenant on Civil and Political Rights, 102d Cong., 138 Cong. Rec. S4781-01, S4784 (April 2, 1992). Furthermore, this issue has now made its institutional trip around the country, and all of the courts that have considered it have held that it provides no basis for habeas relief. See Dutton v. Warden, 37 Fed.Appx. 51, 2002 WL 255520 (4th Cir. Feb. 22, 2002); Wesson v. U.S. Penitentiary Beaumont, Tx., 305 F.3d 343 (5th Cir. 2002); United States ex. rel. Perez v. Warden, 286 F.3d 1059 (8th Cir. 2002); Benitez v. FCI Phoenix, 27 Fed.Appx. 917, 2001 WL 1662648 (9th Cir. Dec. 28, 2001); Reaves v. Warden, 2002 WL 535398, at *9 (M.D.Pa. Mar. 22, 2002).
Given Murray's participation in the collateral Massachusetts proceedings, it is obvious that he understood the impact of multiple filings. Otherwise, he would have either filed there in the first place or informed this court that he had already done so. Under the circumstances, the court does not believe that he should be given an opportunity to simply withdraw his petition, nor does the court believe the Circuit would require as much.
3. Inadequate or Ineffective: The § 2255 Savings Clause
28 U.S.C. § 2255 specifically provides that a prisoner must apply for habeas relief in the district of conviction "unless it appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." Id. at ¶ 5. The burden of proving that § 2255 is inadequate or ineffective is on the petitioner. Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).In Triestman v. United States, 124 F.3d 361 (2d Cir. 1997), the Circuit considered this so-called "savings clause," and held that a prisoner may use 28 U.S.C. § 2241 in the district of confinement if he "cannot, for whatever reason, utilize § 2255, and . . . the failure to allow for collateral review would raise serious constitutional questions." Id. at 377-78. The petitioner in Triestman was precluded from using § 2255 because of the gate keeping requirements, but he also had a claim of actual innocence. The Court cautioned that the inability to meet § 2255's stringent procedural standards alone was insufficient to permit the use of § 2241. Id. at 376.
In Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001), the Circuit distinguished Triestman, holding that § 2255 is neither inadequate nor ineffective simply because a prisoner is precluded from further review by habeas procedural requirements. In doing so, the Circuit expressly referred to the two-prong Triestman inquiry which first requires a procedural impediment precluding substantive consideration of an issue, and secondly, the issue thereby precluded must be of constitutional dimension such as an actual innocence claim. Jiminian at 147. As to the first prong, the Circuit further held § 2255 is neither inadequate nor ineffective simply because a prisoner cannot meet the habeas procedural hurdles as long as the issue he seeks to raise was previously available on direct review or in a prior § 2255 motion. Id. at 147-48.
Attempting to satisfy his burden of proof, Murray argues that he cannot raise his treaty argument in a § 2255 petition, and § 2255 is otherwise inadequate and ineffective because his Apprendi arguments were "unavailable when his 2255 motion was being litigated." Murray Traverse at pp. 3-5 (quote at p. 5); Dkt. No. 11 (emphasis added). The court has already disposed of his treaty argument. See Fn. 9. The unavailability of his Apprendi arguments at the time of conviction is an argument courts have routinely rejected, noting that the foundation for those arguments was laid long before the Supreme Court rendered its decision in 2000. Therefore, they could have been raised on appeal or in a § 2255 motion. See e.g., Stanley v. United States, 181 F. Supp.2d 119, 120-21 (N.D.N.Y. 2002) (Munson, S.J.) (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)).
Obviously, Murray's quote only throws fuel on the burning procedural fire noted in this opinion since he has denied any litigation relative to earlier § 2255 motions.
Furthermore, Murray offers no argument whatsoever suggesting that he is actually innocent. He fails to meet either prong of the Triestman test, and his § 2255 remedy is neither inadequate nor ineffective. Therefore, his § 2241 petition should be converted to § 2255. Even though the court believes that Murray's petition is time barred, it nonetheless recommends transferral to Massachusetts rather than dismissal. Certainly, the District Court has authority to do so (see 28 U.S.C. § 1631), and has elected to transfer in the past. See Baldwin at 9:99-CV-336, Dkt. No. 35; but cf. Black v. Nash, 9:00-CV-1901, Dkt. No. 20 (Scullin, CJ).
Even if Murray had recited his prior Massachusetts petitions and this court concluded that his petition was successive, § 2241 would still be unavailable to him since that is the precise holding in Forbes, 262 F.3d at 145.
F. Sanctions
As the court has already stated, the Federal Rules of Civil Procedure may be applied, when appropriate, to habeas cases. See Discussion, Motion to Dismiss; see also, Rule 12 Foll. 28 U.S.C. § 2255, Fed.R.Civ.P. 81(a)(2), and Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 1090, L.Ed.2d 281 (1969) (". . .[H]abeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.")
Fed.R.Civ.P. 11 governs representations to the court in pleadings, motions and other papers filed with the court. Rule 11(b) requires reasonable inquiry by attorneys and parties before signing such papers, and 11(c) provides authority to sanction if attorneys or parties falsely certify facts. Furthermore, the court has the inherent power to sanction those who seek to deceive the court with false representations, and may raise such issues sua sponte. See Chambers v. Nasco, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); United States v. Seltzer, 227 F.3d 36 (2d Cir. 2000).
The court is not prepared to draw final conclusions concerning sworn assertions in Murray's petition, memoranda of law and bail application. First, it must provide the parties an opportunity to respond. Accordingly, the parties and attorneys must comply with the court's order in this regard. The court will then evaluate the submissions, and decide the appropriate manner in which to proceed.
G. Bail
Because Murray's habeas arguments are without merit, and his petition should be transferred or dismissed, his application for bail is denied.
IV. Conclusion
For the reasons stated herein, it is hereby
ORDERED that on or before JANUARY 17, 2003, both petitioner, Michael F. Murray, and his attorney, Cheryl J. Sturm, Esq., shall file an affidavit with the Clerk of Court reciting:
1. A complete chronology of all post-trial motions filed either by Murray or on his behalf following the First Circuit's affirmance of his conviction on August 28, 1996;
2. An explanation as to why the petition filed in this district specifically denied other post-trial motions, if such motions were filed; and,
3. The identity of the § 2255 motion "being litigated" as referenced in the Murray Traverse (Dkt. No. 11) at page 5; and it is further
ORDERED that the government shall file on or before February 17, 2003, unless an extension is further authorized by the court, a copy of the underlying record related to all post-trial motions for collateral relief filed by Michael F. Murray on or after August 28, 1996, in Massachusetts, and it is further
ORDERED that the application by Michael F. Murray to strike the government's motion to dismiss (Dkt. No. 11) is hereby DENIED, and it is further
ORDERED that the motion for bail filed by Michael F. Murray on October 7, 2002, (Dkt. No. 17) is hereby DENIED, and it is further
RECOMMENDED, ALTERNATIVELY, AS FOLLOWS:
1. The District Court should treat Murray's § 2241 petition as a first petition, should convert it to § 2255 since § 2255 is neither inadequate nor ineffective, and should thereafter transfer the petition to the District of Massachusetts, thus denying the government's motion to dismiss; or,
2. The District Court should treat Murray's § 2241 petition as a first petition, should convert it to § 2255 since § 2255 is neither inadequate nor ineffective, should provide Murray no opportunity to withdraw his petition, and should grant the government's motion to dismiss since the petition is time barred because Apprendi is not retroactive to first petition cases on collateral review; and, it is further
ORDERED that the Clerk serve copies of this Decision, Order and Report-Recommendation upon the parties by regular mail.