Opinion
EP-05-CA-0308-DB, EP-02-CR-1700-DB.
August 12, 2005.
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Jose Pascasio-Manuel's ("Pascasio") Motion to Vacate pursuant to 28 U.S.C. § 2255, filed on August 9, 2005. After review, the Court finds that Pascasio's claims are time-barred and that he is not entitled to equitable tolling. Alternatively, his claim is without merit. Accordingly, the Court concludes that his Motion to Vacate should be denied and this matter dismissed with prejudice. The Court will additionally decline to certify his issue for appeal. I. BACKGROUND PROCEDURAL HISTORY A. Criminal cause no. EP-02-CR-1700-DB
On October 23, 2002, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Pascasio, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government duly filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), due to Pascasio's prior aggravated felony conviction. Pascasio, deciding to forego trial, pleaded guilty to the Indictment on January 21, 2003. The Court accepted the plea on February 6, 2003 and set the matter for sentencing. The Court entered Judgment on March 18, 2003, sentencing Pascasio to a 57-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Pascasio to pay a $100 special assessment.
Pascasio timely appealed, arguing that the prior conviction used to increase his sentence is an element of a separate offense under 8 U.S.C. § 1326 and should have been alleged in the Indictment. Because it was not included in the Indictment, he argued, his sentence therefore exceeded the 2-year maximum term of imprisonment that may be imposed for that offense. He acknowledged that the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), foreclosed his argument, but asserted that the Supreme Court's later holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), had cast doubt on the continuing viability of Almendarez-Torres. He therefore sought to preserve his claim for review. The Fifth Circuit Court of Appeals rejected his argument and affirmed the judgment on August 20, 2003, stating that Apprendi had not overruled Almendarez-Torres, which held that: (1) the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, rather than elements of a separate offense, and therefore need not be alleged in the indictment; and (2) the sentencing provisions of § 1326(b) do not violate due process. It further stated that, unless and until the Supreme Court itself chose to overrule its holding, the Court of Appeals was obliged to abide by Almendarez-Torres. The Supreme Court denied Pascasio's petition for a writ of certiorari on January 12, 2004.
B. Pascasio's Motion to Vacate pursuant to 28 U.S.C. § 2255
The Court has read Pascasio's Motion to Vacate liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). The Court understands him to re-urge the arguments he presented on direct appeal in light of the Supreme Court's holding in United States v. Booker, ___ U.S. ___ 125 S. Ct. 738 (2005) (" Booker").
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
Gaudet, 81 F.3d at 589.
Id.
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for summary dismissal and cause the movant to be notified." USCS § 2255 Proc. R. 4(b) (2004).
III. BOOKER'S RETROACTIVITY AND TIMELINESS UNDER THE ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
For the reasons discussed below, the Court concludes that Booker does not apply retroactively to already-final judgments and therefore Pascasio's claim is untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA").
A. Booker's holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised the provision of the federal sentencing statute making it mandatory for district courts to apply the Sentencing Guidelines. While the district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Retroactivity of new rules announced by the Supreme Court of the United States
See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).
Booker, ___ U.S. at ___, 125 S. Ct. at 748.
See Booker, ___ U.S. at ___, 125 S. Ct. at 748; see also 18 U.S.C. § 3553(b)(1).
See Booker, ___ U.S. at ___, 125 S. Ct. at 757; see also 18 U.S.C. § 3553(a).
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final. New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Schriro v. Summerlin, 542 U.S. 348, ___, 124 S. Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2522.
Id.
Id.
Id. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively, because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id.
Id. (internal quotation omitted).
Id. (internal quotation omitted).
Id.
A district judge may determine whether a new decision of the Supreme Court applies retroactively and thus whether a collateral attack pursuant to 28 U.S.C. § 2255 is timely under 28 U.S.C. § 2255 ¶ 6(3). C. Booker represents a new procedural rule that is not retroactive to cases on collateral review.
Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001); see also Wiegand v. United States, 380 F.3d 890, 892-93 (6th Cir. 2004) (stating that the district court should decide retroactivity in a first instance); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) ("Every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255 ¶ 6(3).").
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although "the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart."
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; see Guzman v. United States, No. 03-2446, ___ F. 3d ___, ___, 2005 WL 803214, *1, 2005 U.S. App. LEXIS 5700, *3 (2d. Cir. Apr. 8, 2005) (holding that Booker is not retroactive and does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
Schriro, 542 U.S. at ___, 124 S. Ct. at 2526.
In sum, this Court, in keeping with every circuit court of appeals to decide the issue, concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, petitioners whose judgments became final before January 12, 2005 may not claim relief pursuant to Booker. D. Because the rule announced in Booker does not apply retroactively to cases on collateral review, any claim Pascasio wishes to raise based on Booker or any other legal theory is time-barred.
See Lloyd v. United States, No. 04-cv-03687, ___ F.3d ___, ___, 2005 WL 1155220, 2005 U.S. App. LEXIS 8699 (3rd Cir. May 17, 2005); Guzman, ___ F. 3d ___, ___, 2005 WL 803214, at *1, 2005 U.S. App. LEXIS 5700, at *3; United States v. Price, 400 F.3d at 845; Humphress, 398 F.3d at 856; Varela, 400 F.3d at 868; McReynolds, 397 F.3d at 481.
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
In the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress established a one-year limitation period for filing a motion to vacate sentence pursuant to § 2255. The AEDPA added a specific period of limitation provision governing motions to vacate, set aside or correct sentences, which states:
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;
(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.A. § 2255 ¶ 6 (West Supp. 2004).
The AEDPA thus describes four different events which could trigger the limitations period. Because this Court has determined that the rule announced in Booker does not apply retroactively to convictions on collateral review, the relevant time, for purposes of Pascasio's claim, is the date on which his Judgment became final.
See 28 U.S.C. § 2255 ¶ 6(1) (stating that the statute of limitations begins to run on the date that judgment becomes final); compare 28 U.S.C. § 2255 ¶ 6(3) (stating that the limitations period begins to run on the date that the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized and made retroactively applicable to cases on collateral review).
Here, Judgment became final on January 12, 2004, the date on which the Supreme Court denied his petition for a writ of certiorari. Pascasio therefore had until January 12, 2005 to file a Motion to Vacate pursuant to 28 U.S.C. § 2255. Pascasio, however, could not have filed his Motion to Vacate any earlier than August 5, 2005, the date on which he signed it. His Motion to Vacate is thus untimely by approximately seven months.
IV. EQUITABLE TOLLING A. Legal Standard
The AEDPA's one year statute of limitations is not jurisdictional and is thus subject to equitable tolling. Equitable tolling, however, is justified only in rare and exceptional circumstances. It is warranted only in situations where a petitioner is actively misled by the respondent or is prevented in some extraordinary way from asserting his rights. "The decision to invoke equitable tolling is left to the discretion of the district court" and reviewed only for an abuse of discretion.
See Cousin v. Lensing, 310 F.3d 843, 847-8 (5th Cir. 2002); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000).
See Cousin, 310 F.3d at 848.
See Salinas v. Dretke, 354 F.3d 425, 429 (5th Cir. 2004), cert. denied, ___ U.S. ___, 124 S. Ct. 2099 (May 3, 2004).
Cousin, 310 F.3d at 848.
"Whether [a criminal defendant] had effective assistance on direct appeal in state court is not relevant to the question of tolling the AEDPA's statute of limitations. A criminal defendant has a right to effective assistance of counsel on a first appeal as of right. An alleged violation of that right does not toll the AEDPA's statute of limitations." "[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified."
Molo, 207 F.3d at 775.
Cousin, 310 F.3d at 849.
Moreover, a petitioner's "claims of innocence do not preclude the dismissal of his petition as untimely." "A petitioner's claims of actual innocence are relevant to the timeliness of his petition if they justify equitable tolling of the limitations period. We have previously held that they do not." Similarly, a petitioner's ignorance or mistake is insufficient to warrant equitable tolling. B. Discussion
Id.
Id.
Id.
Insofar as Pascasio asserts that he could not previously file claims based on Booker because that case were not decided until January 12, 2005, the Court finds his argument unavailing. As discussed above, this Court concludes that Booker is not retroactive to judgments (such as Pascasio's) that were already final before that opinion's release. Therefore, even if this Court were to find that it should equitably toll the statute because the basis for the claim was not available until after the one year limitations period expired, Pascasio's claim would still be subject to summary dismissal. Any relief that Booker might otherwise provide would not apply retroactively to his already final judgment.
The Court notes that Booker would not, in fact, afford Pascasio any relief from his sentence. Booker extended the rule of Apprendi, which carves out a specific exception for prior convictions. See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 748 (2005) (" Other 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.").
The Court further finds that Pascasio has failed to demonstrate that he relied to his detriment on any affirmative, but incorrect representation by the Court, or that any party obstructed his attempts to obtain habeas relief. The Court therefore concludes that Pascasio has not shown, as it is his burden to do, that he is entitled to equitable tolling of the AEDPA's limitations period. The Court will accordingly dismiss his claims with prejudice as untimely.
See Cousin, 310 F.3d at 849.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Pascasio's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claim for relief.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Jose Pascasio-Manuel's Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Jose Pascasio-Manuel's Motion to Vacate, Set Aside, or Correct Sentence, filed on August 9, 2005, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Jose Pascasio-Manuel is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order denying Petitioner Jose Pascasio-Manuel's Motion to Vacate, Set Aside or Correct Sentence, filed on August 9, 2005, pursuant to 28 U.S.C. § 2255. The Court further denied Petitioner a Certificate of Appealability regarding his claim. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. Accordingly,IT IS ORDERED that Petitioner Jose Pascasio-Manuel's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS ALSO ORDERED that Petitioner Jose Pascasio-Manuel is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions in this cause, if any, are DENIED AS MOOT.