Opinion
Civil No. 04-1834(PG), Criminal No. 00-358 (PG).
May 24, 2005
REPORT AND RECOMMENDATION
INTRODUCTION
On August 10, 2004, above petitioner filed a motion and affidavit in support of a 28 U.S.C. § 2255 petition seeking to vacate his sentence after he had entered a change of plea in Criminal No. 00-358 ( Civil No. 04-1834, Docket No. 1). Petitioner was charged in a one (1) count Indictment along with other eighteen (18) co-defendants, with conspiracy to possess with intent to distribute in excess of one (1) kilogram of heroin, an excess of five (5) kilograms of cocaine, and in excess of one hundred (100) kilograms of marihuana, narcotic drug controlled substances ( Criminal No. 00-358, Docket No. 2). Petitioner, thereafter, entered into a plea agreement and was held accountable for at least four hundred (400) but less than seven hundred (700) grams of heroin. He was sentenced to a term of imprisonment of eighty four (84) months, a supervised release term of six (6) years and a special monetary assessment of one hundred dollars ($100.00). The term of supervised release was modified upon re-sentencing on September 5, 2003, to five (5) years. ( Criminal No. 00-358, Docket No. 479).
On January 10, 2005, the § 2255 petition was referred to this Magistrate Judge for report and recommendation. ( Civil No. 04-1834, Docket No. 6).
Petitioner submits in his § 2255 petition that in light of the Unites States Supreme Court in Blakely v. Washington andApprendi v. New Jersey his sentence was imposed in violation of the Sixth Amendment of the United States Constitution since it was based upon facts which were not established by the jury's verdict nor admitted by him. In particular, petitioner objects to the enhancement portion of his sentence. He also claims theBlakely decision issued on June 24, 2004, is contrary to the decision of this sentencing court of August 31, 2001, for which reason the Supreme Court's decision constitutes extraordinary circumstances providing sufficient grounds to file this § 2255 motion. As a result thereof, the three (3) level enhancement imposed by the sentencing court was an error. Petitioner also claims that counsel was ineffective for failing to raise this issue on appeal.
Although petitioner was re-sentenced on September 5, 2003, the proceedings were limited to correct the term of supervised release originally imposed. The one page transcript of this re-sentence would not allow further discussion on the sentencing court's position at that time (Criminal No. 00-358, Docket No. 496).
PROCEDURAL BACKGROUND
On July 5, 2000, petitioner was indicted, together with eighteen (18) co-defendants, in a one count Indictment with conspiracy to possess with intent to distribute controlled substances, as prohibited by Title 21, United States Code 841(a)(1), in violation of 21 U.S.C. § 846.
21 U.S.C. § 846. Attempt and conspiracy
Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
On April 19, 2001, petitioner entered a plea of guilty pursuant to a government's plea to the drug conspiracy. The Rule 11 hearing was entertained by the Court. On August 31, 2001, petitioner was sentenced to a term of imprisonment of eighty four (84) months, a supervised release term which was subsequently amended to five (5) years, and a special monetary assessment of one hundred dollars ($100).
LEGAL ANALYSIS
I. The § 2255 petition is not time barred.
Time-barred under the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA) refers to the amendment provided for filing of Section 2255 motions.
One must decide when a conviction becomes "final" under § 2255(1) where, as here, the prisoner opted not to seek direct appeal to his conviction nor a writ of certiorari review in the Supreme Court; compare United States v. Torres, 211 F.3d 836, 839-40 (4th Cir. 2000) ( holding that conviction becomes final when court of appeals' mandate issues), and Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998) (same), with United States v. Garcia, 210 F.3d 1058, 1060-61 (9th Cir. 2000) (holding that conviction becomes final when time for seeking certiorari expires), United States v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000) (same), United States v. Burch, 202 F.3d 1274, 1279 (10th Cir. 2000) (same), and Kapral v. United States, 166 F.3d 565, 571 (3d Cir. 1999) (same). Trenkler v. United States, 268 F.3d 16, 22 (1st Cir. 2001).
Petitioner herein did not seek an appeal after he was re-sentenced on September 12, 2003. As such, the term under AEDPA for filing this § 2255 starts the one year period when the ninety day period for seeking certiorari from the United States Supreme Court expired; see Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072 (2003) (discussing finality for purposes of post-conviction relief); see also Neverson v. Farquharson, 366 F.3d 32, 36 (1st Cir. 2004) the one-year limitations period under AEDPA began; Donovan v. Maine, 276 F.3d 87, 91 (1st Cir. 2002) ("[S]ection 2244(d)(1) provides for tolling during the ninety-day period in which the petitioner would have been allowed to ask the United States Supreme Court to grant certiorari to review the [state court's] denial of his direct appeal (the fact that the petitioner did not seek certiorari is immaterial)."). Nowaczyk v. Warden, New Hampshire State Prison 299 F.3d 69, 71 (1st Cir. 2002).
The record clearly shows judgment wherein petitioner was resentenced, although held on September 5, 2003, was entered on September 12, 2003, modifying the term of supervised release to five (5) instead of six (6) years. (Criminal No. 00-358, Docket No. 479).
The herein petition was filed on August 10, 2004, within the one-year period allowed by AEDPA and is thus timely.
II. The Blakely / Booker Claims are not retroactive for collateral relief.
Blakely v. Washington, 542 U.S., 124 S.Ct. 2531 (2004).
United States v. Booker, 543 US ___, 125 S.Ct. 738 (2005) and United States v. Fanfan, 543 US ___, 125 S.Ct. 738 (2005).
Although petitioner raises his claim under Blakely v. Washington and the government's response discusses same is inapplicable, it would be more appropriate to discuss the application of the Federal Sentencing Guidelines under Booker and Fanfan, as being the most recent decisions of the United States Supreme Court on this matter upon making the federal sentencing guidelines advisory. For this reason, Blakely has no longer effect as to federal sentencing.
Blakely claims are now viewed through the lens of United States v. Booker. See Ernesto Cirilo Muñoz v. U.S., slip op. No. 02-1846 (1st Cir. April 15, 2005).
The retroactive effect of Booker, in establishing a new rule about the federal Sentencing Guidelines, was not addressed by the Supreme Court, covering solely those cases which were not final when the decision was issued on January 12, 2005. Booker 125 S.Ct. at 769; see McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005) (Booker does not apply retroactively to criminal cases that became final before its release); cf. United States v. Hughes, 2005 WL 147059 (4th Cir. 2005) (enhancement factors for sentencing used by court not jury although correct under the Guidelines allowed for re-sentencing after Booker). See also United States v. Richard J. Schneiderhan, 2005 WL 845167, slip op. No. 03-2019 (1st Cir. April 13, 2005) (plain error standard applied to determine if defendant would be entitled to remand for resentence); United States v. Mackinnon, ___ F.3d ___, 2005 WL 605031, slip op. No. 03-2219 (1st Cir. March 16, 2005) (The principles announced in Booker apply to all cases pending on direct review); United States v. Sahlin, 399 F.3d 27 (1st Cir. 2005) (Booker provides no basis to vacate the entry of a pre-Booker guilty plea); United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005).
In any event, under Blakely the arguments raised would still not be considered to favor petitioner since, on one hand the Supreme Court had not extended Blakely's holding to the federal sentencing guidelines and on the other hand, even if the Court would apply Blakely to the federal guidelines, Blakely does not apply retroactively to initial § 2255 motions for collateral relief.
Thus, no retroactive effect is applicable to this case on collateral review.
III. Unpreserved Booker-Fanfan claims.
The argument that a Booker error occurred would be preserved if the defendant below argued Apprendi or Blakely error or that the Guidelines were unconstitutional. This is broader in scope than the argument that the mandatory Guidelines system was unconstitutional. Generally, there is no Booker argument if the sentence imposed was a statutory mandatory minimum sentence resulting from facts found by a jury or admitted by the defendant. Antonakopoulos, 399 F.3d at 76. Only in limited circumstances do new rules apply to convictions that have already become final. Schriro v. Summerlin, 124 S.Ct. 2519, 2522 (2004). See Cirilo Muñoz v. U.S.
Apprendi v. New Jersey, 530 US 466, 120 S.Ct. 2348 (2000). The Court of Appeals for the First Circuit have already decided that Apprendi would not apply retroactively and Booker does not give any clear hint that retroactive effect is intended. Cirilo-Múnoz v. U.S.
The applicable framework for review of unpreserved Booker claims appears in Antonakopoulos, 399 F.3d at 74 pursuant to the four-prong test established in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993), to wit; there must be (1) an error (2) that is plain, and it (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings. The first two (2) prongs of the plain error test are met whenever the district court treated the Guidelines as mandatory at the time of sentencing. Id. But to meet the third prong of the test, the defendant must persuade us that there is a "reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." Id. "[I]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice under plain-error analysis." Id. at 77 (citations and internal quotation marks omitted). See United States v. Serrano-Beauvaix, 400 F.3d 50 (1st Cir. 2005).
The record does not show petitioner preserved the issues, for which reason we will need to discuss whether petitioner has met his burden under the third prong enunciated in Antonakopoulos in that there is a reasonable probability he would be sentenced more leniently under an advisory Sentencing Guideline system.
Petitioner submits the sentencing court's determination as to facts not reflected in his plea as to the supervisory role in the offense violated Blakely and/or Apprendi, wherein the Supreme Court held as a matter of constitutional law that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," 530 U.S. at 488. Thus, the due process clauses of the Fifth and Fourteenth Amendments make the jury the proper decision maker and the reasonable doubt standard is the proper burden, when a fact raises the maximum lawful punishment. Id. This is only applicable in situations where "the judge-made factual determination increased the maximum sentence beyond the statutory maximum, and not in situations where the defendant's potential exposure is increased within the statutory range." United States v. Baltas, 236 F.3d 27, 40 (1st Cir. 2001).
The record shows, nevertheless, that the applicable guideline range considered by the Court and as shown by the Presentence Report fluctuated from seventy eight to ninety seven (78-97) months of incarceration as to this petitioner. At the time of sentencing, defense counsel emphasized to the Court the leader of the group within the conspiracy charged was sentenced to seventy two (72) months, lower than the sentence thereafter imposed on this petitioner who was considered solely with a supervisory not a leadership role in the offense. (Transcript 8-31-2001, p. 5). In addition, petitioner had no prior criminal history, had sustained an harmonious and stable relationship with his wife and assisted in raising her two young children from a prior relationship, had been employed prior to his arrest and would continue to be supported emotionally by his mother and acquaintances throughout his legal predicament. See Presentence Report ¶ 25-27.
On the other hand, at the time of sentencing, the Court expressed its view that although petitioner was a first offender, held a supervisory with managerial role and had other people involved in drug trafficking, for which a sentence at the middle part of the guideline range served the objectives of punishment and deterrence. (Transcript 8-31-2001, p. 8) These facts go directly to the three (3) level supervisory role increase. When addressed by defense counsel as to reconsider imposing the middle range of the sentencing guideline ( Id. at 10), the Court clarified it had to take into consideration that petitioner at the time of the offense was dealing with children making it cautious as to the real purpose to deal with those children and being very active in the community; of living a double life, and sentencing not so much because of his supervisory role but because he got other people, including his immediate family, involved in narcotic activities ( Id. 11). Above considerations would be consonant with the Court of Appeals for the First Circuit having recently reiterated reasonable probability needs to be established by a § 2255 petitioner in that the district court would impose a more favorable sentence under the new advisory regime. United States v. Flor de Maria Cacho-Bonilla, slip op. No. 02-1393 (1st Cir. April 14, 2005). Notwithstanding, the sentencing court should be free to re-examine the sentencing factors and divert from its prior ruling in the wave of caution.
"Nothing is more damaging to a new truth than an old error." Goethe, Spruche in Prosa, n. 13 Cirilo Muñoz v. U.S.
Thus, petitioner has not established there is a likelihood that post-Booker, he would be sentenced more leniently. See United States v. Beauvaix; cf. Mackinnon (the sentencing court criticized the government's decision to file an § 851 information and considered the sentence policies applicable under the Guidelines to be unjust and excessive and granting no authority to for leniency). As such, it would be most difficult to elucidate how a sentencing court might have sentenced a defendant under the regime now established by Booker.
Although the above discussed grounds may be considered to be without legal merit, still, the sentencing court's discretionary power cannot be taken lightly as foreclosing all avenues of reconsideration under this § 2255 petition.
The sentencing judge in the instant case may revisit this issue on leniency when considering this Magistrate Judge's report and recommendation, as to which petitioner will have an opportunity to submit timely objections. See cases cited inUnited States v. Serrano-Beauvaix,; United States v. Hughes, 396 F.3d 374, 381 n. 8 (4th Cir. 2005); United States v. Oliver, 397 F.3d 369, 380 n. 3 (6th Cir. 2005) ( quoting United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781 (2002)); United States v. Rodríguez, 398 F.3d 1291, 1301 (11th Cir. 2005).
IV. Ineffective Assistance for failure to appeal enhancement.
The claim of ineffective assistance of counsel should first address this petitioner's non-compliance with the requisites in Strickland v. Washington.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 2068 (1984).
The legal standard applicable to the above-captioned petition is pellucidly clear. Petitioner must show both that counsel's performance fell below an objective standard of reasonableness and that prejudice resulted. Strickland v. Washington, 466 U.S. at 687. See also López-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990). Counsel's performance must be examined "not in hindsight, but based on what the lawyer knew, or should have known, at the time his tactical choices were made and implemented." United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1992). The "range of reasonable professional assistance" is quite wide. See Strickland, 466 U.S. at 689. Therefore, as the Supreme Court has noted, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id.
Pursuant to Strickland v. Washington, 466 U.S. at 688 counsel's performance is ineffective only if it was objectively unreasonable under prevailing professional norms. In light of the circumstances, petitioner is required to identify acts or omissions by counsel which need to be outside the wide range of professional competent assistance. At the time of defendant's charges and sentencing, there was no hindsight that Blakely and subsequently Booker and Fanfan, would change the vision on the application of the federal Sentencing Guidelines, its policies and other considerations.
From a perusal of the criminal record, the Rule 11 transcript, and the sentencing proceedings, this Magistrate Judge cannot find that defense counsel's performance was unreasonable, there being no need for additional factual determinations to be made which would require an evidentiary hearing related to contentions in the § 2255 petition.
In Blakely, the Supreme Court held the Sixth Amendment right to trial by jury was violated by imposition of a sentence above the "statutory maximum of the standard range" in the State of Washington's sentencing guidelines, because the sentence enhancement was based on aggravating facts which were determined by judicial, rather than jury fact finding. As such, the Sixth Amendment is deemed violated by imposition of a sentence greater than "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . [T]he relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Thus, the Sixth Amendment is violated by judicial fact finding of facts germane to the application of a sentence enhancement. However, Blakely also asserts the Sixth Amendment is not violated if the defendant admits or stipulates to the facts germane to application of the sentence enhancement and further instructs nothing prevents the defendant from waiving his right to a jury trial of sentence enhancements.
Post Blakely, however, various courts have ruled all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. See United States v. Pérez, 338 F.Supp.2d 154 (D. Me. 2004); see also United States v. Rivera-Calderón, 354 F.Supp.2d 86, 2005 WL 188853 (D.P.R. 2005).
Petitioner in this case did not go to a trial by jury but instead made a change of plea pursuant to a Plea Agreement ("the Agreement"). The Agreement included a Statement of Facts, which was signed by petitioner and his counsel, wherein petitioner acknowledged he was included as having a manager and/or supervisory role in the sale of heroin at the Agustin Stahl Public Housing project. Transcript 4-12-2003, pp. 13-14. See Presentence Report ¶ 4.
Thus, petitioner admitted in the Agreement and the statement of facts attached thereto, as well as during the Rule 11 colloquy, his supervisory role in the offense. The district judge ascertained petitioner understood and agreed to the representations during the Rule 11 colloquy.
Petitioner nor his counsel objected to the Probation Office's Presentence Report, which made reference to such supervisory/manager's role (Transcript 8-31-2001, pp. 3-4).
When a defendant pleads guilty or nolo contendere to a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will . . . agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
As to the underlying issue of compliance with the Rule, "[o]n a plea, the question under Rule 11(f) [now Rule 11(b)(3)] is not whether a jury would, or even would be likely, to convict: it is whether there is enough evidence so that the plea has a rational basis in facts that the defendant concedes or that the government proffers as supported by credible evidence." United States v. Gandía-Maysonet, 227 F.3d 1, 6 (1st Cir. 2000).
Counsel was not bound to present on appeal frivolous claims or those lacking merit. Facing a voluntary, knowing and complete plea, wherein it was acknowledged all elements of the offense, its consequences and the government's version, including petitioner's supervisory role, there is no ground for ineffectiveness.
In view of the foregoing, it is recommended that the § 2255 petition be DENIED.
A hearing on petitioner's motion is not required in this case. A hearing on petitioner's motion would be required "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts, 28 U.S.C. § 2255.
Succinctly, a petition can be dismissed without a hearing if the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or if the allegations cannot be accepted as true because "they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990) ( quoting Myatt v. United States, 875 F.2d 8, 11 (1st Cir. 1989)). See United States v. Rodríguez-Rodríguez, 929 F. 2d 747, 749-50 (1st Cir. 1991); United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993).
As discussed herein above, petitioner has not established merits to his post-conviction motion. Accordingly, petitioner is not entitled to an evidentiary hearing.
CONCLUSION
Accordingly, it is recommended that petitioner's § 2255 motion for post-conviction relief be DENIED.IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").