Opinion
5:01-CV-0974(HGM)
June 3, 2002
EVAN ANTHONY QUINONES, Petitioner Pro Se 06309-052, United States Medical Center for Federal Prisoners Springfield, Missouri.
GRANT C. JAQUITH, AUSA, HON. JOSEPH A. PAVONE, United States Attorney for the Northern District of New York, Attorney for Respondent, Syracuse, New York.
MEMORANDUM — DECISION AND ORDER
Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct the sentence of imprisonment he received on February 20, 1998, in the United States District Court for the Northern District of New York. Petitioner pled guilty to conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846. He was sentenced to a period of 96 months imprisonment and three years of supervised release.
Petitioner appealed his conviction, arguing that the District Court failed to state "particularized reasons" for the sentence, failed to address specifically petitioner's downward departure requests, and may have misapprehended its authority to depart from the career offender guideline. The Court of Appeals found petitioner's contentions to be without merit and dismissed his appeal for lack of appellate jurisdiction. See United States v. Quinones, 182 F.3d 902 (2d Cir. 1999) (Table), 1999 WL 376819 (2d Cir. 1999).
Petitioner now moves under 28 U.S.C. § 2255 to vacate and set aside his sentence upon his claims that:
(1) The Court lacked jurisdiction to impose a career criminal offender enhancement;
(2) The Court lacked jurisdiction to impose punishment in violation of drug statutes;
(3) The Court lacked jurisdiction to impose punishment in violation of the United States Sentencing Commission Guidelines; and
(4) The Court lacked jurisdiction to impose increases beyond the prescribed statutory maximum.
Petitioner also claims that 21 U.S.C. § 841 is unconstitutional. All of petitioner's claims are based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
In Apprendi, the Supreme Court held that any factor that increases the penalty for a crime beyond the prescribed statutory maximum is an element of the offense rather than a mere sentencing factor and as such must be submitted to the jury and proven beyond reasonable doubt. See 530 U.S. at 489-90. Petitioner claims that imposition of 96 months of imprisonment was due to factors that should have been proven as elements of the offense under the standard articulated in Apprendi. As a result he seeks reduction of his sentence and supervised release term under the new due process standard.
Respondent argues that petitioner's contentions are without merit considering that his Apprendi-based argument has been procedurally defaulted because it was not properly raised at trial or on direct appeal. Where a defendant seeks a collateral relief on a ground not raised on appeal, the defendant must show both cause excusing his procedural default and actual prejudice. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). The Supreme Court has held that "the futility of presenting an objection . . . cannot alone constitute cause." Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Even if the law is against a contention, a party must make the argument to preserve it for later consideration. See Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The court will find a cause for excusing procedural default only where defendant has been impeded in his legal defense or where defendant had no reasonable basis for making a claim. See Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).
In the present case, petitioner does not contend that any outside forces impeded his legal defense in 1997. Furthermore, considering that foundation of Apprendi-type argument was laid as long ago as 1970, petitioner may not maintain that he lacked any reasonable basis for the claim he now brings before this court. Apprendi-type arguments were not so novel as to be unavailable to the defendant before the Supreme Court decision. Other defendants have been advocating such arguments since the Sentencing Guidelines came into being, and the Court, in McMillan, addressed an argument along similar lines. See McMillan v. Pennsylavania, 477 U.S. 79, 116 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In fact, the foundation of Apprendi reasoning has been laid as early as 1970 in In re Winship. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Moreover, before the Apprendi decision was announced, the petitioner could have relied upon the cases later cited in Supreme Court's Apprendi opinion to articulate an Apprendi-style argument for use in his direct appeal. Considering that petitioner does not claim that some outside force impeded his legal defense and considering that he failed to establish any cause for excusing his procedural default, the court need not consider the issue of prejudice and concludes that petitioner's default is not excusable. See Smith v. Murray, 477 U.S. at 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).
Petitioner may not assert an Apprendi-based argument not only because it is barred by the virtue of procedural default, but also because many circuits have already held that Apprendi does not retroactively apply to cases on collateral review. See McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 1001-02 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 151 (4th Cir 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000). Furthermore, the Second Circuit has stated, "to date, the Supreme Court has not offered any guidance on whether Apprendi has retroactive application to cases on collateral review. And this court has not yet ventured where the Supreme Court has thus far feared to tread." Santana-Madera v. United States, 260 F.3d 133, 141 (2d Cir. 2001). In the present case, since petitioner attacks his sentence retroactively on collateral grounds, he may not rely on Apprendi to buttress his argument.
Furthermore, the exception to the bar against collateral review articulated in Teague v. Lane is of no use to the petitioner. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the U.S. Supreme Court established that a new constitutional rule of criminal procedure will not constitute the basis for retroactive collateral review unless it places an entire category of conduct beyond the reach of statutory prohibition, forbids the use of certain punishment as applied to a specified class of defendants, or is essential to the fundamental fairness of the proceeding. Id. Apprendi did not decriminalize a category of conduct or prohibit imprisonment of drug conspirators. Furthermore, the shift of determination of drug quantity or other facts permitting imposition of the sentence above statutory prescribed maximums from the judge to the jury is not necessary to fundamental fairness of criminal proceeding. See 127 F.3d at 241. Therefore, petitioner's claim does not fall within Teague's exception and as such barred on the grounds of retrospective collateral review.
Even if the petitioner succeeded in convincing this Court that the standard articulated in Apprendi applied to his case, the petitioner would not be helped by Apprendi because his sentence is within the statutory limits. The Court of Appeals for the Second Circuit expressly stated that a sentence within the statutory maximum is unaffected by Apprendi. See United States v. Thomas, 274 F.3d 655, 673 (2d Cir. 2001) ("drug type and quantity may be used to determine the appropriate sentence so long as the sentence imposed is not greater than the maximum penalty authorized"); United States v. White, 240 F.3d 127, 136-37 (2d Cir. 2001) (" we read [Apprendi] to apply only when a sentencing court's findings increase the penalty faced by the defendant above the statutory maximum for a given count, and not merely when they affect the length of a sentence within a statutory range.").
In the present case, petitioner pled guilty to conspiracy to distribute heroin, in violation of U.S.C. § 846. Pursuant to 21 U.S.C. § 841(b)(1)(C) the maximum penalty for conspiracy to distribute any quantity of heroin is imprisonment for 20 years. Petitioner was sentenced to a 96 months, or 8 years, imprisonment, considerably less than the statutory maximum. Considering that petitioner's sentence is within the statutory prescribed maxims, his sentence is unaffected by Apprendi and petitioner's contentions are without merit.
Petitioner's motion is not only unaffected by Apprendi decision, but it is also barred by the gatekeeping provision of 28 U.S.C. § 2255. Section 105 of Title I of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 ("AEDPA"), signed into law on April 24, 1996, created a one year period of limitation in which petitioner is entitled to file a Section 2255 motion. The date on which the judgment of conviction became final triggers the running of one year limitation. 28 U.S.C. § 2255.
In the present case, petitioner's conviction became final once the U.S. Supreme Court denied his petition for a writ of certiorari on October 12, 1999. See United States v. Quinones, 528 U.S. 942, 120 S.Ct. 354, 145 L.Ed.2d 277 (October 12, 1999). Petitioner's § 2255 motion is dated June 8, 2001. Considering that petitioner made his motion well after the deadline set by the gatekeeping provisions of 28 U.S.C. § 2255 the motion is barred.
Petitioner's last contention that 21 U.S.C. § 841 is unconstitutional in the light of Apprendi is also without merit. Since Apprendi, the courts of appeals have consistently reaffirmed the constitutionality of 21 U.S.C. § 841. See United States v. Collazo-Aponte, 281 F.3d 320, 325 (1st Cir. 2002); United States v. Buckland, 277 F.3d 1173 (9th Cir. 2002); United States v. Kelly, 272 F.3d 622, 623 (3rd Cir. 2001); United States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2002); United States v. Woods, 270 F.3d 728, 729-30 (8th Cir. 2001); United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir. 2001).
Accordingly, for the reasons stated above, petitioner's § 2255 motion to vacate, set aside or correct his sentence of imprisonment is DENIED.