Opinion
CRIMINAL ACTION NO. 01-457-3
10-24-2018
UNITED STATES v. RICHARD POTTS
DuBois, J. MEMORANDUM
I. INTRODUCTION
This is a pro se motion for relief pursuant to the All Writs Act, 28 U.S.C. § 1651 and the common law writ of audita querela brought by a federal prisoner, Richard Potts ("defendant") (Document No. 791). The motion, filed on June 4, 2018, seeks a resentencing hearing and a recalculation of the $2.4 million forfeiture judgment against him in light of the Supreme Court decision in Honeycutt v. United States, 137 S. Ct. 1626 (2017). Defendant's motion is denied on the ground that the Supreme Court decision in Honeycutt does not apply retroactively to final forfeiture judgments, and defendant's conviction became final almost ten years before Honeycutt was decided.
II. BACKGROUND
A. Facts and Procedural History
On March 27, 2003, defendant was convicted of conspiracy to distribute cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. § 846, and murder in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e)(1)(A). He was thereafter sentenced to a term of life imprisonment. Defendant's sentence and conviction arise from his role in a large-scale cocaine and crack distribution organization. Specifically, defendant was "co-owner" of the organization's operation at the corner of Wardoff and Cambria streets in Philadelphia, Pennsylvania, for sixteen months. Defendant's conviction became final on December 25, 2007, when the time for seeking certiorari review expired. See Kapral v. United States, 166 F.3d 565, 570-72 (3d Cir. 1999). Defendant has also unsuccessfully filed motions for post-conviction relief.
A detailed history of the case is set forth in this Court's Order of May 18, 2016, denying pro se defendant's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(O).
At defendant's sentencing on July 16, 2003, the Court imposed a forfeiture judgment of $2.4 million based on the amount of money received by the street corner drug distribution organization over which defendant was co-owner. Defendant's current motion seeks relief from the $2.4 million forfeiture judgment on the ground that the forfeiture calculation relied upon a theory of joint and several liability rendered invalid in Honeycutt, issued on June 5, 2017—almost ten years after defendant's conviction became final.
Defendant filed his motion on June 4, 2018. The government responded on August 14, 2018, and defendant's reply was received on September 4, 2018. The motion is thus ripe for review.
III. APPLICABLE LAW
A. All Writs Act
Defendant seeks the remedy of the writ of audita querela under the All Writs Act. "The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute." Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009) (quoting Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985)). "The common law writ of audita querela permitted a defendant to obtain 'relief against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment.'" Id. (quoting United States v. Ayala, 894 F.2d 425, 427 (D.C. Cir. 1990)). Circuit courts have determined that common-law writs "can be used to the extent that they 'fill in the gaps' in post-conviction remedies." United States v. Henry, No. 06-33-02, 2014 WL 12716580, at *3 (E.D. Pa. Feb. 26, 2014) (quoting United States v. Hannah, 174 F. App'x 671, 673 (3d Cir. 2006)).
Because audita querela is an "extraordinary remedy," it is "appropriate only in compelling circumstances." See United States v. Georgiou, No. 09-88, 2018 U.S. Dist. LEXIS 102662, at *12 (E.D. Pa. June 19, 2018) (quoting United States v. Watkins, 440 F. App'x 643, 645 (10th Cir. 2011)); see also United States v. Zuckerman, 367 F. App'x 291, 294 (3d Cir. 2009); Rawlins v. Kansas, 714 F.3d 1189, 1193 (10th Cir. 2013) ("[A]udita querela, if available, must be brought on "legal" rather than "equitable" grounds. In other words, the petitioner must show something like an intervening change in law, rather than simply argue that the collateral consequences of the conviction have turned out to be unduly harsh." (internal citation omitted)). The writ of audita querela is only available "where the petitioner raises a (1) valid legal objection; (2) to a judgment that arises after that judgment is entered; and (3) that is not redressable by some other means." Muirhead v. Attorney Gen. of U.S., 262 F. App'x 473, 474 (3d Cir. 2008).
IV. DISCUSSION
In his Motion Pursuant to the All Writs Act 28 U.S.C. §1651, Audita Querela, defendant argues that the Honeycutt decision—which rendered invalid certain criminal forfeiture calculations based on joint and several liability—announced an intervening change in the law that should apply retroactively to his case in order to prevent a "serious miscarriage of justice." Def. Mot. All Writs Act 4. Defendant contends that the Court should grant relief in the form of resentencing and forfeiture recalculation because (1) Honeycutt presents a valid legal objection based on an intervening change in the law; (2) the change in law arose after defendant's judgment had been entered; and (3) defendant has no alternative means for redress.
As it must, the Court construes pro se defendant's Motion and Reply liberally. See United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969).
The Court notes that relief against a forfeiture judgment is not available under 28 U.S.C. § 2255 or 28 U.S.C. § 2241 in cases where a defendant only challenges a non-custodial forfeiture judgment. See United States v. Georgiou, No. 09-88, 2018 U.S. Dist. LEXIS 102662, *12 (E.D. Pa. June 19, 2018) ("Congress has not authorized a collateral attack on final forfeiture through either a motion to vacate under 28 U.S.C. § 2255 or a habeas corpus petition under 28 U.S.C. § 2241."); see also United States v. Ross, 801 F.3d 374, 380 (3d Cir. 2015) ("Our own precedent holds that the monetary component of a sentence is not capable of satisfying the "in custody" requirement of federal habeas statutes.").
The Court concludes that Honeycutt does not provide a ground for relief based on an intervening change in the law because defendant's conviction became final prior to the Honeycutt rule; and the Honeycutt rule does not apply retroactively to convictions that became final prior to its adoption. Thus, the Court denies defendant's motion for resentencing and recalculation of his forfeiture judgment.
A. Forfeiture Judgment in Light of Honeycutt
Defendant contends that in light of Honeycutt, he was ordered to forfeit "at least 1.5 million dollars in [ex]cess of the attributable amount actually acquired" in reliance on the overturned precedent set forth in United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999). Def. Mot. All Writs Act 3. In Honeycutt, the Supreme Court held that under 21 U.S.C. § 853, the criminal forfeiture statute governing narcotics offenses, a defendant may not "be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire." Honeycutt, 137 S. Ct. at 1630. Defendant contends that because the Court calculated his $2.4 million forfeiture judgment based on the total drug proceeds from the street corner drug distribution organization over which he was "co-owner," and the judgment included money received by his co-owner that defendant did not "acquire," the forfeiture judgment is invalid under Honeycutt. As a result, defendant urges the Court to recalculate the forfeiture judgment in order to determine the sum actually attributable to him under current precedent.
The Court rejects the applicability of Honeycutt pursuant to the Supreme Court decision in Teague v. Lane, 489 U.S. 288 (1989). In Teague, the Supreme Court held that "new . . . rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced," including cases under collateral review. Id. at 311. A rule is new if it "was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301 (emphasis in original). A new rule may apply retroactively in a collateral proceeding only if: (1) the rule is substantive, meaning that it "alters the range of conduct or the class of persons that the law punishes," Schriro v. Summerlin, 542 U.S. 348, 353 (2004); or (2) "the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Whorton v. Bockting, 549 U.S. 406, 416 (2007) (alteration in original) (quoting Teague, 489 U.S. at 311); see also Tyler v. Cain, 533 U.S. 656, 665 (2001). The Honeycutt rule is not subject to either exception.
This Court addressed the question of Honeycutt's retroactive applicability in United States v. Ortiz, No. 11-251-08, 2018 WL 3304522, at *8 (E.D. Pa. July 5, 2018), and concluded that Honeycutt announced a new rule and that it was not subject to either Teague exception that permitted retroactive application on collateral review of a final conviction:
The rule in Honeycutt was not dictated by existing precedent and constituted a new rule. Because Honeycutt was decided on June 5, 2017, after defendant's conviction became final, it is applicable to defendant's case only if it is subject to the "substantive" or "watershed rule" exceptions to Teague.
Neither of those exceptions applies to this case. The rule in Honeycutt is not substantive because it did not alter the range of conduct punished by federal law, but decided only whether joint and several liability could be imposed as a consequence of that conduct. Likewise, the Honeycutt rule is not a "watershed rule." The Supreme Court has stated that the decision in Gideon v. Wainwright, 372 U.S. 335 (1963), "illustrate[s] the type of rule coming within the exception" to Teague for watershed rules. The rule in Honeycutt merely clarifies the interpretation of a criminal forfeiture statute, falling
well short of the Gideon benchmark. Teague thus bars application of Honeycutt to this case.Ortiz, No. 11-251-08, 2018 WL at *8 (internal citations omitted).
The Ortiz analysis applies to the present case. Defendant's conviction became final almost ten years prior to the June 5, 2017 Honeycutt decision, and Honeycutt announced a new rule. Under Teague, the new Honeycutt rule could be applied to defendant's case only if it was subject to the "substantive" or "watershed rule" exceptions. However, the rule announced in Honeycutt is not substantive because it did not alter the range of conduct punished by federal law, and is not a watershed rule because it merely clarifies the interpretation of a criminal forfeiture statute. The Court thus concludes that Honeycutt announces a new rule that is neither "substantive" nor "watershed," and Teague bars the application of Honeycutt to this case. Ortiz, 2018 WL 3304522, at *8; see also United States v. Filice, No. 13-8-11, 2018 WL 2326616, at *3 (E.D. Ky. May 22, 2018) (holding that the Honeycutt rule does not apply retroactively because it is not a substantive or watershed rule of criminal procedure); United States v. O'Neal, No. 3:08-00107, 2018 WL 3543050, at *2 (E.D. Tenn. July 23, 2018) (same).
Because Teague does not permit a collateral attack on the final forfeiture judgment against defendant based on the Honeycutt decision, defendant has not provided a valid legal objection as required for a writ of audita querela under the All Writs Act. As such, the Court declines to extend the "extraordinary remedy" of audita querela to defendant. See United States v. Georgiou, No. 09-88, 2018 U.S. Dist. LEXIS 102662 at *5, 13 ("[N]either Congress nor the Federal Rules of Criminal Procedure provide such a basis for collateral review of a final order of forfeiture, and we do not want to overstep by creating such an avenue through applying the extraordinary writ of audita querela.").
The Court's decision to not extend the writ of audita querela is bolstered by numerous post-Honeycutt cases holding that there is no legal basis for disturbing a final order of forfeiture based on Honeycutt. See United States v. Alquza, 722 F. App'x 348, 349 (4th Cir. 2018); United States v. Yancey, 707 F. App'x 342, 344 n.1 (6th Cir. 2017); United States v. Purify, No. 13-00028-29, 2017 WL 4875296, at *2 (N.D. Okla. Oct. 25, 2017).
Finally, this Court's decision is consistent with the reasoning in United States v. Crews, No. 2:10-00663 (ECF Document No. 628). The Crews court granted a defendant's motion for reconsideration of a final forfeiture judgment brought under the All Writs Act in light of the Honeycutt decision. However, the Crews court explicitly distinguished its decision from prior cases on the ground that the forfeiture order in Crews "had been final only for a term of months, not years, before Honeycutt was decided." Id. In contrast, defendant's conviction in this case was final for nearly ten years when Honeycutt was decided. Thus, even under Crews's reasoning, disturbing a final order of forfeiture through a writ of audita querela would be inappropriate in the present case.
In light of the Court's ruling that defendant does not provide a valid legal objection based on the Honeycutt decision, the Court does not address the remainder of the government's arguments. --------
V. CONCLUSION
Because defendant's conviction became final prior to the Honeycutt decision, and Honeycutt announces a new rule not subject to the substantive or watershed rule exceptions under Teague, defendant has not provided a valid legal objection to his final forfeiture judgment. Accordingly, defendant's motion is denied. An appropriate Order follows.