Opinion
Case No. 1:03-CR-73-01.
February 23, 2005
OPINION
This matter is before the Court on Defendant Amy Padilla's Motion for Relief from Judgment Pursuant to Federal Rule of Civil Procedure 60(b) or, in the alternative, for Relief Pursuant to 28 U.S.C. § 2255. Defendant requests relief under the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 124 S. Ct. 2531 (U.S. June 24, 2004), and, by implication, its more recent decision in Booker v. United States, 2005 WL 50108 (U.S. Jan. 12, 2005). Defendant pled guilty on May 12, 2003 to Conspiracy to Possess with Intent to Distribute 500 Grams or More of Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). On August 21, 2003, Defendant was sentenced to a custody term of 78 months. A Judgment and Committal issued on August 26, 2003. Defendant failed to timely appeal to the Sixth Circuit Court of Appeals. Defendant then submitted her section 2255 Motion with a Motion to Exceed Page Limitation on August 26, 2004. The Motion Exceed Page Limitation was later granted and this 2255 Motion was formally filed on September 1, 2004.
The Sixth's decision in Watson v. United States, 165 F.3d 486 (6th Cir. 1999) summarized the basic legal standards for relief under section 2255 as follows:
To prevail on a § 2255 motion alleging constitutional error, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-638, 113 S. Ct. 1710, 1721-1722, 123 L.Ed.2d 353 (1993). To prevail on a § 2255 motion alleging non-constitutional error, the petitioner must establish a "'fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (citing Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L.Ed.2d 417 (1962)).Id. at 488. Furthermore, relief under section 2255 is not intended to do service for an appeal. United States v. Timmreck, 441 U.S. 780, 784 (1979); see also Murr v. United States, 200 F.3d 895, 900 (6th Cir. 2000) (citing United States v. Frady, 456 U.S. 152, 164-67 (1982)).
Defendant has moved for relief under Federal Rule of Civil Procedure 60(b) and Section 2255. None of the Rule 60(b) subsections are applicable such that the Court will deny the request under Rule 60(b).
Regarding 28 U.S.C. § 2255, Defendant first argues that there was a violation of Apprendi and Blakely. Defendant did not file an appeal and, therefore, Defendant's claims of Apprendi and Blakely violations are procedurally defaulted. Even if those claims were not procedurally defaulted, the Court finds that there are no violations of Apprendi or Blakely, if applicable, as to the drug quantity, because at the sentencing hearing Defendant admitted to distributing, at a minimum, 27 kilograms of cocaine.
THE COURT: How many times did this happen between 2001 and 2003?
DEFENDANT PADILLA: The number of shipments?
THE COURT: Yes . . .
DEFENDANT PADILLA: Roughly maybe five or six times . . .
THE COURT: What were the quantities of cocaine being shipped from California to Michigan?
DEFENDANT PADILLA: . . . like the very first time it was only like three.
THE COURT: Three what?
DEFENDANT PADILLA: Three kilos of cocaine . . . [t]hen as time went on, it got up to . . . six and ten.
(Sen. Tr. 32-33; see also Sen. Tr. at 36.) Furthermore, 21 U.S.C. § 841(b)(1)(C) allows for a sentence of 240 months and Defendant was sentenced to a term of 78 months. Therefore, even if Defendant had not admitted the quantity above 500 grams of cocaine, no Apprendi violation occurred since the sentence did not exceed 240 months. See United States v. Murray, 59 Fed. Appx. 688, 689, 2003 WL 678672 (6th Cir. 2003) (unpublished).
While Defendant does not have a viable Apprendi or Blakely argument concerning drug quantity, she may have a viable Booker argument as to the two-level enhancement for possession of a dangerous weapon and the application of the guideline as mandatory guidelines. However, these arguments depend on a retroactive application of Booker.
Defendant seeks retroactive application of Blakely and, by implication, Booker to her case. Retroactivity is governed by the Supreme Court's decision in Teague v. Lane, 489 U.S. 288 (1989). Applying the Teague analysis in Goode v. United States, 305 F.3d 378, 382 (6th Cir. 2002), the Sixth Circuit held that the rule in Apprendi, the legal precedent which gave rise to the Blakely and Booker cases, would not be applied retroactively, consistent with the determination of other circuit courts of appeal.
Although the Court salutes the result of Booker as the child of the Blakely and Apprendi precedents, it remains difficult reading because the constitutionality portion (written by Justice Stevens) and the remedy portion (written by Justice Breyer) are not always logically consistent. Justice Breyer concludes the remedy portion by determining that the holding in Booker should apply, consistent with Griffith v. Kentucky, 479 U.S. 314, 328 (1987), to all cases on direct review at the time of the Booker decision. Booker, 2005 WL 50108, at *29. However, Justice Stevens' constitutionality opinion suggests, at least to some, that it is retroactive to the date of Apprendi since it is written as a straight-forward application of the rule in Apprendi to the United States Sentencing Guidelines. See Booker, 2005 WL 50108, at *15.
To make sense of these statements, the reader must remember two things. First, Justice Breyer's opinion was the remedy portion of the decision. Thus, since it was meant to control remedy by the Supreme Court, it is the best guidance on the extent of the retroactivity of remedies afforded by the decision. Second, Justice Breyer's analysis on retroactivity is far more specific than anything else that Justice Stevens says on the subject. As such, the Court determines from the Supreme Court's guidance that the Booker decision was intended to apply only to pending cases and cases on direct review at the time of the decision. This determination is also consistent with the opinions of the Seventh and Eleventh Circuits. See McReynolds v. United States, ___ F.3d ___, 2005 WL 237642 (7th Cir. Feb. 2, 2005) (holding that Booker does not apply retroactively to criminal cases which were final prior to the release of the Booker decision on January 12, 2005); Varela v. United States, No. 04-11725, ___ F.3d ___, 2005 WL 367095 (11th Cir. Feb. 17, 2005) (holding that Booker is not retroactively applicable to a case on collateral review). Since Defendant's case was not pending at the time of the Booker decision, she is not entitled to relief pursuant to 28 U.S.C. § 2255.
Such guidance is admittedly dicta since the Supreme Court did not have before it the question of applying its holding to other cases.
Having so determined, the Court must further determine whether to certify appealability pursuant to 28 U.S.C. § 2253 and the decision in Slack v. McDaniel, 529 U.S. 473, 475 (2000). Upon such review, the Court determines that reasonable jurists could find debatable whether the rule in Booker is one of the "watershed rules of criminal procedure" which should be applied retroactively. As such, and because this case presents this question, the Court will certify it for review as to the issue of retroactive application of Booker to a criminal case on collateral review. See Slack, 529 U.S. at 475 (citing Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
A Final Order consistent with this Opinion shall issue.