Opinion
99 Civ. 10272 (RWS).
December 15, 2000.
LINDA S. SHEFFIELD, ESQ. Attorney for Petitioner Decatur, GA.
HONORABLE MARY JO WHITE United States Attorney for the Southern District of New York Attorney for Respondent New York, N.Y. DAVID C. ESSEKS, ESQ. Assistant US Attorney Of Counsel.
OPINION
Petitioner Kwok Ching Yu ("Yu") has moved that the Court consider his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 although it is barred as successive pursuant to 28 U.S.C. § 2255. The Government opposes the motion. For the reasons set forth below, the motion to consider the petition on the merits is granted in part and denied in part.
Prior Proceedings
The facts and prior proceedings in this action are set forth in several opinions of this Court as well as the Court of Appeals, familiarity with which is presumed. See United States v. Yu, No. 93-1882 (2d Cir. Sept. 20, 1994); Kwok Ching Yu v. United States, No. 97 Civ. 2816 (RWS), 1998 WL 160964 (Apr. 7, 1998); United States v. Yu, 902 F. Supp. 464 (S.D.N.Y. 1995).
On December 4, 1990, Yu was indicted on seven counts of narcotics trafficking conspiracy charges, including a violation of 21 U.S.C. § 848, membership in a continuing criminal enterprise (CCE). This Court declared a mistrial on April 23, 1992, when the jury deadlocked near the end of the third week of the trial of Yu and his five co-defendants. His second jury trial resulted in Yu's conviction on all counts on December 15, 1992. Yu was found guilty of two counts of conspiracy to import heroin into the United States in violation of 21 U.S.C. § 846; two counts of conspiracy to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 963; being a principal administrator of a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (b); and two counts of importing heroin into the United States in violation of 21 U.S.C. § 812, 952, 960(a)(1), 960(b)(1)(A), and 18 U.S.C. § 2. Due to the large quantity of heroin involved, Yu was sentenced to a mandatory life term of imprisonment and five years of supervised release on December 3, 1993. See United States v. Yu, No. 90 Cr. 47 (RWS), 1993 WL 497985 (S.D.N.Y. Nov. 30, 1993) (sentencing opinion).
The December 4, 1990 charging instrument was the third superseding indictment, which charged Yu in Counts 1-7. However, due to an error in the Presentence Report, the judgment reflected the numbering from a previous instrument, which had charged Yu only in Counts 1, 2, 5, 6, 7, 8, and 9. Therefore, the Count numbers in the amended judgment vary from the count numbers as set forth in the superseding indictment and special verdict form. Despite this numerical discrepancy, the judgment did reflect the jury's verdict, as did the amended judgment that was issued on January 24, 2000, after the conspiracy counts were vacated. The charges will hereinafter be referred to by their third superseding indictment numbers, as follows: Count One: conspiracy to distribute heroin, 28 U.S.C. § 846; Count Two: conspiracy to import heroin, 28 U.S.C. § 963; Count Three: being a principal administrator in a continuing criminal enterprise (CCE), 28 U.S.C. § 848 (corresponding with "Count 5" in the Amended Judgment of Jan. 24, 2000); Count Four: importing heroin (correlating with "Count Six" in the Amended Judgment); Count Five: possession with intent to distribute heroin (corresponding with "Count Seven" in the Amended Judgment); Count Six: importing heroin (corresponding with "Count Eight" in the Amended Judgment); Count Seven: possession with intent to distribute heroin (corresponding with "Count Nine" in the Amended Judgment).
Yu appealed on December 10, 1993 on grounds including ineffective assistance of trial counsel, insufficient evidence, and prosecutorial misconduct. The Second Circuit affirmed his conviction in all respects on September 20, 1994. United States v. Yu, No. 93-1882, at 5 (2d Cir. Sept. 20, 1994). On December 21, 1994, the Court of Appeals denied Yu's petition for Rehearing and Suggestion for Rehearing En Banc.
Meanwhile, on June 21, 1995, Yu petitioned this Court to set aside the judgment pursuant to Rule 33, Fed.R.Crim.P., contending that information discovered at oral argument before the Court of appeals entitled him to a new trial. The "newly discovered evidence" on which Yu based his motion consisted of the Government's statement at the appellate argument that the testimony of Tony Wong ("Wong"), a co-conspirator, would have added nothing to the evidence provided by the Government at trial. According to Yu, this evidence refuted the inference at trial that Wong would have supported the co-conspirator's testimony. This Court denied the motion on October 26, 1995, and declined to issue a certificate of appealability. United States v. Yu, 902 F. Supp. 464 (S.D.N.Y. 1995).
Yu appealed the denial of his Rule 33 motion to the Second Circuit, which affirmed by summary order dated January 25, 1996 "for substantially the reasons stated by the District Court." United States v. Yu, 101 F.3d 1393 (2d Cir. 1996).
On April 21, 1997, Yu moved to vacate his conviction pursuant to 28 U.S.C. § 2255. Yu's motion raised five grounds for relief: (1) his dual conviction for conspiracy and participating in a continuing criminal enterprise (CCE) violated the Supreme Court's holding in Rutledge v. United States, 116 S.Ct. 1241, 1248 (1996); (2) the Government failed to disclose material exculpatory evidence; (3) the trial court improperly instructed the jury; (4) the prosecution conducted improper cross examination; and (5) prosecutorial misconduct during the trial summation. Yu filed a supplemental replacement memorandum of law on August 4, 1997. The Government was ordered to respond, and did so on October 31, 1997. Yu replied through counsel, and on April 7, 1998, this Court granted the motion in part by vacating the conspiracy convictions in Counts One and Two. See Kwok Ching Yu v. United States, No. 97 Civ. 2816 (RWS), 1998 WL 160964 (Apr. 7, 1998). An Amended Judgment reflecting the fact that the convictions on Counts One and Two had been vacated was issued on January 24, 2000. See Docket #142.
Yu filed a second motion pursuant to 28 U.S.C. § 2241(c)(3) and 2255 on October 5, 1999, raising the following grounds for relief: (1) the jury charge on the CCE count, Count Three, did not require the jury to agree unanimously on the specific violations making up the "continuing series of violations" in violation of the subsequent ruling in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707 (1999); and (2) the convictions on the remaining counts must be vacated under Rutledge because the jury was improperly instructed to consider all counts of the indictment as lesser-included offenses in finding the continuing series of violations necessary to convict on the CCE charge. This Court transferred the case to the Court of Appeals to determine whether the petition met the "gatekeeping" provision of § 2255. On April 28, 2000, the Second Circuit issued an order barring relief under § 2255 because the successive petition did not raise any claim of newly discovered evidence or turn on a new rule of constitutional law.
The memorandum in support of the petition stated that the remaining counts included Counts 2, 4, 5, 6, and 7. However, when Yu was resentenced, both conspiracy counts, Counts One and Two, were vacated pursuant to the April 7, 1998 opinion. See Kwok Ching Yu, No. 97 Civ. 2816 (RWS), 1998 WL 160964 (Apr. 7, 1998); Gov't Letter of Jan. 17, 2000 (stating that government does not object to vacating both conspiracy counts pursuant to Rutledge). Therefore, aside from the CCE charge in Count 3, the only remaining Counts are Counts 4, 5, 6, and 7, which charge Yu with two counts each of importing and possessing with intent to distribute heroin. See Amended Judgment of January 24, 2000 (Docket #142).
By letter of May 22, 2000, Yu requested that the Court consider the October 5, 1998 petition under 28 U.S.C. § 2241(c)(3), the other provision under which the petition had been filed. In a memorandum dated August 2, 2000, the Government argued that the motion was barred because Yu raised no claim sufficient to meet the standard for bringing a § 2241 petition after § 2255 motions are no longer available. Oral argument was heard by telephone conference on October 3, 2000, whereupon the motion was deemed fully submitted.
Discussion
I. Legal Standard for Reviewing § 2241 Motions After § 2255 Motions Have Been Foreclosed
Section 2255 of Title 28, United States Code includes a so-called "savings clause" providing that habeas relief remains available to a federal prisoner where § 2255 relief is "inadequate or ineffective to test the legality of [a prisoner's] detention." 28 U.S.C. § 2255; accord United States v. Hayman, 342 U.S. 205, 223, 72 S.Ct. 263, 274 (1952). Yu argues that, because he is procedurally barred from pursuing a § 2255 claim, § 2255 is "inadequate or ineffective to test the legality of his detention," and therefore § 2241 is still available.
In Triestman v. United States, 124 F.3d 361 (2d Cir. 1997), the Second Circuit addressed the possibility of § 2241 review in cases where § 2255 review was no longer available. While Triestman's petition for certiorari in his first § 2255 motion was pending, the Supreme Court handed down a new interpretation of the crime of carrying a firearm in connection with a drug trafficking offense, 18 U.S.C. § 924(c), one of the laws Triestman had been convicted of violating. See Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that "using" a firearm under § 924(c) requires "actively" employing it).
Two days after certiorari was denied, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, which amended § 2255 to bar second or successive habeas petitions under that section unless a court of appeals panel first certifies that the motion relates to:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255.
AEDPA also amended 28 U.S.C. § 2244, which relates to second and successive habeas corpus petitions.
Nine days after AEPA was enacted, Triestman filed a second motion raising the Bailey issue, arguing that he was innocent of the § 924(c) charge because he had not touched a weapon during the drug trafficking offense. The district court transferred the case to the Second Circuit to decide whether or not to certify the second petition under the new AEDPA provisions. The Second Circuit found that the petition did not pertain to newly discovered evidence or a new rule of constitutional law, and barred consideration under § 2255. However, the Court recognized that the possibility that no collateral review would be available for Triestman, who might be actually innocent but had been unable to prove it earlier due to the intervening holding, raised serious constitutional questions. As a result, the Court addressed the question whether relief via § 2241(c)(3) was still available pursuant to the aforementioned habeas-preserving language in § 2255.
While recognizing that the savings clause in § 2255 guaranteeing the availability of habeas "does not, of course, mean that habeas corpus is preserved whenever a federal prisoner faces a substantive or procedural barrier to § 2255 relief," the Triestman Court held that § 2241 review was still available in limited circumstances of "cases in which the petitioner cannot, for whatever reason, utilize § 2255, and in which the failure to allow for collateral review would raise serious constitutional concerns." Id., 124 F.3d at 377. Thus, § 2241 review is not available in every case where § 2255 review is unavailable, but is possible "in those extraordinary instances where justice demands it." Id., 124 F.3d at 378.
II. Analysis
A. CCE Conviction (Count 3)
Yu asserts that barring his § 2241 petition would raise serious constitutional concerns because, like Triestman, he was convicted based on an erroneous interpretation of a statute made clear by an intervening Supreme Court ruling, and now has no other means by which to assert his claim. Specifically, Yu contends that he is "procedurally innocent" of the § 848 charge (Count 3), and has a right to consideration of his claim by a jury that is properly instructed that it must make unanimous findings as to the "continuing series of violations" comprising the CCE violation, pursuant to Richardson. See Yu Reply at 3; Schlup v. Delo, 513 U.S. 298 (1995). See Yu Reply at 3; Schlup, 513 U.S. at 314 (recognizing that claim of innocence that is based upon ineffective assistance of counsel and prosecution's withholding of material exculpatory evidence is procedural rather than substantive, and therefore is a "gateway" to collateral review of defaulted claims rather than a constitutional claim in itself).
The Government disputes that this argument is sufficient to justify § 2241 review, citing the Supreme Court's definition of "actual innocence" in this context as "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). Moreover, the Government contends that no circuit court has yet considered a § 2241 petition under the savings clause of § 2255 where a petitioner raised a claim of procedural, rather than factual, innocence. See Charles v. Chandler, 180 F.3d 753, 757 (6th Cir. 1999) (per curiam) (citing Triestman, 124 F.3d at 377; In re Dorsainvil, 119 F.3d at 251-52; In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998)). However, seventeen months after the Charles decision was issued, the Fifth Circuit addressed the question in Jeffers v. Chandler, 99-41461, 2000 WL 1745129 (5th Cir. Nov. 19, 2000), construed a Richardson unanimity claim as one for "actual innocence," and remanded for the district court to consider the merits under § 2241 pursuant to the § 2255 savings clause. Id., 2000 WL 1745129, at *3.
Even if his claim of procedural innocence were not sufficient to justify considering the merits of this petition under § 2241 pursuant to the savings clause, Yu's CCE claim may be considered because he also asserts that he is factually innocent of the CCE charge. Although he was convicted of four substantive narcotics charges and two corresponding conspiracy charges (now vacated), Yu argues that these acts involved "the same heroin on two different occasions" that happened to violate both the importation and possession with intent to distribute statutes on each occasion. Yu Mem. at 11. In essence, Yu claims that he committed only two acts, which supports a claim for factual innocence of the CCE count. See United States v. Young, 745 F.2d 733, 747 (2d Cir. 1984) ("continuing series of violations" element of CCE charges requires proof of at least three drug felony violations), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985).
Yu has raised a sufficient factual innocence argument to justify considering the merits of the attack on his CCE conviction under 28 U.S.C. § 2241.
B. Remaining Substantive Convictions (Counts 4-7)
Yu asserts that the remaining substantive counts, must be vacated in light of Rutledge, 517 U.S. 292, because the instruction allowing the jury to consider these offenses as predicates for the continuing series of violations on the CCE charge improperly rendered the substantive counts lesser-included offenses, conviction on which was unconstitutionally duplicative of the CCE conviction. First, this argument could have been, but was not, raised in Yu's first § 2255 petition and is therefore procedurally defaulted, and Yu is not actually innocent of the substantive charges. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
Although Yu's memorandum states that this part of the motion seeks to vacate Counts 2, 4, 5, 6, and 7 as lesser included offenses to the CCE claim, Count 2 was vacated in the prior opinion, see Kwok Ching Yu, No. 97 Civ. 2816 (RWS), 1998 WL 160964 (Apr. 7, 1998). Therefore, Yu's petition will be construed as moving to vacate the remaining substantive narcotics charges, Counts 4, 5, 6, and 7.
Although Yu argues that the intervening decision in Richardson influences the analysis of the remaining substantive claims, his claim only implicates the lesser-included holding Rutledge rather than the unanimity issue related to the CCE charge in Richardson.
Moreover, the Second Circuit recently held in a related context that a lesser-included claim may not be considered under § 2241 pursuant to the savings clause of § 2255 unless and until the CCE conviction is vacated. Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999). In Underwood, the trial court had combined petitioner's sentence on the lesser-included conspiracy charge with the CCE sentence. The Second Circuit held that any resulting Rutledge error was "merely cosmetic," and caused no prejudice while life sentence for CCE conviction remained in effect. Here, too, Yu was sentenced to a mandatory life term pursuant to the statutory minimum on the CCE charge, and did not receive any concurrent sentence on the substantive offenses, so he has not been doubly punished in violation of Rutledge. Kwok Ching Yu v. United States, No. 97 Civ. 2816 (RWS), 1998 WL 160964 (Apr. 7, 1998). Finally, according to the reasoning of Underwood, if the CCE conviction is vacated, then Yu may be resentenced on the remaining substantive charges on which the jury unanimously agreed.
Yu was assessed $50 for each substantive count. However, as in Underwood, this argument has not been raised by counsel and is therefore procedurally defaulted, and, in any case, does not state an argument for actual innocence sufficient to constitute cause excusing the default. See Underwood, 166 F.3d at 88.
Yu's petition to vacate the remaining substantive counts of the indictment will not be considered on the merits under 28 U.S.C. § 2241.
Conclusion
For the foregoing reasons, Yu's attack on his CCE conviction will be considered on the merits pursuant to 28 U.S.C. § 2241. The parties are instructed to submit briefs on the merits of the CCE claim, including arguments relating to Richardson and the factual components of the "series of violations" element, on a schedule satisfactory to both parties.
It is so ordered.