Opinion
EP-05-CA-0089-FM, EP-03-CR-2163-FM.
April 8, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Jacqueline Aragonez-Sandoval's ("Aragonez") Motion to Vacate pursuant to 28 U.S.C. § 2255, filed on March 18, 2005. For the reasons discussed below, the Court concludes that Aragonez' Motion to Vacate should be summarily dismissed pursuant to Rule 4(b) of the Rules Governing § 2255 Cases. The Court will additionally decline to certify Aragonez' issue for appeal.
I. BACKGROUND PROCEDURAL HISTORY A. Criminal cause no. EP-03-CR-2163-FM
On November 26, 2003, the Grand Jury sitting in El Paso, Texas returned a two-count Indictment against Aragonez, charging her with possession with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count One); and using a minor to assist in a drug operation, in violation of 21 U.S.C. § 861(a)(2) (Count Two). Aragonez decided to forego trial, instead choosing to accept a plea agreement in which she agreed to plead guilty to Count Two of the Indictment in return for the Government's dismissal of the remaining Count against her. Aragonez accordingly pleaded guilty to the Count Two of the Indictment on May 21, 2004.
The Court accepted the plea the same day and set the matter for sentencing. The Court entered Judgment on August 13, 2004, sentencing Aragonez to a 37-month term of imprisonment and a 4-year term of supervised release. The Court additionally ordered Aragonez to pay a $100 special assessment. Aragonez did not appeal.
B. Aragonez' Motion to Vacate pursuant to 28 U.S.C. § 2255
Aragonez raises one claim in her Motion to Vacate, alleging that her sentence violates the Supreme Court's holding in " Booker v. Washington" and " Blakely v. USA."
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 1592 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
Gaudet, 81 F.3d at 589.
Id.
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for summary dismissal and cause the movant to be notified." USCS § 2255 Proc. R. 4(b) (2004).
III. DISCUSSION
Pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972), the Court has liberally read Aragonez' Motion to Vacate. The Court understands her to argue that her sentence violates the holding of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004), as extended in United States v. Booker, ___ U.S. ___ 125 S.Ct. 738 (2005) (" Booker").
Although the Fifth Circuit Court of Appeals has yet to determine whether Booker applies retroactively to convictions that were already final when the rule was announced, the other circuit courts of appeal to consider the matter have uniformly held that Booker announced a new procedural rule which does not apply retroactively to initial habeas petitions pursuant to 28 U.S.C. § 2255. For the reasons discussed below, this Court agrees with the reasoning set forth by the Sixth, Seventh, and Eleventh Circuit Courts of Appeals and accordingly determines that Aragonez is clearly not entitled to relief on her claim.
See Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
A. Booker's holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised the provision of the federal sentencing statue making it mandatory for district courts to apply the Sentencing Guidelines. While the district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Retroactivity of new rules announced by the Supreme Court of the United States
See United States v. Booker, ___ U.S. ___, ___, 125 S.Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).
Booker, ___ U.S. at ___, 125 S.Ct. at 748.
See Booker, ___ U.S. at ___, 125 S.Ct. at 748; see also 18 U.S.C. § 3553(b)(1).
See Booker, ___ U.S. at ___, 125 S.Ct. at 757; see also 18 U.S.C. § 3553(a).
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final. New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Schriro v. Summerlin, ___ U.S. ___, ___,124 S. Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, ___ U.S. at ___, 124 S. Ct. at 2522.
Id.
Id.
Id. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively, because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow. C. Booker represents a new procedural rule that is not retroactive to cases on collateral review.
Schriro, ___ U.S. at ___, 124 S. Ct. at 2523.
Id.
Id. (internal quotation omitted).
Id. (internal quotation omitted).
Id.
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although "the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart."
Schriro, ___ U.S. at ___, 124 S. Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, ___ U.S. at ___, 124 S. Ct. at 2523.
Id.
Schriro, ___ U.S. at ___, 124 S.Ct. at 2523; see Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
Schriro, ___ U.S. at ___, 124 S.Ct. at 2526.
In sum, this Court, in keeping with every circuit court of appeals to decide the issue, concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, judgments that became final before January 12, 2005 may not claim relief pursuant to Booker.
See Humphress, 398 F.3d at 856; Varela, 400 F.3d at 868; McReynolds, 397 F.3d at 481.
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
Here, the Court entered Judgment on August 13, 2004. Because Aragonez did not appeal, her judgment accordingly became final on August 23, 2004, ten days after its entry and approximately five months before the Supreme Court decided Booker. As Booker therefore provides Aragonez with no legal basis for relief, the Court concludes that it should dismiss her claim with prejudice. IV. CERTIFICATE OF APPEALABILITY
The Court notes that even if Booker applied retroactively to her § 2255 motion, Aragonez would still not be entitled to relief. As part of her plea agreement, Aragonez agreed to waive any rights she might have to contest her sentence, except on the basis that: (1) the Court departed upward from the guideline range pursuant to U.S.S.G. § 5K2.0; or (2) her sentence resulted from a violation of her constitutional rights arising from ineffective assistance of counsel or prosecutorial misconduct.
Aragonez does not allege that she involuntarily entered her guilty plea or waived her appellate rights. That being the case, the Court finds that her waiver of appellate rights is fully enforceable. See United States v. Robinson, 187 F.3d 516, 517 (1999) (explaining that a defendant's waiver of his right to appeal is enforceable as long as the plea itself is informed and voluntary). Aragonez may therefore only appeal her sentence on the grounds that it directly resulted from ineffective assistance of counsel or prosecutorial misconduct. She makes neither allegation. Aragonez' plea agreement bars any other claim.
Aragonez has also failed to state a Booker claim. At the plea hearing, the Government offered a factual basis in support of Aragonez' guilty plea. Aragonez admitted that allegations therein were true and does not now repudiate her statements regarding them. She has not explained how the Court improperly sentenced her above the statutory maximum sentence authorized by her admissions. See Booker, ___ U.S. at ___, 125 S.Ct. at 749 (stating that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose based solely on the basis of facts reflected in the jury verdict or admitted by the defendant).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931, 949 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338, 123 S. Ct. at 1040.
Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and the parties' pleadings, the Court concludes that jurists of reason would not debate whether Aragonez has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding her claim for relief.
V. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Jacqueline Aragonez-Sandoval's Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a
Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Jacqueline Aragonez-Sandoval's Motion to Vacate, Set Aside, or Correct Sentence, filed on March 18, 2005, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Jacqueline Aragonez-Sandoval is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order denying Petitioner Jacqueline Aragonez-Sandoval's Motion to Vacate, Set Aside or Correct Sentence, filed on March 18, 2005, pursuant to 28 U.S.C. § 2255. The Court further denied Petitioner a Certificate of Appealability regarding her claim. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly, IT IS ORDERED that Petitioner Jacqueline Aragonez-Sandoval's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.