Opinion
01 Civ. 9880 (DLC)
December 23, 2002
Robert A. Ratliff, Roberts, Shields Green, P.C. Mobile, Alabama, for Plaintiff.
John M. Hillebrecht, United States Attorney, New York, New York, for Defendant.
OPINION AND ORDER
Jesse Bailey ("Bailey") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 following his conviction on two counts after trial for participating in a conspiracy to kidnap Shaneika Price and for her kidnaping, in violation of 18 U.S.C. § 371 and 1201. Bailey was sentenced on October 15, 1999, principally to life imprisonment. His conviction was affirmed on March 28, 2000. He was represented by his trial counsel on appeal.
The Government's chief witness at trial was Derek Frank, Bailey's co-conspirator. The evidence established that Bailey and Frank kidnaped Price as she arrived at her place of employment, held her hostage, attacked her, placed her in the trunk of a car, drove the car from Connecticut to New York, and set the car ablaze, burning Price to death. Price was Frank's former girl friend and the mother of his child. Frank and Bailey were confederates in drug dealing. The Government's case, in addition to Frank's testimony, consisted largely of a parade of witnesses who corroborated many of the details of Frank's testimony about the events of the day of the kidnaping. Bailey's appointed counsel, an experienced, diligent, skillful and thoroughly committed litigator, used a variety of tactics at trial in an ultimately unsuccessful effort to undermine Frank's credibility.
In this petition, Bailey's retained counsel attacks (1) the sentence as imposed in violation of the Due Process Clause of the Fourteenth Amendment and Apprendi v. New Jersey, 530 U.S. 466 (2000), on the ground that the jury was not asked to find Bailey guilty of murder, and (2) attacks the conviction on the grounds that the prosecutor vouched for Frank during summation and that the defense attorney "introduced" the defendant's prior criminal record during his own summation. The Government argues that the petition is untimely, that the individual claims are procedurally barred, and that they should in any event be denied on the merits.
I. Timeliness of Petition
Bailey's conviction became final on June 26, 2000, at the expiration of the ninety day period during which he could have filed a petition for a writ of certiorari following the affirmance of his conviction by the Second Circuit on March 28, 2000. The Government contends that the petition is untimely because it was not filed within the one year statute of limitations period provided in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Although the docket sheet would support the conclusion that the petition is untimely, defendant's counsel represents that he submitted papers for filing prior to June 26, 2001. Bailey's counsel states that on June 14, 2001, he submitted a group of documents to the Clerk of Court labeled "Motion for Modification of Sentence and for Correction of the Petitioner's Pre-Sentence Investigation Report Pursuant to 28 United States Code Section 2255." Bailey's counsel states that after he learned that the Clerk of Court failed to file this "motion," he resubmitted it on June 28, 2001. Bailey's counsel further states that on July 3, he received from the Clerk of Court a notice of deficiency instructing that the "motion" should be filed as a civil action. Counsel states that he thereafter filed the instant petition as a civil action on July 16, 2001, but was then notified that his motion to appear pro hac vice was denied, for reasons which he does not make clear. Bailey's counsel has not submitted any documents he received from the Clerk of Court nor any other documents to corroborate this account. It is not the practice of the Clerk of Court to make a record of the return of documents that do not conform to filing rules.
The United States Attorney for the Southern District of New York does not indicate when it first received notice of this "motion" or petition. Since it has moved to dismiss the petition as untimely, it can be inferred that it was not served with the June 14 or even the June 28, 2001 motion.
On November 8, 2001, Bailey's counsel submitted a five-page motion pursuant to 28 U.S.C. § 2255, but the motion did not bear an original signature. The motion was accompanied by exhibits, a memorandum of law, and motion for appearance of counsel pro hac vice and waiver of local counsel requirement. Through an order dated January 25, 2002, Bailey's counsel was advised to refile the petition as a civil action. This Order and its reference to the November 8, 2001 submission, is the first court record of a filing or attempted filing in connection with this petition. Finally, on March 26, 2002, counsel filed the petition with the appropriate civil cover sheet and fees. The Court accepts the representations of counsel that he attempted to file this petition with the Clerk of Court on June 14, 2001.
II. Sentencing
The defendant contends that the jury was required to find that the defendant committed murder in the first degree in order for him to be sentenced to life imprisonment. He relies upon the Due Process Clause, as well as the Apprendi decision, in making this argument.
As noted, Bailey was sentenced to life imprisonment. This sentence was the maximum sentence allowed for kidnaping in the absence of the victim's death and the sentence dictated by the Sentencing Guidelines.
Title 18, United States Code, Section 1201 provides that the crime of kidnaping "shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment." 18 U.S.C. § 1201 (emphasis supplied). Under the United States Sentencing Guidelines, the offense level was 43 or life imprisonment. Section 2A4.1, the kidnaping provision, refers to Section 2A1.1 "[i]f the victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territiorial or maritime jurisdiction of the United States." U.S.S.G. § 2A4.1. Section 2A1.1, the sentencing provision applying to first degree murder, sets the base offense level at 43. U.S.S.G. § 2A1.1. Accordingly, the maximum sentence for kidnaping is life imprisonment and the Sentencing Guidelines direct that that maximum sentence be imposed when the victim was killed under circumstances that would constitute murder.
The Government points out several deficiencies in the defendant's attack on his sentence. It is sufficient to observe that Bailey was sentenced within the maximum allowed by the statute even for those cases in which the kidnaping victim is not killed. In such circumstances, the rule of Apprendi is not violated. See United States v. Martino, 294 F.3d 346, 349 (2d Cir. 2002); Santana-Madera v. United States, 260 F.3d 133, 141 (2d Cir. 2001); United States v. White, 240 F.3d 127, 136 (2d Cir. 2001). Bailey has identified no separate violation of the Due Process Clause. In particular, Bailey does not dispute the overwhelming evidence that Price was murdered in the course of the kidnaping. See United States v. Cotton, 122 S.Ct. 1781, 1786 (2002).
III. Prosecutor's Summation
Bailey contends that the prosecutor vouched for Frank's credibility during his summation. Frank's testimony and credibility were at the heart of this case and it was appropriate and even essential for the prosecutor to address the issue of Frank's credibility during the summation. At no point during the summation did the prosecutor argue that he had personal knowledge that Frank was being truthful, or a personal belief that this was so. See United States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992). The prosecutor's remarks were correctly framed to present the jury with arguments and evidence it should consider in making its own evaluation of the reliability of Frank's testimony. See United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998).
IV. Defense Counsel's Summation
Bailey contends that his attorney improperly "introduced" his criminal record to the jury during the course of his summation. Bailey does not indicate with any specificity to what he is referring. During the summation, Bailey's attorney did refer to evidence that Bailey was a suspect in the investigation of the murder of a person named Jake Keels, that Bailey was a user and dealer of drugs, and that Bailey had robbed Frank of drugs. There was nothing improper about the summation arguments made concerning any of these issues. First, it was important to address these topics during the summation since there was evidence about them before the jury. Second, the defense used the evidence regarding these issues to explain why Frank chose to implicate Bailey in the kidnaping and to explain why Bailey lied to the police when interviewed about his activities on the day of the kidnaping. There were, therefore, strategic reasons for defense counsel to direct the jury's attention to this evidence. See Strickland v. Washington, 466 U.S. 668, 690 (1984); Pavel v. Hollins, 261 F.3d 210, 217 (2d Cir. 2001).
Conclusion
The petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990). I also find pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. U.S., 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.