Opinion
01 CIV. 7167 (HB)
October 18, 2002
OPINION ORDER
Cesar Castillo ("Castillo") brings this petition pursuant to 28 U.S.C. § 2255 to vacate and set aside or to correct his sentence entered by this Court on July 25, 1996. Castillo alleges that (1) he is not procedurally barred from making a § 2255 claim; (2) the indictment against him was fatally flawed because it did not contain language identifying the maximum penalties or sentences for the crime being charged in violation of 21 U.S.C. § 812, 841(b)(1)(A) and 841(b)(1)(B); and (3) 21 U.S.C. § 841 is unconstitutional because the statute does not set forth a penalty within the same section of the statute. For the following reasons, the motion is DENIED and the petition is dismissed.
I. BACKGROUND
In February 1995, Castillo and others were indicted in a one count indictment charging participation in conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. On September 28, 1995, a superceding two count indictment charged Castillo and others with (1) conspiracy to distribute cocaine and to possess cocaine with intent to distribute it from January 1994 through February 2, 1995 and (2) conspiracy to distribute heroin and to possess heroin with intent to distribute it from November 1994 through February 2, 1995. Both in violation of 21 U.S.C. § 846. The government dismissed the second count of the superceding indictment before trial. A jury convicted Castillo on November 6, 1995 on the remaining count.
On July 25, 1996, I sentenced Castillo to 235 months incarceration pursuant to U.S.S.G. §§ 2D1.1 (a)(3), 2D1.1 (b)(1), and 3B1.1(c). Castillo filed a notice of appeal on August 5, 1996. The Court of Appeals affirmed Castillo's conviction. Castillo filed a petition for certiorari with the United States Supreme Court, which was denied on January 12, 1998. On or about August 2, 2001, Castillo filed the instant petition.
II. DISCUSSION
Castilo's petition is untimely
Pursuant to the 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), an application for a writ of habeas corpus is subject to a one-year period of limitation which runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the "date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255. Castillo's petition is untimely under each of the provisions.
First, Castillo's petition is clearly untimely under § 2255(1). Castillo was found guilty by a jury on November 6, 1995, and was sentenced on July 25, 1996. His judgment of conviction was entered on August 20, 1996. He appealed to the Second Circuit, the judgment of conviction was affirmed on or about September 4, 1997. His petition for certiorari to the United States Supreme Court was denied on January 12, 1998. Pursuant to § 2255, Castillo had one year from that date to file a petition to challenge his sentence. Castillo's petition was brought more than two and a half years later, on August 2, 2001. Castillo fails to provide any reasonable or meritorious justification as to why it took him over two years after his conviction to file this petition.
Second, Castillo does not claim that the government impeded the filing of his motion fbr habeas relief under § 2255(2). Third, he does not allege, pursuant to § 2255(4), that the facts supporting his claims could not have been discovered through the exercise of due diligence until after the limitations period had expired.
Lastly, Castillo cannot justify his untimely petition under § 2255(3), which delays commencement of the one-year limitations period until "the date on which the right asserted [in the motion] was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255 (3). Castillo asserts several claims based on the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). Castillo argues that Apprendi constitutes a newly recognized right that should serve to save his petition under § 2255(3). Without reaching the issue of the retroactivity of Apprendi I find that Apprendi is inapposite to Castillo's case.
To qualify under § 2255(3), the recognized right must apply retroactively to cases on collateral review. The Second Circuit recently heard arguments regarding the retroactivity of Apprendi, but has yet to render its decision. See Beatty v. United States, 293 F.3d 627, 631 n. 3 (2d Cir. 2002) (citing United States v. Luciano(Parise)), No. 01-1198 (2d Cir. argued Jan. 28, 2002)). The Supreme Court as well, has yet to rule on this issue. See Forbes v. United States, 262 F.3d 143, 146 (2d. Cir. 2001) ( per curiam) (denying petitioner leave to file a second § 2255 motion because "no pronouncement has yet been made by the Supreme Court on the retroactivity of Apprendi" and petitioner is therefore "unable to meet the pertinent requirement of§ 2255"). Nonetheless, district courts in this circuit have held against retroactivity with respect to § 2255 motions. See, e.g., Donaldson v. United States, 2002 WL 1839213, at *3 (S.D.N.Y. August 6, 2002) (McCurn, J.) ((finding thatApprendi "is not retroactively applicable to cases on collateral review"); Vega v. United States, 2002 WL 1788015, at *3 (S.D.N.Y. August 2, 2002) (Keenan, J.) ("[C]ourts in the Southern District of New York have held that the Apprendi rule . . . is inapplicable retroactively to cases on collateral review) (citing cases).
In Apprendi, the Supreme Court held that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. However, "[t]he constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction." Thomas v. United States, 274 F.3d 655, 664 (2d Cir. 2001). Castillo was found guilty beyond a reasonable doubt of one count of conspiring to distribute cocaine in violation of 21 U.S.C. § 846, the penalty for which, involving any amount of cocaine, carries a statutory maximum of not more than twenty years' imprisonment. See 21 U.S.C. § 841 (b)(1)(C).
Petitioner's sentence of 235 months in prison did not exceed the statutory maximum and Apprendi therefore does not apply. See United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001). Castillo's petition is thus untimely under § 2255(3) and barred by the AEDPA's statute of limitations.
I find Castillo's other allegations to be without merit.
III. CONCLUSION
For all the foregoing reasons, the petitioner's motion to vacate and set aside or correct his sentence is DENIED and the petition is dismissed. The Clerk of the Court is instructed to close this matter and remove it from my docket along with any open motions.