Opinion
00 Civ. 9293 (LAK), (S1 95 Crim. 0244 (LAK))
December 12, 2000
ORDER
The movant was convicted in 1996 of (1) conspiracy to use interstate facilities in the commission of murder-for-hire, (2) use of interstate facilities in the commission of murder-for-hire, (3) use of a firearm during a crime of violence, viz. the murder-for-hire, (4) conspiracy to commit hostage taking, (5) hostage taking, and (6) use of a firearm during a crime of violence, viz. the hostage taking, and sentenced to life imprisonment followed by a consecutive term of twenty years imprisonment on the firearm count. Her conviction was affirmed on appeal. In 1999, she applied for a writ of audita querela setting aside her convictions on the ground that this Court lacked criminal jurisdiction in her case, an application that was denied by order dated April 27, 1999. United States v. Cheng, S1 95 Crim. 0244 (LAK) She then explained that she had not sought a writ of habeas corpus because it would have been time barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Movant now has filed a motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255 and seeks the appointment of counsel. She indicates that she is Chinese and does not speak English and that the inmate who drafted her papers for her would be in transit and thus unavailable by the time a response is filed. The petition goes on to state, however, that many prisoners have offered to help movant if she paid them, but that movant "was and still am weary of such assistance in a case of such magnitude." Pet. ¶ 11(d).
She first applied to the Court of Appeals for leave to submit a second or successive petition. By order dated November 6, 2000, that Court denied the motion as unnecessary because court records did not indicate that movant had ever filed a Section 2255 motion. Cheng v. United States, No. 00-3750 (2d Cir. Nov. 6, 2000).
Rule 4(b) of the Rules Governing Section 2255 Proceedings obliges this Court to examine the petition and, "[i]f 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," to "make an order for its summary dismissal."
Movant assigns three grounds for relief. First, she contends that she is actually innocent. Second, she contends that she was sentenced for first degree murder although she never was committed of that crime and that her sentence therefore violates the rule announced in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Finally, she argues that her conviction violates the Double Jeopardy Clause because she was prosecuted for murder twice in the Commonwealth of Pennsylvania, both of which prosecutions resulted in mistrials, prior to being tried on the federal charges.
All of movant's assertions with the possible exception of the Apprendi argument manifestly are barred by the one year statute of limitations enacted by AEDPA as, indeed, movant conceded in 1999 when she applied for a writ of audita querela. Even assuming arguendo that the one year prescriptive period is subject to equitable tolling and that petitioner's language difficulty were a sufficient basis for a toll, the fact that she mustered her forces to file the application for that writ nearly two years ago demonstrates that there is no sufficient excuse for her failing to raise these points in a more timely fashion. In any case, her non-Apprendi points are manifestly frivolous. To begin with, both of her points were fully available to her in the trial court and on appeal. They either were not raised or were rejected, either of which would be sufficient to preclude their being raised now. Moreover, there is no basis for either of them. Movant neither was convicted of nor sentenced for first degree murder but for the offenses listed above. There was no colorable double jeopardy claim in light of the dual sovereignty doctrine, see United States v. Lanza, 260 U.S. 377, 382 (1922), not to mention other deficiencies in the argument. Nor is there anything to movant's claim of actual innocence. She was convicted of all six offenses beyond a reasonable doubt. Her conviction was sustained on appeal. The only evidence she now puts forward is her own conclusory statement that she was innocent. That simply is insufficient to raise a material issue.
As far as the Apprendi argument is concerned, the Court recognizes that the impact of Apprendi, if any, in collateral proceedings such as this has not yet been settled definitively. Even assuming, however, that Apprendi applies to this case, any Apprendi violation would have been immaterial.
The count that controlled movant's sentencing range under the Sentencing Guidelines was Count One, which carried a base offense level of 43. Her offense level was adjusted upward by two points for obstruction of justice. But the guideline range at level 43 was a mandatory life sentence. The obstruction enhancement therefore was immaterial. In consequence, even if Apprendi would require determination of an obstruction enhancement by a jury based on proof beyond a reasonable doubt, and even if it applied here, issues on which the Court need express no opinion, it would make no difference at all. Movant still would have received the same sentence.
Accordingly, the motion for relief under Section 2255 is denied and dismissed and the motion for appointment of counsel both is denied. The Court declines to issue a certificate of appealability and finds that any appeal here from would not be taken in good faith for purposes of 28 U.S.C. § 1915.
SO ORDERED.