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refusing to review petitioner's defaulted Apprendi claim, even though Apprendi was not yet decided at the time of petitioner's appeal, because "arguments positing sentence-enhancing factors as questions for a jury are not novel and were raised well before Apprendi."
Summary of this case from SOSA v. U.S.Opinion
01 Civ. 9040 (RCC)
October 1, 2002
OPINION AND ORDER
Petitioner Everton Clarke ("Clarke" or "Petitioner"), acting pro se, moves for relief, pursuant to 28 U.S.C. § 2255, from his December 17, 1993 conviction at trial for multiple counts of exporting cocaine, conspiring to export cocaine, aiding and abetting the exportation of cocaine, possessing with intent to distribute cocaine and marijuana, and aiding and abetting the same. Clarke asserts that: (1) his sentence was unconstitutionally enhanced by the sentencing judge's findings on the quantity of narcotics exported in contravention of the Supreme Court's subsequent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) certain statutes under which he was convicted, 21 U.S.C. § 841 and 960, are unconstitutional in light of Apprendi; and (3) a 1990 narcotics conviction in state court is invalid and thus was improperly used to enhance his sentence in the 1993 conviction. For the following reasons, Clarke's petition is denied.
I. BACKGROUND
A. The Federal Conviction and Sentence
The Government filed Indictment S1 92 Cr. 1138(SS) on September 30, 1993 against Clarke and his co-defendants in twenty-one counts. The Government subsequently moved on November 17, 1993 to dismiss three of those counts and amended the Indictment to renumber the remaining counts. of note, Count One charged Clarke and his co-defendants with conspiring to export more than five kilograms of cocaine, in violation of 21 U.S.C. § 963; Counts Two through Twelve charged Clarke with exporting, and aiding and abetting the exportation of over 500 grams of cocaine, in violation of 21 U.S.C. § 953 and 960(b)(2)(B) and 18 U.S.C. § 2; and Count Nineteen charged Clarke with possessing with intent to distribute over 500 grams of cocaine and marijuana, and aiding and abetting the same pursuant to 21 U.S.C. § 841(b)(1)(B) and 18 U.S.C. § 2.
After a trial before then-United States District Judge Sonia Sotomayor, a jury convicted Clarke on all counts. The evidence at trial showed that Clarke and his co-defendants exported multi-kilogram quantities of cocaine via couriers from New York to London. The Probation Department calculated Clarke's offense level as 38 with a United States Sentencing Guidelines ("U.S.S.G.") range of 292 to 365 months of imprisonment based upon, among other things, the quantity of drugs involved in the offenses, Clarke's prior criminal history, and his role as leader and organizer of a narcotics conspiracy.
Prior to sentencing, however, Clarke provided assistance to the United States Attorney's Office in the District of Maryland under a cooperation agreement. In turn, the Government submitted a motion to Judge Sotomayor pursuant to Section 5K1.1 of the U.S.S.G. explaining Clarke's assistance to the Maryland office and requesting a downward departure. The Probation Department revised the PSR to reflect the 5K1.1 submission and recommended 240 months' imprisonment. Judge Sotomayor adopted this recommendation, sentencing Clarke to concurrent terms of 240 months on all counts, to be followed by 10 years of supervised release, and a mandatory special assessment of $650.
B. The Federal Post-Conviction Challenges
On appeal to the Court of Appeals for the Second Circuit, Clarke argued that Judge Sotomayor erred by denying his pre-trial motion to suppress evidence of one kilogram each of cocaine and marijuana seized from a vehicle driven by Clarke and from which he had fled with a co-defendant. Clarke further asserted that Judge Sotomayor incorrectly predicated his base offense level under the U.S.S.G. on a quantity of cocaine (between 15 and 50 kilograms) that was neither reasonably foreseeable to him nor sufficiently specific. On November 9, 1995, the Second Circuit affirmed without opinion.
On April 24, 1996, Clarke sent a letter to Judge Sotomayor complaining about his trial counsel. Clarke alleged that his attorney, Barry Turner, Esq., (1) never informed him of a plea deal allegedly offered by the Government; (2) assured him that he would receive a sentence no higher than five years; and (3) neglected to call another client who allegedly could have provided exculpatory information on his behalf at trial. Clarke also alleged that the Government had leaked "privileged inculpatory information" to a Government witness that was later used against Clarke at trial. As was the practice in the Southern District at the time, Judge Sotomayor converted this letter and later submissions by Petitioner into a § 2255 petition for habeas corpus. Judge Sotomayor conducted two evidentiary hearings on Clarke's allegations and ruled them meritless.
C. The Prior State Conviction and Post-Conviction Challenges
On August 7, 1990, Clarke pleaded guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree in the State of New York Supreme Court, County of Queens. Clarke was sentenced to three months' incarceration and five years' probation. Clarke did not file a direct appeal.
On or about May 27, 1997, Clarke filed a motion in state court to vacate his state conviction pursuant to New York CPLR § 440.10, arguing primarily that his counsel was ineffective and that his guilty plea was not made voluntarily because he only pleaded at the insistence of his attorney. The Honorable Judge Pearle Appelman of the New York Supreme Court, denied Clarke's motion without a hearing, ruling that the allegations of fact made by Petitioner in support of his motion were unsupported by affidavits or evidence. On December 7, 1998, the Honorable Lawrence J. Bracken, Associate Justice of the Second Judicial Department, denied Clarke's application for a certificate granting leave to appeal the August 7, 1997 order.
On December 31, 1998, Clarke filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, in the Northern District of New York, seeking an order vacating the prior New York State conviction as the result of allegedly constitutionally ineffective counsel. Clarke argued this prior conviction should not have been used to enhance his subsequent federal sentence. On April 12, 1999, the Honorable Lawrence E. Kahn, United States District Judge for the Northern District of New York, denied Clarke's petition, and later denied his petition for reconsideration. The Second Circuit affirmed Judge Kahn's order, agreeing that Clarke had failed to demonstrate that § 2255 would be an inadequate or ineffective remedy. The Second Circuit noted that Clarke might still be able to bring a motion under § 2255 in the Southern District of New York.
D. The Instant § 2255 Petition
Clarke filed a motion with the Second Circuit requesting an order authorizing the District Court to consider a successive § 2255 motion. The Clerk for the Second Circuit dismissed the motion as unnecessary; finding that Judge Sotomayor's conversion of Clarke's April 24, 1996 letter into a § 2255 petition was error because she did not advise Clarke of the consequences of the conversion or give him an opportunity to withdraw his motion pursuant to Adams v. United States, 155 F.3d 582 (2d Cir. 1998) (per curiam). Thus, Clarke could not be subject to the Anti-Terrorism and Effective Death Penalty Act's gatekeeping provisions limiting second or successive petitions and the Second Circuit instructed the District Court to construe the instant petition as his first.
II. DISCUSSION
1. Retroactivity
A. Apprendi v. New Jersey
Several years after Clarke's conviction, the Supreme Court held that "any fact that increases the penalty of a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). There is consensus among circuit courts that this holding is a new constitutional rule of criminal procedure rather than substantive criminal law. See e.g., In re Clemmons, 259 F.3d 489, 491 (6th Cir. 2001); United States v. Moss, 252 F.3d 993, 997-98 (8th Cir. 2001);United States v. Sanders, 247 F.3d 139, 147 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000). As such, the Apprendi rule would not be retroactive unless it falls within either of two exceptions explained in Teague v. Lane, 489 U.S. 288, 310 (1989). The first exception demands retroactive application if the rule "places 'certain kinds of primary, private individual conduct'" beyond the scope of the criminal law. Id. at 310-11 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)). The second exception is reserved for "watershed rules of criminal procedure." Id. at 311.
The rule of Apprendi does not fit into either of Teague's exceptions. First, Apprendi did not place any conduct outside the scope of criminal law. McCoy v. United States, 266 F.3d 1245, 1256-57 (11th Cir. 2001) (collecting cases). The second exception is equally unavailing. A "watershed" rule is one that without which there is "an impermissibly large risk that the innocent will be convicted." Teague, 489 U.S. at 312. Since Teague established the watershed rule exception, the Supreme Court has yet to find a rule of significant dimension to meet it. United States v. Moss, 252 F.3d at 998, n. 5. However, the Supreme Court has suggested that the sweeping rule of Gideon [v. Wainwright, 372 U.S. 335 (1963)], which established an affirmative right to counsel in all felony cases" is a watershed rule. O'Dell v. Netherland, 521 U.S. 151, 167 (1997). Whereas deprivation of counsel in a criminal trial goes to the heart of the "fundamental fairness of the trial," the enhancement of a sentence by a judge on a preponderance of the evidence simply does not.United States v. Moss, 252 F.3d at 998-1001 (comparing Gideon toApprendi).
Although the Supreme Court has not ruled on the issue and it issub judice in the Second Circuit, several circuits have held thatApprendi is not retroactively available on collateral review. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 141 (4th Cir. 2001); Browning v. United States, 241 F.3d 1262, 1263 (10th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000). Further, many judges in this District have enlisted the reasoning of these sister circuits in dispensing with Apprendi challenges in habeas petitions. Vargas v. United States, No. 01 Civ. 5527(VM), 2002 WL 1402010, at *4 (S.D.N.Y. June 28, 2002); Parrado v. United States, No. 01 Civ. 2892 (PKL), 2002 WL 1392004, at *2 (S.D.N.Y. June 25, 2002);Raulston v. Menifee, No. 01 Civ. 0406(DC), 2002 WL 826810, at *4 (S.D.N.Y. April 30, 2002) (collecting similar authority in this District); but see Concepcion v. United States, 181 F. Supp.2d 206, 234 (E.D.N.Y. 2002) (applying Apprendi retroactively). This Court is compelled by the weight and reason of authority to conclude that Clarke may not apply Apprendi retroactively to challenge his conviction on collateral review through his instant § 2255 habeas corpus petition.
Harris v. United States, 122 S.Ct. 2406, 2427 (2002) (Thomas, J., dissenting) (noting that "[n]o Court of Appeals, let alone this Court, has held that Apprendi has retroactive effect").
See Beatty v. United States, No. 01-2493, 2002 WL 1041375, at *4, n. 3 (2d Cir. May 24, 2002) (citing United States v. Luciano (Parise), No. 01-1198 (2d Cir. argued Jan. 28, 2002).
2. Procedural Default
Even if Apprendi did apply retroactively on collateral review, Petitioner would be procedurally barred from asserting such a claim because he failed to raise it on direct appeal. Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999). To obtain collateral review of the Apprendi question the petitioner must show both "cause" for and "actual prejudice" resulting from the procedural default. McCleskey v. Zant, 499 U.S. 467, 494 (1991). If cause is lacking, relief may be available if Petitioner can demonstrate "that a fundamental miscarriage of justice would result from a failure to entertain the claim." Id. at 494-95.
In an effort to show cause, Petitioner contends that he "could not reasonably" raise the Apprendi issue on direct appeal because the case had not been decided at that time. (Pet. Br. at 2). "Futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time." Bousley v. United States, 523 U.S. 614, 623 (1998). The proper inquire is whether the claim was "so novel that its legal basis [was] not reasonably available to counsel."Reed v. Ross, 468 U.S. 1, 16 (1984). As many circuit and district courts have noted, arguments positing sentence-enhancing factors as questions for a jury are not novel and were raised well before Apprendi. See e.g., United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001 ) (noting that "the foundation of Apprendi was laid long before 1992"); Raulston v. Menifee, 2002 WL 826810, at *5 (finding that "[i]f the claim was 'percolating' in the courts, then the claim was available to counsel" and holding petitioner was procedurally barred from raising Apprendi in his habeas petition because he did not raise it on pre- Apprendi direct appeal); see also McCoy v. United States, 266 F.3d at 1258 (11th Cir. 2001) (gathering cases in support of holding that a petitioner is procedurally barred from raising Apprendi on collateral review even though it had not been decided at the time of direct appeal). Accordingly, Petitioner cannot show cause by way of the unavailability or futility of his argument.
Further, even if the Apprendi decision had been available to Petitioner on direct appeal, the argument would have been unavailing, because the decision is inapplicable to his case. As the Supreme Court recently held, "the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt." Harris v. United States, 122 S.Ct. 2406, 2418 (2002). Judge Sotomayor's sentence of 240 months was well within the statutory maximum of 40 years under 21 U.S.C. § 841(b)(1)(B). On Count Nineteen alone, Petitioner was convicted of possessing with intent to distribute over 500 grams of cocaine and marijuana. Judge Sotomayor was well within her authority in sentencing Petitioner within the statutory limitations. See Harris, 122 S.Ct. at 2418 ("The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from those juries — and without contradicting Apprendi."). Thus, without any Apprendi violation, Petitioner fails to show "actual prejudice" from his procedural default.
B. The Constitutionality of the Drug Statutes
The Second Circuit recently joined every other circuit to have ruled on the issue in upholding the facial constitutionality of 21 U.S.C. § 841. United States v. Outen, 286 F.3d 622, 634-36 (2d Cir. 2002) (collecting cases and holding that Congress expressed neither any intent in § 841 to make drug quantity a sentencing factor nor any division of responsibility between the judge and jury as to drug quantity). Though Outen addressed § 841 specifically, the reasoning behind the decision applies equally well to § 960, as the two statutes are "structurally identical." United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th Cir. 2002). Therefore, Petitioner's argument that the statutes are unconstitutional is without merit and he may not rely on it in support of his petition.
C. The 1990 State Conviction
Finally, Petitioner's contention that Judge Sotomayor improperly enhanced his federal sentence on the basis of his allegedly unconstitutional state conviction is precluded by the Supreme Court's ruling in Daniels v. United States, 532 U.S. 374 (2001). In Daniels, the Court held that, as a general rule, an individual may not challenge his federal sentence in a § 2255 petition on the grounds that his prior convictions were unconstitutionally obtained after the sentencing proceeding had concluded. Id. at 376. If the prior conviction is no longer open to direct or collateral attack because the defendant either failed to pursue those remedies or those challenges were unsuccessful, then the presumption of validity attached to the prior conviction at the time of sentencing is conclusive. Id. at 382. The Court in Daniels noted that a defendant has numerous opportunities to challenge the constitutionality of his conviction," including direct appeal, post-conviction proceedings under state law, and petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Id. at 381. Petitioner failed to initiate either a direct appeal or a habeas corpus petition pursuant § 2254 before his state conviction expired. He did seek, and was ultimately denied, post-conviction relief under New York State law pursuant to CPLR § 440.10, albeit after a nearly seven year hiatus in pursuing recourse for his state conviction. Pet. Br. at 23. The Petitioner has had the "numerous opportunities" to challenge the state conviction and may not pursue them "indefinitely and without limitation." Id. at 381. Accordingly, this Court may not entertain the petitioner's challenge to his 1990 drug conviction.
III. CONCLUSION
For all the foregoing reasons Petitioner's application for writ of habeas corpus is denied with prejudice. The Clerk of the Court shall enter a final judgment dismissing this petition and close the case. Further, since any appeal from the dismissal of this petition would be meritless, the Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c)(1); Slack v. McDonald, 529 U.S.473, 484 (2000).