Opinion
Case No. 01 Civ. 5045 (SWK), 91 Cr. 685 (SWK)
March 24, 2003
Myles Coker, USP Lewisburg, Lewisburg, Pennsylvania, Petitioner Pro Se (on the initial petition); George W. Galgano, Jr., Esq., Galgano Sullivan, White Plains, New York, for Petitioner.
Deirdre A. McEvoy, Esq., Assistant United States Attorney, New York, New York (James B. Comey, Esq., United States Attorney for the Southern District of New York), for Respondent.
OPINION AND ORDER
Pro se petitioner Myles Coker moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence for conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Coker argues that the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), should be applied retroactively to his case. For the reasons set forth below, Coker's petition is denied.
I. BACKGROUND
On October 5, 1992, Coker was charged in Indictment S9 91 Cr. 685 (SWK) with participating in a narcotics distribution conspiracy. The Indictment charged a total of forty defendants in seventeen counts. Count One charged Coker with participation in a heroin conspiracy from 1986 to 1992, in violation of 21 U.S.C. § 846. Count Eight charged Coker with possession with intent to distribute in excess of one hundred grams of heroin, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(B) and (c), and 18 U.S.C. § 2. Count Nine charged Coker with using and carrying firearms in relation to narcotics trafficking crimes, in violation of 18 U.S.C. § 924(c).
On March 8, 1993, shortly before the jury was sworn in at the first trial of this case, Coker pled guilty to three counts pursuant to a plea agreement with the Government. In the agreement, Coker agreed to plead guilty to the narcotics conspiracy charged in Count One, a substantive heroin possession count (Count Eight), and a firearm charge (Count Nine). The plea agreement also contained a series of stipulations between Coker and the Government regarding the drug quantity for which Coker could be held responsible as a member of the conspiracy.
On April 16, 1993, the Court declared a mistrial in the trial of Coker's co-defendants, and, on July 30, 1993, granted Coker's motion to withdraw his guilty plea. See 829 F. Supp. 620, 634-36 (S.D.N.Y. 1993). The mistrial was based upon the revelation that several of the agents who had participated in the investigation of this case would themselves be indicted for corrupt activities.
Coker and his co-defendants then went to trial on these charges in November 1993. The evidence introduced at trial proved that Coker was a wholesale supplier of heroin to the "Blue Thunder" heroin organization run by Eric Millan and managed his own retail drug organization, distributing heroin on the street under the brand name "Exxon." When arrested by members of the New York Drug Enforcement Task Force on August 1, 1991, Coker was alone in his apartment in Manhattan and consented to a search of his residence. Therein, agents found more than 7000 glassines of heroin, an assortment of narcotics paraphernalia, narcotics records, two bags of cash containing more than $123,000, telephone records, business cards, photographs linking Coker to other members of the drug conspiracy charged in Count One of the Indictment, and a cellular telephone that had been tapped during the investigation. Dozens of witnesses testified at trial about Coker's drug dealing activities and his role in the larger drug conspiracy. On July 8, 1994, the jury convicted Coker on the narcotics conspiracy charge. The jury was unable to reach a verdict as to the narcotics possession and firearms charges against Coker. Coker was then sentenced on October 12, 1994 to a term of life imprisonment, five years of supervised release, and the mandatory special assessment of $50.00. The Court determined that Coker should be held accountable for 501 kilograms of heroin distributed by the conspiracy, based upon a finding that this amount was reasonably foreseeable to Coker in light of his role as a supplier to the organization. The Court held oral argument concerning the propriety of holding Coker responsible for the 501 kilograms of heroin distributed by the conspiracy, and held that Coker himself participated in the distribution of more than 300 kilograms of heroin and that he could reasonably foresee the full extent of the conspiracy's narcotics distribution. The base offense level of 42 was also adjusted upward by two points, in accordance with U.S.S.G. § 2D1.1(b)(1), for his possession of several firearms at the time of his arrest. The Court declined Coker's request for an adjournment so that he could take advantage of a pending reduction in the sentencing guidelines regarding drug quantity.
The Second Circuit rejected all of Coker's claims on appeal and affirmed his conviction and sentence in a published opinion and an accompanying summary order. See United States v. Rosario, et al., 111 F.3d 124 (2d Cir. 1997) (table); United States v. Rosario, et al., 111 F.3d 293 (2d Cir. 1997). Coker then filed a petition for a Writ of Certiorari with the United States Supreme Court, which was denied on November 10, 1997, Coker v. United States, 522 U.S. 969, 118 S.Ct. 418 (1997). On May 18, 2001, Coker filed the instant petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing (1) the federal narcotics statute, 21 U.S.C. § 841, is unconstitutional under Apprendi (2) his conviction for narcotics trafficking constitutes a violation of the rule announced in Apprepdi because of the failure to submit the issue of drug quantity to the jury and the failure to allege a specific drug quantity in the Indictment; and (3) his sentence was illegal because the Court declined to adjourn his sentencing date so that he could benefit from a proposed Guidelines amendment. Coker also filed a supplemental petition on November 19, 2001, in which he makes several additional claims in addition to reiterating his arguments based upon Apprendi, namely that the Indictment should have been dismissed because of misconduct by Government agents, and that both his trial and appellate counsel were ineffective for failing to properly litigate the issues raised in his petition.
II. DISCUSSION
A. APPRENDI DID NOT RENDER 21 U.S.C. § 841 UNCONSTITUTIONAL
Coker first argues that the Supreme Court's decision in Apprendi v. New Jersey rendered 21 U.S.C. § 841 unconstitutional as written and applied to his case and, therefore, his conviction, not merely his sentence, should be vacated. However, the Second Circuit has recently joined every other circuit to have ruled on this issue in upholding the facial constitutionality of 21 U.S.C. § 841. See United States v. Outen, 286 F.3d 622, 634-36 (2d Cir. 2002) (collecting cases). Therefore, Coker's argument that the narcotics statute is unconstitutional is without any merit and is denied as a basis for vacating his conviction.
B. APPRENDI IS NOT A SUBSTANTIVE CHANGE IN THE LAW
Coker's next argument is that the new rule announced in Apprendi is a substantive, rather than a procedural, change in the law. Therefore, he argues, it must be applied retroactively to his petition.
Citing Concepcion v. United States, 181 F. Supp.2d 206 (E.D.N.Y. 2002), Coker argues that the analysis used to determine retroactivity of a new rule, as outlined in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), is not applicable in this case as Apprendi announces a substantive change in criminal law, not merely a new rule of criminal procedure. While substantive rules are automatically applied retroactively, holdings dictating methods of criminal procedure are presumptively non-retroactive. See Parrado v. United States, 207 F. Supp.2d 230, 233 (S.D.N.Y. 2002); Rosario v. United States, No. 00 Civ. 9695, 2001 WL 1006641, at *2 (S.D.N.Y. Aug. 30, 2001). The overwhelming majority of courts in this Circuit and those across the country have all agreed that the new rule announced in Apprendi is to be considered a new rule of criminal procedure and analyzed under the holding of Teague to determine its retroactivity. See, e.g., McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001) ("[W]e hold that the new constitutional rule of criminal procedure announced in Apprendi does not apply retroactively on collateral review."); United States v. Sanders, 247 F.3d 139, 146 (4th Cir.), cert. denied, 534 U.S. 1032, 122 S.Ct. 573 (2001); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert. denied, 534 U.S. 1097, 122 S.Ct. 848 (2002);; In re Clemmons, 259 F.3d 489, 491 (6th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000) ("[W]e find that the non-retroactivity principle pronounced in Teague prevents Petitioner from benefitting from Apprendi's new rule on collateral review. "); Clarke v. United States, No. 01 Civ. 9040, 2002 WL 31207338, *3 (S.D.N.Y. Oct. 2, 2002) ("There is consensus among circuit courts that this holding is a new constitutional rule of criminal procedure rather than substantive criminal law"); cf. Concepcion v. United States, 181 F. Supp.2d 206.
This Court is compelled by the weight and reason of authority to conclude that the rule announced in Apprendi is a new rule of criminal procedure and not a substantive change in the criminal law. Indeed, the language of Apprendi strongly suggests that the rule at issue is procedural. "The substantive basis for New Jersey's enhancement is thus not an issue; the adequacy of New Jersey's procedure is." Apprendi, 530 U.S. at 475, 120 S.Ct. 2348. As such, Coker may only benefit from the new rule if it satisfies one of two exceptions outlined in Teague.
C. APPRENDI DOES NOT APPLY RETROACTIVELY ON COLLATERAL REVIEW
Apprendi sets forth the following new rule of criminal procedure: "[o]ther 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." 530 U.S. at 490. It is undisputed that the ruling in Apprendi applies to convictions that preceded the decision where the defendant was challenging the conviction on direct appeal. See United States v. Thomas, 274 F.3d 655 (2d Cir. 2001); Griffith v. Kentucky, 479 U.S. 314, 321-23, 107 S.Ct. 708, 712-14 (1987). However, pursuant to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), a new rule of criminal procedure is not to be applied retroactively to cases on collateral review unless one of the following two exceptions applies: (1) new rules which "place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense;" or (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding." Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997) (quoting Sawyer v. Smith, 497 U.S. 227, 241-42, 110 S.Ct. 2822, 2831 (1990)). As demonstrated below, neither of these exceptions applies to Apprendi.
First, the rule announced in Apprendi clearly does not meet the first exception as it does not address an entire category of primary criminal conduct, nor does it prohibit imposition of a certain type of punishment based upon an offender's status or offense. See Bilzerian, 127 F.3d at 241. Apprendi does not place any category of conduct outside the scope of criminal law. See McCoy, 266 F.3d at 1256-57 (11th Cir. 2001) (collecting cases)
The second exception is also inapplicable here. Under Teague and its progeny, "watershed rules" are those which "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding."Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311) (emphasis in original); see also Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651 (S.D.N.Y. Mar. 21, 2002) (holding Apprendi cannot be considered a "watershed rule" of criminal procedure and refusing to apply the rule retroactively on collateral review); Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, *2 (S.D.N.Y. Jan. 11, 2002) (holding Apprendi does not apply retroactively to cases on collateral review); Rivera v. United States, 136 F. Supp.2d 263 (S.D.N.Y. 2001). In fact, no rule yet tested against the high standard set forth in Teague has been applied retroactively. See Clarke, 2002 WL 31207338 at *3 ("Since Teague established the watershed rule of exception, the Supreme Court has yet to find a rule of significant dimension to meet it"); Garcia, 2002 WL 42888 at *2 (of the eleven new or proposed rules of criminal procedure the Supreme Court has reviewed against the criteria for the second Teague exception, in not one instance has the Court held that the rule should apply retroactively); United States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000).
"The rule in Apprendi — requiring any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt — falls short of Teague's high standard." Garcia, 2002 WL 42888 at *2. Apprendi merely shifts the determination of factors that enhance the maximum statutory penalty from the judge to the jury. See id. In similar circumstances, the Second Circuit held that a new rule which shifts the determination of an element of a crime from the judge to the jury was not a "watershed rule" under the Teague standard. See Bilzerian, 127 F.3d at 241 (holding that the rule stated in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995), shifting the determination of materiality from the judge to the jury in prosecutions for concealing a material fact from a federal entity, does not fit within the second exception in Teague). Although the Second Circuit has not definitively ruled on the retroactivity of Apprendi, its ruling in Forbes v. United States, 262 F.3d 143, 145 (2d Cir. 2001), "strongly suggests a predisposition toward non-retroactivity." Gonzalez v. United States, No. 02 Civ. 2733, 2002 WL 31512728, *3 (S.D.N.Y. Nov. 8, 2002). Therefore, the rule announced in Apprendi falls short of meeting the second exception of Teague and should not be applied retroactively to cases on collateral review.
In addition to the recent decisions in this district that determined the rule in Apprendi should not be applied retroactively on collateral review, at least four other circuits have also made the same determination. See e.g., United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 388 (2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 48 (2002); United States v. Sanders, 247 F.3d at 150 ("we do not read Apprendi to hold that the country's criminal justice system malfunctioned so fundamentally prior to the year 2000 as to merit the retroactive application of the Court's new procedural rule."); United States v. Moss, 252 F.3d at 997 ("we hold today thatApprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review").
Following the ample precedent set forth by the previous cases decided in this district and around the country, it is evident that the new rule of criminal procedure announced in Apprendi should not be applied retroactively to cases on collateral review. As a result, Coker's motion to vacate, set aside, or otherwise correct his sentence based upon the ruling in Apprendi is therefore denied.
D. COKER'S REMAINING CLAIMS ARE TIME-BARRED
Coker next argues that the Indictment under which he was convicted was improper because it relied upon evidence that was tainted by the corruption of the investigating agents. Coker asserts that the prosecutor should have re-submitted the case to the grand jury. This Court and the Second Circuit both considered and rejected this argument with respect to Coker's co-defendants prior to the commencement of trial. See United States v. Millan, 829 F. Supp. 620, 632-33 (S.D.N.Y. 1993), aff'd, 17 F.3d 14 (2d Cir. 1994). Coker did not raise this argument either before this Court or during his direct appeal.
Coker also asserts that the Court should have adjourned his sentencing date so that he could have benefitted from a proposed amendment to the Sentencing Guidelines. This Court considered and rejected his request at the time of sentencing. Coker again raised this issue on appeal. The Second Circuit rejected this argument in conjunction with all of the defendants' sentencing arguments. United States v. Rosario, 111 F.3d 124 (2d Cir. 1996) (table).
Finally, for the first time, Coker raises the issue of ineffective assistance of counsel on the part of his trial and appellate counsel. Coker alleges that neither his trial counsel nor his appellate counsel raised the issue decided in Apprendi and were therefore ineffective in failing to challenge the Indictment.
It is well established that a petition for relief under 28 U.S.C. § 2255 may not be used as a tool to relitigate questions raised and considered on direct appeal. See e.g., United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997); Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993); United States v. Jones, 918 F.2d 9, 10-11 (2d Cir. 1986). Similarly, an petition pursuant to § 2255 may not be used to litigate a claim that was available at the time of the defendant's direct appeal from the judgment of conviction but that was not made on that appeal, unless there is a showing of cause for the default and prejudice resulting from the claimed error. See, e.g., Douglas, 13 F.3d at 46;Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). However, "[a] defendant may raise such claims `where the issues were not raised at all on direct appeal due to ineffective assistance of counsel.'" United States v. Perez, 129 F.3d at 621 (quoting Underwood v. United States, 15 F.3d 16, 18 (2d Cir. 1993)).
Pursuant to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one year statute of limitations applies to motions for habeas corpus relief. 28 U.S.C. § 2244(d). The one-year limitation period begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)
On October 14, 1994, Coker's judgment of conviction became final in the district court; Coker's direct appeal was then denied by the Court of Appeals on June 17, 1997, and his petition for a writ of certiorari was denied by the Supreme Court on November 10, 1997. Thus, Coker's conviction became final for the purposes of the AEDPA nearly four years prior to the time he filed his motion for habeas corpus relief in June 2001. Coker has not raised a claim of any impediment to filing this motion, nor does he argue that new facts have come to light that make the filing of this motion timely, pursuant to subsections (B) or (D) above. Instead, Coker argues that because his motion was filed within one year of the Court's decision in Apprendi, the motion was therefore timely filed under the provisions of subsection (C) above.
As discussed above, Apprendi is not retroactively applicable to cases on collateral review and therefore, Coker's petition is time-barred.See, e.g., Acevedo v. United States, No. 00 Civ. 9696, 2002 WL 1453828, *4 (S.D.N.Y. July 3, 2002) (claims of ineffective assistance of counsel not considered by the court when petition for relief filed after the one year limitations period of the AEDPA). Coker's petition was filed more than four years after his conviction became final and his petition is untimely under the AEDPA. Moreover, Coker's claim regarding the Court's decision not to adjourn his sentencing date was denied on appellate review and will not again be considered by this Court. See United States v. Perez, 129 F.3d 255. Finally, Coker's claim regarding the Indictment and the corruption of the investigating agents was raised on appellate review by his co-defendants and denied by the Second Circuit. Coker has not demonstrated cause for his failure to raise that issue on direct appeal, nor has he shown prejudice resulting from that alleged error. See Douglas, 13 F.3d at 46.
III. CONCLUSION
Therefore, for the reasons set forth above, Coker is not entitled to relief under Apprendi v. New Jersey, and his motion to vacate his sentence is denied. Coker's remaining claims are time-barred under the provisions of the AEDPA.
Coker may not appeal this order to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court finds that the petitioner will not be able to sustain his burden. Thus, the Court declines 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. See Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Should the petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See Conpedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.