Opinion
01-CV-1061 (NPM), 92-CR-51-001
August 6, 2002
Carnell Donaldson, White Deer, PA, Petitioner Pro Se.
Joseph A. Pavone, United States Attorney for the Northern District of New York, Grant C. Jaquith, Assistant U.S. Attorney, Albany, NY.
MEMORANDUM-DECISION AND ORDER
This matter is before the Court on pro se petitioner Carnell Donaldson's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Based on a review of the file and record, petitioner's motion is denied.
BACKGROUND
Petitioner was convicted in October 1992 of (1) conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; (2) aiding and abetting distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); (3) continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848; and (4) criminal forfeiture, in violation of 21 U.S.C. § 853. At petitioner's sentencing hearing in January 1993, this Court's finding by a preponderance of the evidence — that petitioner was responsible for more than 50 but less than 150 kilograms of cocaine — resulted in a base offense level of 40. The Court added two levels for obstruction of justice. Petitioner's combined adjusted offense level of 42 and a criminal history category V resulted in a sentencing range of 360 months to life. The Court sentenced petitioner to 400 months imprisonment and five years of supervised release.
The Second Circuit Court of Appeals affirmed petitioner's conviction. See Donaldson v. United States, 999 F.2d 537 (2d Cir. 1993) (unpublished decision). Pursuant to 28 U.S.C. § 2255, petitioner now moves to vacate and set aside his sentence, arguing that: (1) the imposed sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), because drug quantity was not charged in the indictment or submitted to the jury during the trial; and (2) his CCE conviction is invalid because the jury failed to unanimously find each of the three predicate acts as required by Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707 (1999).
DISCUSSION I. Apprendi Claim
In Apprendi, the Supreme Court held that any factor that increases the penalty for a crime beyond the prescribed statutory maximum is an element of the offense rather than a mere sentencing factor and, as such, must be submitted to the jury and proven beyond a reasonable doubt. See Apprendi, 530 U.S. at 489-490. Petitioner claims that the Court's imposition of 400 months of imprisonment violated Apprendi because the Court, in calculating the sentence, made a drug quantity determination and no quantity of drugs was charged in the indictment. As a result, petitioner seeks a reduction of his sentence and supervised release term.
A. Retroactivity of Apprendi
Section 105 of Title I of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 ("AEDPA"), signed into law on April 24, 1996, created a one year period of limitation in which a petitioner is entitled to file a § 2255 motion. As relevant here, the statute states that the limitation period begins to run from:
(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.28 U.S.C. § 2255.
In applying 28 U.S.C. § 2255(3), this Court must determine (1) the date on which the Supreme Court recognized a new right and (2) whether the right has been made retroactively applicable to cases on collateral review. See Pryor v. United States, 278 F.3d 612, 614 (6th Cir. 2002). As for the first condition, the government here does not dispute that on June 26, 2000, the Supreme Court in Apprendi recognized a new right within the meaning of § 2255. Rather, the government argues that Apprendi does not apply retroactively to cases on collateral review and, therefore, petitioner may not invoke § 2255(3) to create a new limitation period. See United States v. Pinkston, 153 F. Supp.2d 557, 559 (M.D.Pa. 2001). Relying on Jackson v. United States, 129 F. Supp.2d 1053, 1059 (E.D.Mich. 2000) and Rodgers v. United States, 229 F.3d 704, 706 (8th Cir. 2000), petitioner asserts that his motion is timely under § 2255(3) and that Apprendi is retroactively applicable to initial § 2255 motions. Although some case law exists to support petitioner's argument, the clear weight of authority is against petitioner.
Circuit Courts are in general agreement that Apprendi sets forth a new rule of criminal procedure. See United States v. Sanders, 247 F.3d 139, 147 (4th Cir. 2001); United States v. Moss, 252 F.3d 993, 997-998 (8th Cir. 2000); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000); McCoy v. United States, 266 F.3d 1245, 1256 (11th Cir. 2001). In Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060 (1989), the Supreme Court held that new constitutional rules of criminal procedure cannot be applied retroactively to cases on collateral review unless they fall within the exception to the general rule. The Court recognized two such exceptions. The first exception encompasses rules that place an entire category of conduct beyond the reach of statutory prohibition. The first exception clearly does not apply here because the rule of Apprendi did not decriminalize a category of conduct or prohibit imprisonment of drug conspirators.
Accordingly, Apprendi does not apply retroactively unless it falls within Teague's second exception. The second exception applies to new "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." O'Dell v. Nertherland, 521 U.S. 151, 167, 117 S.Ct. 1969 (1997). To qualify as a watershed rule, the new rule "must . . . improve the bedrock procedural elements essential to the fairness of the proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822 (1990). The Supreme Court pointed to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963) as the type of the rule that would satisfy the second Teague exception. In Gideon the Supreme Court held that in all criminal trials for serious offenses counsel shall be provided. Id. Unlike Gideon, Apprendi does not improve the accuracy of the trial by protecting the innocent from the conviction, but merely limits the potential penalty to be imposed on those who have been validly convicted. See Moss, 252 F.3d at 999.
Furthermore, in Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997), the Second Circuit Court of Appeals concluded that a new rule of criminal procedure requiring a judge to submit the question of the materiality of a defendant's allegedly false statements to the jury did not apply retroactively because there was "little reason to believe that juries will have substantially different interpretations of materiality than judges." In light of the Second Circuit's reasoning in Bilzerian, this Court concludes that Apprendi does not state a "watershed" rule of criminal procedure implicating the fundamental fairness and accuracy of the proceedings. There is little reason to believe that juries will access evidence of the quantity of drugs or make other sentence-enhancing determinations differently than judges. See Vargas v. United States, 2002 WL 1402010, at *4 (S.D.N.Y. 2002). Considering that Apprendi does not fall under either exception set forth by the Supreme Court in Teague, it is not retroactively applicable to cases on collateral review. See In re Turner, 267 F.3d 225, 231 (3d Cir. 2001); United States v. Sanders, 247 F.3d 139, 148 (4th Cir. 2001); United States v. Moth, 252 F.3d 993 (8th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000); McCoy v. United States, 266 F.3d 1245, 1257 (11th Cir. 2002); Garcia v. United States, 2002 WL 42888, at *1 (S.D.N.Y. 2002); Saldarriaga v. United States, 2002 WL 449651, at *6 (S.D.N.Y. 2002); Moore v. White, 188 F. Supp.2d 411, 416 (S.D.N.Y. 2002). Since petitioner may not invoke § 2255(3) to create a new period of limitation, his motion is time-barred.
B. Merits of the Apprendi Claim
Even if the petitioner succeeded in convincing this Court that the standard articulated in Apprendi applied to his case, Apprendi does not help petitioner because his sentence is within the statutory limits. The Court of Appeals for the Second Circuit expressly stated that a sentence within the statutory maximum is unaffected by Apprendi. See United States v. Thomas, 247 F.3d 655, 673 (2d Cir. 2001) ("drug type and quantity may be used to determine the appropriate sentence so long as the sentence imposed is not greater than the maximum penalty authorized."); United States v. White, 240 F.3d 127, 136-37 (2d Cir. 2001) ("we read [Apprendi] to apply only when a sentencing court's findings increased the penalty faced by the defendant above the statutory maximum for a given count, and not merely when they affect the length of a sentence within the statutory range.")
In the present case, petitioner contends that his indictment failed to charge any quantity of drugs and, as such, it should be subject to catch-all provision of 21 U.S.C. § 841(b)(1)(C) which carries a maximum statutory penalty of twenty years of imprisonment. According to the petitioner, the imposition of 400 months of imprisonment violates Apprendi because it exceeds a maximum statutory sentence of twenty years (240 months) of imprisonment. Petitioner correctly asserts that under Apprendi he cannot be sentenced to more than twenty years of imprisonment for violation of 21 U.S.C. § 841(b)(1)(C). However, petitioner overlooks the fact that besides violating 21 U.S.C.§ 841, he was also convicted of engaging in a CCE in violation of 21 U.S.C. § 848. As is discussed further below, petitioner's challenge to his CCE conviction lacks merit. Pursuant to 21 U.S.C. § 848(a) the maximum penalty for engaging in a CCE is imprisonment for life. Here, petitioner was sentenced to 400 months — considerably less than the statutory maximum. Considering that petitioner's sentence is within statutory prescribed maxims, his sentence is unaffected by Apprendi.
II. Richardson Claim
In Richardson, the Supreme Court addressed the meaning of the phrase "series of violations" contained in § 848. See Richardson, 526 U.S. at 824. The Court held that each violation that makes up the "series of violations" is a separate element "in respect to each of which the jury must agree unanimously and separately." Id. Petitioner claims that in light of the holding in Richardson, this Court's failure to instruct the jury to unanimously find each of the three predicate acts that make up a CCE offense renders his conviction invalid.
21 U.S.C. § 848 states that a person engages in a continuing criminal enterprise if
(1) he violates any provision of this sub-chapter or sub-chapter II of this chapter the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of this sub-chapter or sub-chapter II of this chapter
(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and
(B) from which such person obtains a substantial income or resources.
A. Statute of Limitations
As petitioner correctly notes, the Supreme Court announced a substantive rule in Richardson and, accordingly, that rule applies retroactively to cases on collateral review. See Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000) ("Richardson involves the substantive construction of a criminal statute . . . Richardson applies retroactively because it set forth substantive law."); Benevento v. United States, 81 F. Supp.2d 490, 493 (S.D.N.Y. 2000) ("Richardson explicitly redefines the substance of a CCE violation by redefining its elements . . . in . . . redefining the elements of a CCE violation Richardson announces a substantive change in criminal law and therefore applies retroactively."). Even though Richardson applies retroactively, petitioner must still comply with AEDPA's statute of limitations provision. As stated above, AEDPA creates a "1-year limitation period." And relevant here, the one-year period runs from:
(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.28 U.S.C. § 2255 (3).
Petitioner argues that his motion is not time-barred because the limitation period runs for one year from the date on which Second Circuit Court declared Richardson to be retroactively applicable on collateral review. Petitioner's position, however, is unsupported by any case law. Even though Circuit Courts are split on the issue of when the statute of limitations begins to run for the purposes of § 2255(3), no court takes the position advocated by petitioner. Some Circuit Courts hold that the statute of limitations for claims under § 2255(3) does not begin to run until the Supreme Court rules on the collateral availability of the new right. See In re Vial, 115 F.3d 1192,1197 n. 9 (4th Cir. 1997). Other courts hold that the date on which the new right was initially recognized commences the statute of limitations. See United States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001). The Second Circuit Court of Appeals has not yet directly addressed the question of when exactly the statute of limitations for motions pursuant to § 2255(3) begins to run.
However, in Triestman v. United States, 124 F.3d 361, 371 n. 13 (2d Cir. 1997), the Second Circuit stated in dicta that the limitation period commences to run on "the date on which the right asserted was initially recognized by the Supreme Court, which may be different from the date on which the right is later made retroactively available to cases on collateral review." Given the language in Triestman, this Court concludes that the statute of limitations begins to run from the date on which the Supreme Court has recognized the new right. Since Richardson was decided on June 1, 1999, petitioner's one-year limitation period for asserting his Richardson-based claims in this § 2255 motion began to run from that date. Here, petitioner's motion is dated June 22, 2001 — well after the deadline set by the gate-keeping provision of 28 U.S.C. § 2255.
B. Merits of the Richardson Claim
Even if the petitioner could demonstrate that his Richardson claim is not time-barred, his claim lacks merit. Petitioner correctly asserts that the jury instructions given on the CCE count were clearly erroneous under Richardson in that they did not require unanimity for each specific violation. See Richardson, 526 U.S. at 824. However, instructional error made by the Court does not automatically result in vacation of a CCE count. The underlying conviction will be vacated only if there is a structural error, i.e., error of such magnitude as to "affect the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246 (1991). In Santana-Madera, 260 F.3d 133, 139 (2d Cir. 2001), the Second Circuit held that Richardson errors are not structural and are subject to harmless error review.
Some confusion exists in determining which harmless error standard applies when a constitutional error is being evaluated for the first time on collateral review. See Romero v. United States of America, 2001 WL 921167 at *5 (S.D.N.Y. 2001). In Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824 (1967), the Supreme Court stated that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." In Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710 (1993), however, the Supreme Court established a different standard for harmless error review, requiring a petitioner to show that the error "had substantial and injurious effect or influence in determining the jury's verdict." Neither the Supreme Court nor the Second Circuit have established whether Brecht or Chapman constitutes a proper harmless error standard. This case does not require this Court to address the question, however, because under either standard the Richardson error was clearly harmless.
Here, in addition to the CCE conviction, the jury specifically agreed that petitioner was guilty of nine predicate drug felonies — eight counts of cocaine distribution (Counts 28, 32, 38, 39, 44, 50, 52, 53) and a single count of conspiracy to distribute cocaine (Count 1). Thus, the jury unanimously agreed on nine violations of the federal drug laws, any three of which are sufficient to establish the "continuing series of violations" under Richardson and § 848. See Santana-Madera, 260 F.3d at 140. Therefore, if this Court had given the jury instruction required by Richardson, it is beyond a reasonable doubt that the jurors would have unanimously agreed on three predicate acts because they have already unanimously agreed on nine such violations, any three of which are sufficient to establish the "continuing series of violations required for a CCE conviction. Id. at 141. The error here, even under the more stringent Chapman standard, is clearly harmless.
Citing Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241 (1996), petitioner argues that the Richardson error is not harmless. However, the Supreme Court's conclusion in Rutledge — that § 846 constitutes a lesser included offense of § 848 and that the conviction cannot be entered on both counts — has nothing to do with determining whether the Court's failure to instruct the jury to unanimously agree on three predicate acts constitutes a harmless error. Accordingly, Rutledge does not buttress petitioner's Richardson claim.
Without any citation to authority petitioner also argues that even if the jury found him guilty of eight substantive counts, the dates on which the jury found him guilty of each count are so far apart that one could not tell whether the jury unanimously agreed on any three counts. The Court finds this contention without merit. The jury unanimously found petitioner guilty of eight violations — any three of which are sufficient to establish the "continuing series of violations" for purposes of the CCE count.
CONCLUSION
After carefully reviewing the submissions in this matter, in conjunction with the applicable law, the Court concludes that petitioner's § 2255 motion is time-barred. The Court notes that even if the motion was timely, petitioner's Apprendi and Richardson claims lack merit. Accordingly, for the reasons stated above, petitioner's § 2255 motion to vacate, set aside, or correct his sentence of imprisonment is DENIED.
IT IS SO ORDERED.