Opinion
01 Civ. 1161 (SWK), 91 Cr. 955 (SWK)
May 22, 2002
OPINION AND ORDER
Pro se petitioner Felipe Escobar ("Escobar") moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence for conspiracy and possession with intent to distribute cocaine in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. § 2. Escobar argues the following: (1) the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), should be applied retroactively to his case, and (2) Section 841(a)(1) is unconstitutional as inconsistent with Apprendi.
I. BACKGROUND
On November 26, 1991, Escobar was charged in a three-count indictment with conspiracy to distribute and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1) (B), 846, and 18 U.S.C. § 2. During his trial, Escobar did not dispute that he delivered approximately five kilograms of cocaine to undercover agents or that he had agreed to deliver a total of 50 kilograms. A jury returned a verdict of guilty on all three counts on November 17, 1992. The jury was not asked to make a finding with respect to the amount of drugs involved in the transactions. On January 5, 1994, Escobar was sentenced to 293 months imprisonment, a supervised release period of five years, and a $150 special assessment. The sentence imposed was within the range mandated by the Sentencing Guidelines.
Escobar's appeal of his conviction and sentence was denied by the Second Circuit Court of Appeals in an unpublished summary order dated November 17, 1994. The Supreme Court denied Escobar's petition for a writ of certiorari on April 17, 1995. See Escobar v. United States, 514 U.S. 1073, 115 S.Ct. 1713 (1995).
Furthermore, Escobar's pro se motion pursuant to Title 18, United States Code, Section 3582(c) seeking modification of his sentence was denied by this Court on May 9, 2000. The Court of Appeals affirmed that decision in a Summary Order filed on October 30, 2001. In his reply brief Escobar asserts that he has recently filed a petition for reconsideration of this decision. However, a recent check of the docket sheet for this case in the Second Circuit reveals that Escobar's petition for rehearing en banc was denied on March 22, 2002.
II. DISCUSSION
A. ESCOBAR'S MOTION IS UNTIMELY
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).
Escobar's direct appeal was denied by the Court of Appeals on November 17, 1994, and his petition for a writ of certiorari was denied by the Supreme Court on April 17, 1995. Thus, Escobar's conviction became final more than five years prior to the time he filed his motion for habeas corpus relief in January 2001. Escobar 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, Escobar suggests 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.
However, the right recognized in the Apprendi decision was not made retroactively applicable to cases on collateral review, as required by subsection (C) of the AEDPA in order for Escobar's petition to be considered timely. 28 U.S.C. § 2244 (d)(1)(C); see also Raulston v. Menifee, No. 01 Civ. 0406, 2002 WL 826810 (S.D.N.Y. Apr. 30, 2002);Panton v. United States, No. 98 Civ. 1881, 2002 WL 655205 (S.D.N.Y. Apr. 22, 2002); Arroyo v. United States, No. 01 Civ. 7165, 2002 WL 662892 (S.D.N.Y. Apr. 22, 2002).
"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.'" Panton, 2002 WL 655205, at *1 (quoting Apprendi, 530 U.S. at 490). However, according to the holding announced in 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)). The new rule announced in Apprendi does not fit into either of the two Teague exceptions.
"No Supreme Court case has subsequently held that Apprendi can be applied retroactively to cases on collateral review." Arroyo, 2002 WL 662892 at *3. Although this Circuit has not yet ruled on the issue of whether Apprendi can be applied retroactively to initial § 2255 motions, "several recent cases from this district indicate that Apprendi does not apply retroactively to initial § 2255 [motions]." Arroyo, 2002 WL 662892, at *3 (citing Fiumara v. United States, No. 00 Civ. 0408, 2002 WL 519732, at *3 n. 5 (S.D.N.Y. Apr. 4, 2002)); see also Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651, at *5-6 (S.D.N.Y. Mar. 21, 2002); Garcia v. United States, 01 Civ. 7188, 2002 WL 42888, at *1-2 (S.D.N.Y. Jan. 11, 2002)); Panton, 2002 WL 655205, at *3;Raulston, 2002 WL 826810, at *5. Additionally, every circuit that has ruled on this issue has held that Apprendi does not apply retroactively to cases on collateral review. See, e.g., McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001) ("We agree . . . that the new rule announced . . . in Apprendi does not fall within either exception toTeague's non-retroactivity standard. Therefore, . . . we 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.) ("We agree . . . that Apprendi does not apply to cases on collateral review."), cert. denied, ___ U.S. ___, 122 S.Ct. 573 (2001); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) ("[W]e hold today that Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review."), cert. denied, ___ U.S. ___, 122 S.Ct. 848 (2002); 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.").
Following extensive precedent in this district and in circuits 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." Panton, 2002 WL 655205, at *3. As a result of the non-retroactivity of the new rule announced in Apprendi, Escobar's motion is not timely under subsection (C) of the AEDPA and is therefore denied.
B. 841(a)(1) IS CONSISTENT WITH APPRENDI
Escobar also challenges the constitutionality of Title 21, United States Code, Section 841(a)(1) in light of Apprendi. Specifically, Escobar asserts that because Section 841(b)'s sentencing factors under pre-Apprendi decisions were not considered to be elements of the offense to be determined by a jury, but were instead penalty factors to be considered by the judge that could enhance the statutory maximum penalty faced by a convicted defendant, the structure of Section 841 violates the rule set forth in Apprendi.
Recently, the Second Circuit addressed this very argument in United States v. Outen, 286 F.3d 622 (2d Cir. 2002), holding that "there is nothing in § 841 — nor is there usually in federal criminal statutes — which specifies a division of responsibility between judge and jury as to drug quantity," and therefore, Section 841 is not unconstitutional in light of the rule announced in Apprendi. Id. at 636. "It makes no constitutional difference whether a single subsection covers both elements and penalties, whether these are divided across multiple subsections (as § 841 does), or even whether they are scattered across multiple statutes." Id. (quoting United States v. Brough, 243 F.3d 1078, 1079 (7th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 203 (2001)). Therefore, "there is no constitutional defect in the design of § 841, and . . . there is no impediment to convictions under that statute as written." United States v. Brough, 243 F.3d at 1080. The Second Circuit through its decision in Outen joined every other circuit to have addressed this argument in rejecting it. See, e.g., United States v. Collazo-Aponte, 281 F.3d 320, 324-25 (1st Cir. 2002);United States v. Buckland, ___ F.3d ___, 2002 WL 857751 (9th Cir. May 7, 2002) (en banc); United States v. Kelly, 272 F.3d 622, 623-24 (3d Cir. 2001); United States v. McAllister, 272 F.3d 228, 232-33 (4th Cir. 2001); United States v. Cernobyl, 255 F.3d 1215, 1218-19 (10th Cir. 2001); United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir. 2001); United States v. Brough, 243 F.3d at 1080; United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532 U.S. 1045, 121 S.Ct. 2015 (2001); United States v. Candelario, 240 F.3d 1300, 1311 n. 16 (11th Cir. 2001), cert. denied, 533 U.S. 922, 121 S.Ct. 2535 (2001); see also Garcia v. United States, No. 01 Civ. 6234, 2002 WL 562647, *2 (S.D.N.Y. April 15, 2002). Therefore, Escobar's argument thatApprendi renders Section 841 unconstitutional must be denied.
III. CONCLUSION
For the foregoing reasons, Escobar is not entitled to relief on any of his claims, and his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is denied.
Escobar 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 Coppedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.