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discussing fact that First Circuit Court of Appeals has found Apprendi to apply when Apprendi decision came down before judgment became final, even if issue first raised on a collateral attack
Summary of this case from Hicks v. McAdoryOpinion
CIVIL ACTION NOS. 01-11540-DPW, 03-10219-DPW
April 30, 2003
MEMORANDUM AND ORDER
The petitioner, whose life sentence imposed after trial was affirmed by the Court of Appeals, United States v. Richardson, 225 F.3d 46 (1st Cir. 2000), has brought two proceedings — the first under 28 U.S.C. § 2255 (Civil Action No. 01-11540-DPW) and the second in pursuit of a writ of coram nobis (Civil Action No. 03-10219-DPW) — collaterally attacking his conviction.
I will dismiss the petition for a writ of coram nobis summarily because, as I held with respect to a co-defendant in the underlying criminal case, whatever the precise scope of that writ under modern federal criminal practice it is "not available to a federal prisoner in custody who seeks to challenge the sentence he is currently serving." Taylor v. Gilliland, Civ. No. 01-10045-DPW (D.Mass. July 23, 2001). See, e.g., United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001); United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997); United States v. Bush, 888 F.2d 1145, 1147 (7th Cir. 1989).
The § 2255 petition, by contrast, presents an issue requiring some discussion. The defendant received a mandatory life term on the Count One conspiracy in relevant part because I determined the quantity of drugs involved to be 267.84 grams of cocaine base. Under 21 U.S.C. § 841(b)(1)(A)(iii) offenses involving 50 grams or more of cocaine base carry a mandatory penalty of life imprisonment when, as here, a defendant has two prior convictions for a drug felony offense. By contrast, under § 841(b)(1)(C), in the absence of a specific drug weight determination, the statutory non-mandatory maximum of 20 years is increased to no more than a 30-year maximum when a defendant has previously been convicted of a drug felony. Thus, by virtue of my finding concerning the drug quantity, the defendant's sentence rose from no more than a potential 360 months in prison to a mandatory sentence of life. By contrast, the 30-year concurrent sentences on each of Counts Two through Ten were within the default statutory maximum in the absence of a drug quantity calculation by the jury.
Scattered through petitioner's several papers are other non-meritorious issues either incompletely or incomprehensibly argued. None appears compelling. Contrary to petitioner's suggestion, for example, it is well established that the criminal action of drug trafficking offenses of the type for which petitioner was convicted is within the congressional Commerce Clause power. United States v. Zorrilla, 93 F.3d 7, 8 (1st Cir. 1996). Similarly, failure to allege drug quantity in the indictment is not a jurisdictional defect requiring vacation of any sentence pursuant to it, when there has been, as here, no timely objection before trial. United States v. Cotton, 535 U.S. 625, 629-31 (2002).
Although the First Circuit has observed that it has not reached the question whether Apprendi permits a judge rather than a jury to determine if a defendant has a prior drug conviction, United States v. Goodine, ___ F.3d ___, 2003 WL 1826086 at 1 n. 3 (1st Cir. Apr. 9, 2003), Apprendi appears clear that the fact of prior convictions can be determined by the court. Apprendi's core holding affirms this proposition by negative pregnant in its language "[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 submited to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis supplied). Here there was no dispute that the petitioner had at least two prior convictions for drug felony offenses.
The decision to exceed the statutory default maximum in sentencing through judicial factfinding regarding drug quantity with respect to Count One arguably transgresses the core holding of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The government, however, contends that I may not address any Apprendi violation in a collateral attack under § 2255.
While the First Circuit "has not yet decided whether Apprendi applies retroactively to cases on collateral review," United States v. Baptiste-Calixce, 20 Fed. Appx. 8, 11 (1st Cir. 2001); Sustache-Rivera v. United States, 221 F.3d 8, 15 n. 12 (1st Cir. 2000) (noting Supreme Court "may yet hold that the Jones/Apprendi rule is to be retroactively applied to cases on collateral review"), the consensus view of courts that have reached the issue has been that Apprendi does not apply retroactively. See, e.g., United States v. Brown, 305 F.3d 304 (5th Cir. 2002), cert. denied, 2003 WL 1609400 (Apr. 28, 2003); Curtis v. United States, 294 F.3d 841, 842 (7th Cir.), cert. denied, 123 S.Ct. 451 (2002); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied, 123 S.Ct. 388 (2002); see also Coker v. United States, 2003 WL 1563374 at *2 (S.D.N.Y. Mar. 25, 2003) (collecting cases); Cordero v. United States, 2003 WL 1478090 at *4 (D.P.R. Mar. 18, 2003) (collecting cases).
Here, however, the Apprendi rule was announced in the period between oral argument and issuance of the opinion while this case was on appeal and before the judgment became final. Under such circumstances, the First Circuit has found Apprendi to apply even when the issue is first raised in a collateral attack on that final judgment. Derman v. United States, 298 F.3d 34, 42 (1st Cir. 2002).
The specific holding of Derman that Apprendi was applicable depended upon the more general holding "that a conviction for a federal defendant who fails to file a petition for a writ of certiorari becomes final when the period in which he seasonably might have done so expires." Derman v. United States, 298 F.3d 34, 42 (1st Cir. 2002). Because the conviction in Derman was not final when Apprendi was announced since Derman could still have filed a petition for certiorari, Apprendi provided the relevant rule of law in that case. That is true for the petitioner here as well. But the chronological comparison between that in Derman and that for the instant petitioner is a bit more complex and perhaps materially different. See infra note 4. Apprendi was handed down on June 26, 2000. The opinion in United States v. Derman, 211 F.3d 175 (1st Cir. 2000) (rejecting direct appeal) had issued on May 5, 2000, some two months earlier and mandate had issued on June 1, 2000. And while the period for seeking certiorari had not expired, Derman apparently never sought to have the First Circuit apply Apprendi to his direct appeal. Rather, he raised the issue for the first time on collateral attack. By contrast, the instant petitioner's case was under advisement after argument when Apprendi came down. The Court of Appeals' opinion in his case was not handed down until over two months later on September 7, 2000 with mandate issuing on September 29, 2000 some three months after Apprendi was announced. The petitioner sought to raise the issue in connection with the direct appeal by moving with co-defendant Richardson to recall the mandate on October 18, 2000. That effort was rebuffed by the First Circuit on October 25, 2000 when the motion for recall was denied with the terse observation that "[a]ppellants may pursue post-conviction remedies."
That Apprendi applies, however, does not end the analysis. The defendant "must seasonably advance an objection to a potential constitutional infirmity [e.g., an Apprendi violation] in order to preserve the point for collateral attack." Id. at 44. Here the petitioner did not raise the issue before me by an objection to the jury instructions (or otherwise), which anticipated the Apprendi grounds that became manifest while his case was under advisement on direct appeal. The Supreme Court held last term in United States v. Cotton, 535 U.S. 625, 631 (2002), that a party who has not objected in the trial court will be held on direct appeal to the plain error test of Fed.R.Civ.P. 52.
It is arguable that because the petitioner was told by the First Circuit in its order denying the motion to recall the mandate he must raise the Apprendi issue by pursuing post-conviction remedies, he should be held to the cause and prejudice standard applicable for procedurally defaulted claims. See generally Derman v. United States, 298 F.3d 34, 44-46 (1st Cir. 2002). However, because the petitioner's counsel sought to raise the issue, albeit belatedly through a motion to recall the mandate, in connection with direct appeal, I will apply the plain error analysis recently deployed by the Supreme Court in United States v. Cotton, 535 U.S. 625, 631-32 (2002). I recognize that this standard is less demanding than that required to excuse procedural default or collateral attack. Derman v. United States, 298 F.3d at 45-46 n. 8. As a consequence, my ultimate determination in this memorandum that the petitioner cannot satisfy the plain error standard is a fortiori a determination that procedural default may not be excused.
Following the approach of the Supreme Court in Cotton, 535 U.S. at 631-32, I assume that the failure to object to my determination of the drug quantity involved was plain error that affected a substantial right of the defendant and turn to the question whether this error seriously affected the fairness, integrity or public reputation of the proceedings. I find that it did not.
Drug quantity was challenged during sentencing proceedings before me but that dispute centered around whether a drug quantity arising from the course of dealing with Stafor Stokes should be attributed to the defendant. I substantially reduced the Stokes attribution from that calculated by the probation office; but the drug quantities conclusively established by the substantive transactions, in which the jury found the defendant to have participated by its guilty verdicts on Counts Two through Ten, greatly exceeded the 50-gram threshold for applying the mandatory life sentence to the petitioner. These were transactions plainly foreseen by the petitioner as objects of the conspiracy in which he was participating. United States v. O'Campo, 973 F.2d 1015, 1026 (1st Cir. 1992). In each transaction, the drug quantity could be found with precision and was not controverted because each transaction was a controlled purchase in which the cocaine base was recovered immediately after the sale.
The overwhelming and uncontroverted evidence was that the drug quantity involved in the conspiracy far exceeded the 50-gram threshold. There can be no doubt that if the precise question had been put to either the grand jury or the petit jury, they would have found the threshold exceeded.
Consequently, this case presents the same considerations as were present in Cotton:
In providing for graduated penalties in 21 U.S.C. § 841(b), Congress intended that defendants, like respondents, involved in large-scale drug operations receive more severe punishment than those committing drug offenses involving lesser quantities. Indeed, the fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments. The real threat then to the `fairness, integrity, and public reputation of judicial proceedings' would be if respondents, despite the overwhelming and controverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.535 U.S. at 634.
Accordingly, the petitioner's petition for coram nobis relief in Civ. No. 03-10219 and his motion for relief under 28 U.S.C. § 2255 in Civ. No. 01-11540 are hereby DISMISSED.