Grimes v. U.S.

Full title: CHARLES GRIMES, Petitioner v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, W.D. New York

Date published: Feb 7, 2003

01-CV-6271 CJS (W.D.N.Y. Feb. 7, 2003)

Opinion

01-CV-6271 CJS

February 7, 2003

DECISION AND ORDER

CHARLES J. SIRAGUSA, United States District Judge

INTRODUCTION

Now before the Court is the pro se petitioner's application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the application is denied.

28 U.S.C. § 2255

Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. The Court may dismiss a section 2255 petition without conducting a hearing if the petition and the record "conclusively show" that petitioner is not entitled to relief. 28 U.S.C. § 2255. As will be seen below, petitioner's arguments and submissions do not merit an evidentiary hearing.

BACKGROUND

The facts of this case were set forth in detail in U.S. v. Grimes, 225 F.3d 254 (2d Cir. 2000), and need not be repeated here. For purposes of the instant application, it is sufficient to note the following facts:

On April 6, 1999, [Petitioner] Charles Grimes was indicted under 18 U.S.C. § 922(g)(1) and § 924(a)(2) on three counts of being a felon in possession of firearms and ammunition. [Petitioner] moved to have the evidence that had been seized from 37 Linnet Street suppressed on the grounds that the warrantless searches were unlawful. [This Court] held a suppression hearing on July 8, 9, and 23 and then denied [Petitioner's] motion. United States v. Grimes, 67 F. Supp.2d 170 (W.D.N.Y. 1999).

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On September 24, 1999, a little more than one month after [this Court] denied his motion to suppress, [petitioner] executed a plea agreement with the U.S. Attorney's office and pled guilty to all of the counts of the indictment.

On February 8, 2000, [Petitioner] filed a motion to withdraw his plea. In a signed and sworn affidavit attached to his motion, [Petitioner] claimed innocence and explained that he pled guilty only to spare his family the trauma of seeing him put to trial. He also urged that his decision to plead guilty was motivated by distrust of the criminal justice system, which had been encouraged by his mother and sister.

At [Petitioner's] sentencing hearing, on February 14, 2000, [this Court] denied the defendant's motion to withdraw his plea, finding no "fair and just reason" for doing so.

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The [Court] then set the [Petitioner's] offense level under the United States Sentencing Guidelines. [Petitioner's] offense level was adjusted in light of U.S.S.G. § 2K2.1(b)(5) and U.S.S.G. § 3C1.1. Specifically, [the Court] enhanced [Petitioner's] offense level by 4 points under the former provision, which requires a finding that the defendant was in possession of a firearm or ammunition with reason to believe that it would be used in the commission of a felony. Applying the latter provision, the district court enhanced [Respondent's] offense level by two more points for obstruction of justice, concluding that [he] perjured himself by claiming innocence in the affidavit accompanying his motion to withdraw his plea. [Petitioner] was sentenced to 120 months in prison.

U.S. v. Grimes, 225 F.3d at 257-58. The sentence of 120 months was the maximum sentence Petitioner could have received. See, 18 U.S.C. § 924(a)(2).

On February 18, 2000, Petitioner filed a Notice of Appeal. In his brief to the Second Circuit, Petitioner argued, inter alia, that this Court had erred by adjusting his offense level pursuant to sections 2K2.1(b)(5) and 3C1.1 of the Sentencing Guidelines. See, Grimes v. U.S., 225 F.3d at 255-56 ("He also asks that we . . . find the district court's application of sentence enhancements under United States Sentencing Guidelines § 2K2.1(b)(5) and § 3C1.1 erroneous.") Specifically, with regard to the enhancement under § 2K2.1(b)(5), Petitioner argued, inter alia, that this Court had applied an incorrect standard, namely, that Petitioner merely knew the firearms and ammunition "could be" possessed in connection with another felony, not that they "would be." And, with regard to the enhancement under § 3C1.1, he argued that this Court had erred by finding that he had willfully obstructed or impeded the administration of justice.

The Second Circuit Court of Appeals affirmed Petitioner's convictions, stating, in relevant part:

Application of the four-level sentence enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) is well supported on the record. The district court misspoke once in stating what the standard for application of this sentence enhancement is, but in view of the fact that the court articulated the standard correctly on two other occasions, Judge Siragusa's error was undoubtedly just a slip of the tongue. In any event, the evidence that a four-level enhancement was required was so strong that any error would be harmless.

Similarly, though the standards for a sentence enhancement for obstruction of justice through perjury on the part of a defendant are fairly stringent, United States v. Gabriel, 125 F.3d 89, 105 (2d Cir. 1997) (requiring clear and convincing evidence), the district court certainly did not commit clear error in finding that those standards were met here.

U.S. v. Grimes, 225 F.3d at 259-60.

Petitioner, proceeding pro se, filed the subject motion on May 30, 2001. In it, Petitioner argues only that the Court erred in applying the aforementioned sentencing enhancements, because the elements of Sections 2K2.1(b)(5) and 3C1.1 of the Sentencing Guidelines were not "proved beyond a reasonable doubt and submitted to a jury for assessment." (Section 2255 Motion, ¶¶ 10-13) In that regard, Petitioner relies upon the decision of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).

In connection with the subject Section 2255 application, on August 28, 2001, this Court issued a Decision and Order, setting a briefing schedule, and expressly advising Petitioner that he was allowed "twenty (20) days upon receipt of the [Respondent's] answer to file a written response to the answer and memorandum of law, if desired." On October 5, 2001, Respondent filed its answer, in which it argues that the petition is procedurally barred, pursuant to U.S. v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) and Cabrera v. U.S., 972 F.2d 23, 25 (2d Cir. 1992). Specifically, Respondent contends that Petitioner may not relitigate issues which were raised and considered in his direct appeal. Respondent indicates that the application has no merit in any event, since "[t]he holding of Apprendi, which requires that certain elements be submitted to a finder of fact, for consideration beyond a reasonable doubt, is limited only to situations where a statutory maximum sentence is affected," and "[t]he sentencing enhancements at issue here [did] not alter the statutory maximums." (Respondent's Brief, p. 5). Petitioner did not submit a response to Respondent's brief.

ANALYSIS

It is clear that a petitioner may not use a Section 2255 motion to relitigate issues which were raised and considered in his direct appeal. U.S. v. Sanin, 252 F.3d 79, 83(2d Cir. 2001), cert denied, 523 U.S. 1024 (1998). Rather, reconsideration of such issues "is permitted only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal." Id. (citations omitted).

Applying the foregoing principles to the facts of this case, the Court finds that the application must be dismissed. First, it is clear that, on his direct appeal, Petitioner challenged the very same sentencing enhancements which are the subject of the instant motion, even though he did not do so on the precise grounds alleged here. Next, there has not been an intervening change in the law since Petitioner's conviction was affirmed. The Court notes that Apprendi was decided on June 26, 2000, which was prior to oral argument of Petitioner's direct appeal,¹ and two months before the Second Circuit issued its decision affirming Petitioner's convictions. There is no indication that Petitioner, who on his direct appeal was represented by the office of the Federal Public Defender, attempted to supplement his brief to raise the argument upon which he now relies. See, FEDERAL RULE OF APPELLATE PROCEDURE 28(j): see also, Campino v. U.S., 968 F.2d 187, 190 (2d Cir. 1992) ("We now hold that [in connection with a motion under Section 2255], failure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice."). Petitioner has not attempted to demonstrate either cause or prejudice. Therefore, the Court finds that Petitioner's claims are procedurally barred.

1 Respondent's Brief, p. 5.

Petitioner's claims have no merit in any event. As Respondent correctly notes, Apprendi does not apply to the instant case, because the sentencing facts found by this Court did not cause Petitioner's sentence to exceed the statutory maximum, nor did they trigger a mandatory statutory minimum.² See, U.S. v. Quintieri, 306 F.3d 1217, 1231 (2d Cir. 2002) ("The jury found all the elements of the crimes for which [the defendant] was convicted, his sentences do not exceed the statutory maximum for any of those crimes, and the jury was not required to find sentencing facts that only affected his Guideline range.") (citation omitted); see also, U.S. v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001) ("[A] guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury.") (citations omitted), cert denied, 533 U.S. 960 (2001)).

2 Because the Court finds that Apprendi has no application, it need not consider whether or not Apprendi would apply retroactively to Petitioner.

CONCLUSION

Petitioner's application is denied, and this action is dismissed. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability, since Petitioner has not made a substantial showing of the denial of a constitutional right.

So Ordered.