Opinion
Nos. 03 Civ. 3755 (RPP), 91 Cr. 827 (RPP).
March 8, 2005
OPINION AND ORDER
Mike Huang ("Huang") moves pro se, pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure, claiming his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004). Rule 35(a) does not apply here, as there was no error in the sentence. In addition, because Huang filed his petition nearly eleven years after his conviction was affirmed, Huang's motion is time barred and therefore denied.
Background
On September 27, 1991, Huang and two other co-defendants were arrested and charged with kidnapping and interstate and foreign travel or transportation in aid of racketeering enterprises in violation of 18 U.S.C. § 1201(c) and 18 U.S.C. § 1952, respectively. A jury trial on these charges began in January 1992. During trial, it developed that an uncertified interpreter had been utilized and had not been interpreting properly. On motion from Huang's counsel, a mistrial was declared on January 27, 1992. Thereafter, the Court denied Huang's motion barring a retrial on double jeopardy grounds, and, upon interlocutory review, the Second Circuit upheld the decision with respect to Huang and one other defendant who had moved for a mistrial, but reversed with respect to the two non-moving defendants. United States v. Huang, 960 F.2d 1128 (2d Cir. 1992). Huang also moved for severance, which motion was denied.
Huang's second trial commenced on May 11, 1992. On May 22, 1992, the jury delivered a verdict of guilty on two counts of kidnapping and one count of interstate and foreign travel or transportation in aid of racketeering enterprises. On November 6, 1992, Huang was sentenced to 235 months' imprisonment with 5 years' supervised release. Huang appealed, and the Second Circuit affirmed on April 27, 1993. United States v. Huang, 993 F.2d 1533 (2d Cir. 1993). On May 27, 2003, over ten years after his appeal had been denied, Huang filed a motion pursuant to 28 U.S.C. § 2255, claiming (1) violation of his Fifth Amendment right to due process when his motion barring a retrial was denied; (2) denial of effective assistance of counsel; and (3) improper determination of his sentence. On October 2, 2003, the Court denied Huang's petition because it was time barred. Huang v. United States, No. 03 Civ. 3755, 2003 U.S. Dist. LEXIS 17409 (S.D.N.Y. Oct. 2, 2003).
On August 23, 2004, Huang filed the instant motion pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure claiming his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004), because his sentence was enhanced based on judicial findings. The Court issued an Order requesting the Government to respond to the petition. The Government submitted a response on December 30, 2004. Huang did not submit a reply to the Government's response.
Discussion
Rule 35(a) of the Federal Rules of Criminal Procedure states, in relevant part, that "[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Fed.R.Crim.P. 35(a). Motions made pursuant to this rule must be filed within 7 days after sentencing.Huang did not claim any error in the sentencing handed down by this Court. Rather, he claims that the sentence was illegal based on the Supreme Court's subsequent rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004). (Huang's Mot. at 3-6.)
Huang's motion fails for two reasons. First, Huang's claim for relief under Rule 35(a) is time barred as he is seeking relief more than 11 years after his conviction became final. A court may enter an order correcting a sentence pursuant to Rule 35(a) within 7 days of sentencing. Second, Rule 35(a) does not provide relief for the claim made by Huang. Rule 35(a) provides that a court may correct a sentence for (i) arithmetical, (ii) technical, and (iii) other clear error. Huang's claim for relief, on the other hand, is based on the constitutionality of the judicial findings of the Court that affected sentencing under the Federal Sentencing Guidelines. This is not an issue addressed by Rule 35(a). According to the 1991 Advisory Committee Notes on Rule 35:
The authority to correct a sentence under [Rule 35(a)] is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would most certainly result in a remand of the case to the trial court for further action. . . . The subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court's discretion with regard to the application of the sentencing guidelines.
Fed.R.Crim.P. 35 advisory committee's notes. Since Huang does not argue that his sentence is the result of "arithmetical, technical, or other clear error," Rule 35(a) does not apply here.
Huang's claim would be more appropriately sought through a petition under 28 U.S.C. § 2255. However, because Huang has already sought relief under 28 U.S.C. § 2255, see Huang, 2003 U.S. Dist. LEXIS 17409, he must seek and obtain an order from the Second Circuit Court of Appeals before proceeding with a second § 2255 petition. The Second Circuit must certify a second or successive habeas petition to contain newly discovered evidence or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255. Huang's motion does not contain a claim of newly discovered evidence or a claim that the Supreme Court has made collateral review of his conviction retroactive.
Even if Huang received permission to file a second § 2255 petition, his claim to relief under Apprendi and Blakely will encounter a retroactivity obstacle. According to the Second Circuit, neither Apprendi nor Blakely apply retroactively to cases on collateral review. In Coleman v. United States, 329 F.3d 77, 79 (2d Cir.), cert. denied, 540 U.S. 1061 (2003), the Second Circuit held that Apprendi does not apply retroactively to § 2255 motions for habeas relief. Similarly, the Second Circuit has, thus far, refused to apply Blakely retroactively until the Supreme Court holds otherwise. See Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004); see also Concepcion v. United States, 328 F. Supp. 2d 372, 374 (E.D.N.Y. 2004) ("With regard to Concepcion's argument that Blakely applies retroactively to his motion, the Court disagrees.") (citation omitted); Garcia v. United States, No. 04 Civ. 465, 2004 U.S. Dist. LEXIS 14984, at *14 (N.D.N.Y. Aug. 4, 2004) ("It is the conclusion of this Court thatBlakely does not apply retroactively to § 2255 motions."). Accordingly, Huang's motion cannot succeed even if this Court could consider his argument on the merits.
Conclusion
Huang's motion for relief under Rule 35(a) of the Federal Rule of Criminal Procedure is denied.
IT IS SO ORDERED.