Jean v. U.S.

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

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

Date published: Apr 4, 2000

99 CV 8702 (RR) (E.D.N.Y. Apr. 4, 2000)

Opinion

99 CV 8702 (RR)

April 4, 2000

TIMOTHY I. CUMMINGS, Esq. Brooklyn, NY, Attorney for Movant.

HONORABLE LORETTA E. LYNCH, UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF NEW YORK, By: Michael Warren, Esq., Attorney for Respondent.

Memorandum and ORDER

RAGGI, United States District Judge.

Federal prisoner Jean Jean petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Jean was convicted in 1997 after a jury trial of conspiring to import cocaine, 21 U.S.C. § 963, importation of cocaine, 21 U.S.C. § 952, and possession of cocaine with intent to distribute it, 21 U.S.C. § 841. The evidence revealed that Jean exploited his position as a skycap at John F. Kennedy airport to help smuggle drug-filled suitcases into the United States. On October 21, 1997, this court sentenced petitioner to concurrent terms of 235-months' incarceration, which represented the low-end of his guideline range.¹ Jean appealed, arguing prosecutorial misconduct in summation. The Court of Appeals affirmed by summary order. See United States v. Jean, 164 F.3d 620 (2d Cir. 1998). Its mandate issued October 14, 1998, and Jean did not petition the Supreme Court for a writ of certiorari.

1 Two factors were critical to the calculation of Jean's guidelines: (1) the very large quantity of drugs involved in his case — over 185 kilograms of cocaine and approximately 700 grams of heroin; and (2) petitioner's perjury at trial, which the court found to constitute obstruction of justice. The court did award Jean a two-point reduction for playing a minor role in the offenses.

Instead, in a petition dated December 13, 1999, Jean filed the pending collateral challenge to his conviction. Petitioner submits that his sentence is unconstitutional because the Sentencing Guidelines (1) improperly delegate judicial power to the legislative and executive branches of government, and (2) disproportionately punish drug offenders relative to other non-violent felons. The United States opposes the petition arguing that it is untimely, procedurally barred, and without merit. Jean has not responded to these arguments. Having carefully reviewed the parties' submissions as well as relevant portions of the underlying record, this court concludes that the timeliness question cannot be resolved without further briefing. The court does not order such briefing because, even if Jean's petition is deemed timely, the petition is procedurally barred and without merit.

Discussion

I. Timeliness

The Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), establishes a one-year limitations period for filing habeas corpus petitions pursuant to 18 U.S.C. § 2255, the time to run from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255 (1). The United States submits that Jean's petition is untimely because his conviction became final on October 14, 1998, the date the Court of Appeals issued its mandate, but he did not seek collateral relief from this court until December 13, 1999, fourteen months later.²

2 Jean's petition was not docketed with the court until December 23, 1998. Because motions under § 2255 are deemed to have been filed on or about the date they are delivered to prison officials for filing with the court, see Houston v. Lack, 487 U.S. 266 (1988), this court assumes that Jean's petition was delivered on the date he signed the motion, i.e., December 13, 1998.

The Second Circuit has yet to rule on when a judgment becomes "final" for purposes of § 2255. In United States v. Reyes, 49 F.3d 63 (2d Cir. 1995), it held that the "two years after final judgment" period for filing a motion under Fed.R.Crim.Pro. 33 would run from the date its mandate issued. The Seventh Circuit has also relied on its mandate date to define finality for purposes of§ 2255, at least in the cases of those petitioners who have not sought certiorari review from the Supreme Court. See Gendron v. United States, 154 F.3d 672, 674 (7^th Cir. 1998), cert. denied sub nom. Ahitow v. Glass, 119 S.Ct. 1758 (1999). But a number of other circuits have ruled that a conviction does not become final for purposes of § 2255 until the Supreme Court denies certiorari or the ninety-day period for seeking certiorari review expires. See United States v. Thomas, 203 F.3d 350, 352-54 (5^th Cir. 2000); Rhine v. Boone, 182 F.3d 1153, 1155 (10^th Cir. 1999), cert. denied, 120 S.Ct. 808 (2000); United States v. Kapral, 166 F.3d 565 (3d Cir. 1998).

Jean's December 13, 1999 petition is plainly untimely if the one-year limitations period is measured from the Second Circuit's October 14, 1998 mandate. If, however, his conviction did not become final until January 13, 1999, when his time to file for certiorari review expired, then his petition is timely.

The United States did not address this issue in its submission to the court. If its resolution were critical to Jean's petition, this court would invite further briefing. It does not do so because, even if Jean's petition were found to be timely, no relief would be warranted since petitioner's claims are procedurally barred and, in any event, without merit.

II. Procedural Bar

Jean did not raise his constitutionality challenges to the Sentencing Guidelines on direct appeal. As a rule, a prisoner who fails to raise an issue on direct appeal cannot subsequently pursue it in a § 2255 petition unless he shows both good cause to excuse his default and ensuing prejudice or, in the alternative, a fundamental miscarriage of justice.See Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993); Campino v. United States, 968 F.2d 187, 189-90 (2d Cir. 1992). Jean does not even attempt to make these showings. He simply states that he does not know why his retained counsel did not raise these arguments. That is not enough to overcome the procedural bar, particularly since Jean does not suggest that his attorney was constitutionally ineffective. This court hereby dismisses Jean's petition since it raises claims that were defaulted on direct appeal.

III. Merits

Even if Jean's petition were not procedurally barred, he would not be entitled to a writ of habeas corpus since his claims are without merit.

To the extent Jean argues that the Sentencing Guidelines unconstitutionally usurp judicial power in favor of the legislative and executive branches, he pursues a variation on a theme already rejected by the Supreme Court in Mistretta v. United States, 488 U.S. 361 (1988) (upholding Sentencing Guidelines against broad constitutionality challenge); accord United States v. Vizcaino, 870 F.2d 52, 54-57 (2d Cir. 1989) (rejecting due process challenge to sentence within guideline range).

Similarly without merit is Jean's argument that the guidelines are unconstitutional because they disproportionately punish drug defendants as compared to other non-violent offenders. Preliminarily, the court notes that it is Congress, not the Sentencing Commission, that has provided for large scale drug traffickers to be punished more severely than other non-violent felons. The penalty provisions of 21 U.S.C. § 841 (b) require increasingly severe sentences depending on the quantity of drugs dealt by a defendant. When, as in this case, a defendant deals in more than five kilograms of cocaine, he "shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life." 21 U.S.C. § 841 (b)(1)(A)(ii)(II). The Supreme Court has already rejected the argument that a statutory sentence of life imprisonment for drug dealing is constitutionally disproportionate. See Harmelin v. Michigan, 501 U.S. 972 (1991) (upholding sentence of life without parole for trafficking in 650 grams of cocaine). See also United States v. Hoyt, 879 F.2d 505, 512-13 (9^th Cir. 1989) (rejecting constitutionality challenge to mandatory minimum sentences in 21 U.S.C. § 841 (b)(1)(A)); United States v. Holmes, 838 F.2d 1175, 1178-79 (11^th Cir. 1988) (same). Viewed in this light, the drug quantity scale established by the Sentencing Commission is a permissible vehicle for guiding courts as they distinguish between those large-scale traffickers who should receive sentences closer to the minimum provided by Congress and those who should receive more severe penalties, up to the statutory maximum of life.

The court hereby rejects Jean's challenges to the constitutionality of his sentences.

Conclusion

Assuming arguendo that Jean's § 2255 petition is timely filed, the court nevertheless finds that it must be denied because (1) petitioner's failure to raise his claims on direct appeal procedurally bars their collateral review by this court, and (2) the claims advanced herein are all without merit. The petition is denied as is a certificate of appealability. The Clerk of the Court is to enter judgment in favor of the United States and to mark the case closed.