Opinion
Civil Action No. 1:06v29.
June 6, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Movant Jimmy Dale Martin, an inmate confined within the Bureau of Prisons, proceeding pro se, brings this Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Factual Background and Prior Proceedings
In 1992, following a jury trial, movant was convicted of: (1) conspiring to manufacture methamphetamine, in violation of 21 U.S.C. § 846; (2) possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) and (3) using or carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). He was sentenced to life imprisonment plus five years. The convictions and sentence were affirmed by the United States Court of Appeals for the Fifth Circuit in an unpublished opinion. United States v. Martin, No. 92-5080 (5th Cir. June 25, 1993).
Ground for Review
Movant, citing the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), contends his convictions and sentence are invalid because his indictment failed to specify the amount of methamphetamine involved in his offense and the jury failed to determine beyond a reasonable doubt how much metham-phetamine was involved in his offense.
Standard of Review
A court may grant relief under 28 U.S.C. § 2255 only for a "transgression of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). "A collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). "Non-constitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding." Vaughn, 955 F.2d at 368.
Analysis
In Apprendi, the Supreme Court held that any fact, other than the fact of a prior conviction, which increases the penalty for a crime beyond the prescribed statutory maximum, must be alleged in the indictment, submitted to the jury and proved beyond a reasonable doubt. Drug quantity determinations are critical to the statutory sentencing provisions of 21 U.S.C. § 846. Depending on the type and the amount of drugs involved, the maximum penalty for a drug-related offense increases from 20 years to life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A) and (b)(1)(C). As a result, under normal circumstances, "if the government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt." United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000).
Apprendi was convicted in a New Jersey state court of possession of a firearm for an unlawful purpose, an offense punishable by imprisonment for five to ten years. At sentencing the judge, by a preponderance of the evidence, found that Apprendi had committed the crime with a purpose to intimidate individuals because of their race. Under state law, this finding served to increase Apprendi's sentence to between ten and twenty years.
However, in United States v. Brown, 305 F.3d 304 (5th Cir. 2002), the Fifth Circuit concluded that the rule announced in Apprendi created a new rule of criminal procedure that did not apply to cases on collateral review. As Apprendi was not decided until after movant's conviction became final, Apprendi does not provide him with a basis for relief in this proceeding.
Movant also asserts that his indictment is defective because the count of the indictment concerning his Section 924(c) conviction merely accused him of using a firearm in connection with a drug trafficking offense. This contention is without merit as the copy of the indictment attached to the motion to vacate alleged movant "did knowingly use and carry a firearm . . . during and in relation to a drug trafficking crime. . . ."
Recommendation
This motion to vacate, set aside or correct sentence should be denied.Objections
Objections must be (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(b) and 72(b).
A party's failure to file objections bars that party from (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass'n., 79 F.3d 1415, 1429 (5th Cir. 1996) ( en banc).