Opinion
01 Civ. 7194 (JFK)
April 25, 2002
Victor Morales, Reg. No. 33366-054, Elkton Federal Correctional Institution, Lisbon, OH., Petitioner, Pro Se.
Of Counsel: Karen B. Konigsberg, Assistant United States Attorney, JAMES B. COMEY, United States Attorney for the Southern District of New York, New York, For Respondent.
OPINION AND ORDER
Before the Court is Petitioner Victor Morales' ("Morales" or "Petitioner") pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). For the reasons outhned below, Petitioner's motion is denied.
BACKGROUND
On December 18, 1990, Morales pled guilty to Count One of a multi-count Indictment. Count One charged that Morales and others conspired to violate federal narcotics law by distributing and possessing with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A).
On July 18, 1992, this Court sentenced Morales to 18 years' imprisonment (216 months) and five years' supervised release. The remaining counts against Morales (Counts Two, Three and Five) were dismissed with the Government's consent. Morales appealed to the Second Circuit Court of Appeals. Morales argued that he should have been allowed to withdraw his guilty plea and that he was improperly sentenced as an "organizer or leader" under the United States Sentencing Guidelines ("U.S.S.G."). On January 25, 1993, the Second Circuit affirmed the judgment of this Court by summary order. The mandate was issued on February 18, 1993.
On June 4, 1993, Morales filed a Motion for a Downward Departure Based on Collateral Consequences Pursuant to U.S.S.G. § 5K2.O, which this Court construed as a § 2255 petition and denied. On August 22, 1996, Morales filed a § 2255 motion. On that date, then Chief Judge Griesa transferred the petition to the Seconcj Circuit, in keeping with the procedures outhned in 28 U.S.C. § 2244. On December 10, 1996, the Second Circuit denied Morales' petition to file a successive § 2255 petition. Morales then filed another application under § 2255 which Chief Judge Griesa transferred to the Second Circuit on July 30, 1997. On October 29, 1997, the Second Circuit remanded the case to this Court to determine whether Petitioner had notice of this Court's intent to construe his June 4, 1993 motion for a downward departure as a § 2255 petition and whether he had an opportunity to amend or withdraw the notice. The Second Circuit instructed that, if this Court decided that Petitioner had not been given such notice or opportunity, Petitioner should be instructed to file a § 2255 petition that included any grounds for attacking his conviction, and this petition should be treated as an initial § 2255 petition.
On December 12, 1997, this Court issued an order directing. Morales to complete and file a § 2255 form petition with the Court's Pro Se Office within 45 days of the date of the order, raising all possible grounds for challenging his conviction. The order informed Morales that if he did not complete and file the petition within 45 days, the case would be dismissed without prejudice. This Court subsequently extended the deadline until April 6, 1998, yet Morales did not file a petition. Thus, on June 5, 2001, this Court dismissed the case without prejudice. On June 14, 2001, Morales filed the instant habeas petition with the Pro Se Office, and the petition was docketed with the Court. on August 2, 2001.
In the present § 2255 petition, Morales argues that his indictment, conviction and sentence are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) because the indictment did not specify the drug amount or the statute identifying the penalty he faced, thus denying him his Fifth Amendment right to presentment and due process, and his Sixth Amendment right to a jury trial. Morales requests that the Court vacate his conviction, dismiss the indictment, and order his release.
DISCUSSION
I. Morales' Petition is Untimely
Morales' § 2255 petition fails because it is untimely. As discussed above, Morales failed to file this petition with the Pro Se Office until June 14, 2001, over three years after the extended deadline set by this Court and beyond the one-year limitations period set forth in § 2255. Since April 24, 1996, petitions filed under § 2255, with limited exception, must be filed within one year of the date that the petitioners s conviction becomes final. See Antiterrorism and Effective Death Penalty Act of 1996 (the "Act"), Pub.L. No. 104-132, § 105, 110 Stat. 1214, 1220, codified at 28 U.S.C. § 2255. In cases such as this one, where the petitioner's conviction became final before the Act's effective date, a § 2255 petition would still be timely if it was filed by April 24, 1997, one year from the effective date of the Act.See Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998).
Here the Second Circuit affirmed Morales' conviction on January 25, 1993. It became final on April 24, 1993, after Morales did not file a petition for certiorari with the Supreme Court during the ninety (90) day period following the conviction. See Diaz v. Scully, 821 F.2d 153, 156 (2d Cir.), cert. denied, 484 U.S. 933 (1987). Morales filed the instant petition with the Pro Se Office on June 14, 2001, more than eight years after his conviction became final and more than five years after the effective date of the Act. Even if the one-year limitations period for Morales to file was measured from December 12, 1997, the date that this Court ordered Morales to file a § 2255 petition containing all grounds for challenging his conviction, Morales' petition would still be untimely.
Section 2255 states that a petition is timely if it is filed within one year of "the date on which the right asserted [in the petition] was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255. This provision does not apply to the present case, however, because, as discussed below, Apprendi does not apply retroactively to cases on collateral review. Therefore, Morales' § 2255 petition fails as untimely.
II. Petitioner's Reliance on Apprendi is Misplaced
A. Apprendi Does Not Apply Retroactively on Collateral Review
In Apprendi, the Supreme Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt." Id. at 490. Apprendi was decided after Morales' plea and sentencing. For Apprendi to apply to this case, the rule announced must be "new".
In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court defined a "new rule" as one that "breaks new ground or imposes a new obligation on the States or the Federal Government," and was not dictated by precedent at the time that the petitioner's conviction became final. Id. at 301. By this standard, Apprendi is a new rule. However, Teague also holds that a new rule of criminal procedure cannot form the basis for retroactive collateral review unless the case falls into one of two exceptions. Id. at 307.
The Second Circuit has construed Teague to recognize two exceptions to the general rule that new rules of constitutional procedure are not retroactive on collateral review: (1) new rules which "place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense;" and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding." Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997) (quoting Sawyer v. Smith, 497 U.S. 227, 241-42 (1990)), cert. denied, 527 U.S. 1021 (1999). The first exception is inapplicable because Apprendi does not decriminalize any conduct. The second exception is inapplicable because the new rule set forth in Apprendi does not qualify as a "watershed rule" because it does not "alter our understanding of the bedrock procedural elements."Teague, 489 U.S. at 311. The procedure at issue would have to implicate the "fundamental fairness of the trial and its absence would have to create an "impermissibly large risk that the innocent will be convicted."Id. at 312. The new rule announced in Apprendi, which merely shifts determination of the factors that enhance a maximum statutory penalty from the judge to the jury, clearly does not meet this high standard.
The Second Circuit has found that Apprendi does not apply retroactively to second or successive petitions under § 2255 because "it is clear that Apprendi is not a new rule of constitutional law which has been made retroactive to cases on collateral review by the Supreme Court." Forbes v. United States, 262 F.3d 143, 145 (2d Cir. 2001). Although the Forbes Court did not rule as to Apprendi's retroactive application to initial § 2255 petitions, see id. at 146, n. 5, the Second Circuit addressed a similar question in Bilzerian. In Bilzerian, the Second Circuit determined that the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506 (1995), which shifted the determination of materiality in an 18 U.S.C. § 1001 prosecution from the judge to the jury, was not a watershed rule justifying retroactive collateral review. See Bilzerian, 127 F.3d at 241; see also United States v. Mandanici, 205 F.3d 519, 529-30 (2d Cir.), cert. denied, 531 U.S. 879 (2000) ("[T]he rule requiring proof of materiality beyond a reasonable doubt for conviction under § 1001 does not fit within the second Teague exception"). Under these Second Circuit cases, the second Teague exception does not apply to the new rule announced in Apprendi.
The Fourth, Eighth, Ninth and Eleventh Circuits have also held thatApprendi should not be applied retroactively to cases on collateral review. See McCoy v. United States, 266 F.3dU245, 1258 (11th Cir. 2001),cert. denied, 122 S.Ct. 848 (2002); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2290). Similarly, the majority of District Courts that have eddressed the issue have reached the same conclusion, often citing the Second Circuit cases of Bilzerian and Mandanici in fading that Apprendi's "shifting an element of the offense" from judge to jury "does not implicate fundamental fairness." See United States v. Pittman, 120 F. Supp.2d 1263, 1270 (D. Ore. 2000), aff'd, 2002 WL 464701 (9th Cir. Mar. 22, 2002); accord United States v. Lang, 159 F. Supp.2d 398, 401-02 (N.D. Tex. 2001); United States v. Goode, 143 F. Supp.2d 817, 823 (E.D. Mich. 2001); Rivera v. United States, 136 F. Supp.2d 263, 264 (S.D.N Y 2001); United States v. Latney, 131 F. Supp.2d 31, 33-34 (D.D.C. 2001); Ware v. United States, 124 F. Supp.2d 590, 600 (M.D. Tenn. 2000); United States v. Seehausen, 98 Cr. 511, 2000 WL 1809993, at *2 (N.D. Ill. Dec. 11, 2000); United States v. Johnson, 126 F. Supp.2d 1222, 1226 (D. Neb. 2000); United States v. Gibbs, 125 F. Supp.2d 700, 706-07 (E.D. Pa. 2000); Klein v. United States, 125 F. Supp.2d 460, 467 (D. Wyo. 2000); West v. United States, 123 F. Supp.2d 845 (D. Md. 2000), aff'd, United States v. West, 246 F.3d 671 (table) (4th Cir. 2001). The Court finds cases to the contrary unpersuasive. See Parise v. United States, 135 F. Supp.2d 345, 349 (D. Conn. 2001); United States v. Shark, 158 F. Supp.2d 43 (D.D.C. 2001); United States v. Hernandez, 137 F. Supp.2d 919 (N.D. Ohio 2001).
B. Apprendi is Not Applicable to Sentences Falling Below the Statutory Maximum for the Offense
Morales pled guilty to participating in a conspiracy in violation of 21 U.S.C. § 846. The charged object of the conspiracy was to violate 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). Section 846 states that the penalty for conspiracy is the same as the penalty for the crime that was the object of the conspiracy. Section 841(b) specifies the sentence for violation of § 841(a). Under § 841(b), the maximum statutorily authorized sentence for a violation of § 846 involving even the minimum quantity of heroin is 20 years, or 240 months. See 21 U.S.C. § 846, 841(b)(1)(C).
The Second Circuit has repeatedly held that Apprendi is not implicated when a judge imposes a sentence within the statutory maximum sentence authorized by the jury's findings, or by analogy, the facts admitted during the defendant's plea allocution. See United States v. Chavez, 267 F.3d 76, 79 (2d Cir. 2001), cert. denied, 122 S.Ct. 1115 (2002);United States v. McLeod, 251 F.3d 78, 82 (2d Cir.), cert. denied, 122 S.Ct. 304 (2001); United States v. Garcia, 240 F.3d 180, 183 (2d Cir.),cert. denied, 121 S.Ct. 2615 (2001); United States v. White, 240 F.3d 127, 136 (2d Cir. 2001).
Morales' plea of guilty to conspiring to distribute heroin, no matter the. amount, subjected him to imprisonment for up to 20 years, or 240 months. Because his sentence of 18 years, or 216 months, is within the statutory maximum, Apprendi is inapplicable and affords Morales no basis for relief.
Because Apprendi does not apply retroactively on collateral review, or to sentences within the statutory maximum for the offense, Morales cannot rely on Apprendi in his § 2255 petition.
III. Petitioner's Claims are Factually Incorrect
Morales' petition must also fail because it is factually incorrect. Morales' claims that his indictment did not specify the amount of drugs being charged and did not provide notice of the sentencing parameters are incorrect. The indictment's charge that Morales and others conspired to distribute and possess with intent to distribute "one kilogram or more" of heroin is sufficiently specific. See United States v. Coleman, 99 Cr. 867, 00 Civ. 6671, 2001 WL 262738, at *1 (S.D.N.Y. Mar. 15, 2001) (finding indictment that charged defendant and others with "conspiracy to distribute and possess with intent to distribute 1 kilogram and more of heroin" sufficient to provide defendant with "specific notice of the quantity and nature of the drug at issue, and thus of the sentencing parameters"). Additionally, Second Circuit case law indicates that drug amount and type are not essential elements of a charge of "possession of narcottcs with intent to distribute." Essential elements are, rather, "that a defendant knowingly possessed a quantity of drugs and that he did so with the specific intent to distribute them." United States v. Martinez, 44 F.3d 148, 151 (2d Cir.) (citing United States v. Latham, 874 F.2d 852, 863 (1st Cir. 1989)), vacated on other grounds, 54 F.3d 1040 (2d Cir.), cert. denied, 516 U.S. 1001 (1995). A defendant's knowledge that the substance distributed is some type of narcotic, irrelevant of type or quantity, is sufficient for conviction under § 841(a). See United States v. Morales, 577 F.2d 769, 776 (2d Cir. 1978) (drug type not an element of § 841(a)(1)).
Morales' petition actually states that the indictment did not specify the amount of cocaine he conspired to distribute. His indictment, guilty plea and sentencing were all based on his participation in a conspiracy to distribute (and possession with intent to distribute) heroin — there is no mention of cocaine. Even if Morales' claim referred to heroin, however, it would still be factually incorrect for the reasons outlined above.
Moreover, the indictment charged Morales with conspiracy in violation of 21 U.S.C. § 846, the object of which was to distribute and possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). Section 846 clearly states that the penalties for a violation of that section are the same as the penalties for the crime that was the object of the conspiracy, and § 841(b)(1)(A) sets forth the penalties for a violation of § 841(a). Additionally, Morales was advised of the potential penalties during his guilty plea. Morales' petition fails because thLe indictment clearly indicated the crime charged and Morales was advised of the sentencing parameters during his plea allocution.
CONCLUSION
For the reasons outhned above, Morales' § 2255 motion is hereby denied. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). This case is closed and the Court directs the Clerk of the Court to remove this case from the court's active docket.