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noting that Shepard was based on rule announced in Apprendi which does not to apply on collateral review
Summary of this case from Little v. HamidullahOpinion
Criminal No. 99-229(3) ADM/AJB, Civil No. 03-980 ADM.
April 7, 2005
Jon M. Hopeman, Esq., and Eric J. Riensche, Esq., Felhaber Larson Fenlon Vogt, Minneapolis, MN, on behalf of Petitioner Mateo R. Morales.
Jeffrey S. Paulsen, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Respondent United States of America.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Petitioner Mateo R. Morales' ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 [Docket Nos. 269 (criminal), 1 (civil)]. While his § 2255 Motion was pending, the United States Supreme Court decidedBlakely v. Washington, 124 S. Ct. 2531 (2004). On July 26, 2004, Petitioner filed a Motion for Relief under Blakely v. Washington [Docket No. 307] in which he sought permission from the Court to brief and present oral argument on the issues raised by Blakely. Blakely cast doubt on the validity of federal sentencing. Consequently, the Court agreed that the impact ofBlakely on Petitioner's particular circumstances warranted further exploration and requested both parties to brief the Blakely issues in an Order dated July 30, 2004 [Docket No. 310]. To clarify Blakely's import, the Supreme Court grantedcertiorari in United States v. Booker and United States v. Fanfan. 125 S.Ct. 738 (2005). Furthermore, Petitioner also challenged whether Blakely impacted the manner in which courts determine whether predicate offenses count for purposes of career offender status. Petitioner's memorandum requested the Court await the Supreme Court's decision in Shepard v. United States, 125 S. Ct. 1254 (2005), which concerned this issue, before ruling on his § 2255 motion. As the Supreme Court has issued its decisions in Booker, Fanfan, and Shepard, Petitioner's § 2255 motion is now ripe for review. For the reasons set forth below, Petitioner's Motion is denied.
II. BACKGROUND
Petitioner challenges the length of his sentence in this § 2255 Motion. He argues his Sixth Amendment right to a jury trial was violated when the Court enhanced his sentence based on findings that were not determined by a jury (drug quantity, career offender status). In August 1999, Petitioner was charged in an indictment with one count of conspiracy to manufacture in excess of 50 grams of methamphetamine (Count 1) [Docket No. 28]. On November 9, 1999, after a jury trial with his codefendants, Petitioner was convicted of conspiring to manufacture methamphetamine in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) [Docket No. 171].
Petitioner was sentenced on April 21, 2000 [Docket No. 209]. The United States Sentencing Guidelines ("USSG") address violations of 21 U.S.C. §§ 846, 841(b)(1)(A) in § 2D1.1 of the USSG. Petitioner received a base offense level of 28 because of a finding that the conspiracy involved at least 50 grams of methamphetamine. See USSG § 2D1.1(c)(5). Petitioner's offense level was then enhanced by a finding that he is a career offender. This upward enhancement resulted in a total offense level of thirty-seven. See USSG § 4B1.1. Petitioner's status as a career offender rendered the other sentencing factor present in this case (hazardous or toxic substances) moot; under the USSG, the total offense level is enhanced to 37 for a career offender with a statutory maximum of life, regardless of disputed applications of specific offense characteristics and role enhancements. See USSG § 4B1.1; Morales PSR ¶¶ 32-40. The Court found that all of the aforementioned factual findings were supported by a preponderance of the evidence and sentenced Petitioner to a term of 360 months as a level 37 Criminal History VI offender.
Petitioner directly appealed his conviction to the Eighth Circuit Court of Appeals [Docket No. 212], which affirmed the judgment of the District Court. United States v. Anderson, 236 F.3d 427 (8th Cir. 2001). Petitioner did not file a petition to the United States Supreme Court for a writ of certiorari.
Petitioner filed a self-styled motion with the District Court on March 21, 2001 [Docket No. 225]. Petitioner characterized the motion as a Petition for Right of Review, pursuant to 5 U.S.C. § 702. The District Court reclassified the motion as a § 2255 Motion and denied Petitioner's motion in an Order dated June 12, 2001 [Docket No. 234]. Petitioner subsequently appealed the District Court's reclassification of his Petition for Right of Review to the Eighth Circuit. On September 6, 2002, the Eighth Circuit reversed and remanded the proceeding on the grounds that the District Court had not warned Petitioner of the consequences of reclassification and had not given Petitioner an opportunity to withdraw his Petition. Morales v. United States, 304 F. 3d 764 (8th Cir. 2002). Pursuant to the Eighth Circuit decision, the District Court granted Petitioner an opportunity to withdraw his prior Petition for Right of Review and instead file this § 2255 Motion.
On January 30, 2003, Petitioner filed the instant § 2255 motion [Docket No. 269] collaterally attacking his sentence on several grounds, including an allegation that his constitutional right to be sentenced on the basis of reliable information was violated by the lack of trial evidence regarding Petitioner's particular methamphetamine production capabilities. In an Order dated December 18, 2003 [Docket No. 296], this Court denied all of Petitioner's claims except the Due Process claim relating to drug quantity determination. An evidentiary hearing was held on this issue on May 7, 2004 [Docket No. 305]. Before the Court issued its findings on the evidentiary issue, Petitioner filed a Motion for Relief under Blakely v. Washington. Four days later, the Court issued an Order [Docket No. 310] noting, "under the applicable law at the time of Petitioner's sentencing, and the attendant preponderance of the evidence standard, the § 2255 Motion would be denied and Petitioner's sentence would stand." July 30, 2004 Order at 4. However, the Court recognized the unsettled nature of the legal landscape and requested the parties brief the Blakely issue before it conclusively resolved Petitioner's § 2255 Motion.
III. DISCUSSION
28 U.S.C. § 2255 provides persons in federal custody a limited opportunity to collaterally attack the constitutionality, jurisdictional basis or legality of the sentence prescribed by the court. See United States v. Addonizio, 442 U.S. 178 (1979). Petitioner argues that, under Blakely v. Washington, his Sixth Amendment right to a fair trial was violated. 124 S. Ct. 2531 (2004). Since Petitioner filed his motion, the Supreme Court has extended its holding in Blakely to apply to the USSG. United States v. Booker, 125 S. Ct. 738. Petitioner argues this Court violated his Sixth Amendment rights, as announced in Blakely andBooker, in finding by a preponderance of the evidence that his sentence should be enhanced under the drug quantity and career offender provisions of the USSG. Petitioner argues that his sentence, based solely on facts determined by the jury beyond a reasonable doubt, must be in the range of thirty to thirty-seven months. Thus, Petitioner contends that Blakely and Booker demand his immediate release.
A. The Government's Procedural Objection
As a threshold matter, the Respondent, United States of America ("Government"), argues the Blakely issues are not properly before this Court. Mem. of the United States in Opp'n to Morales' Mem. in Supp. of Blakely Relief [Docket No. 314] at 1. The Court did issue its July 30, 2004 Order requesting the parties brief the Blakely issues only four days after Petitioner filed his motion without awaiting the Government's position on whether briefing of Blakely's applicability was warranted. However, the Government offered no objections when the parties determined their own briefing schedule pursuant to the July 30th Order. Petitioner argues that under Local Rule 7.1(d) for the District of Minnesota, the Government waived its procedural objections by raising these objections only in the Government's opposition memorandum to this motion. The Court finds Local Rule 7.1(d) does not bar the procedural objections. The Court has authority under the Rule to "proceed in such other manner as the Court deems appropriate." Local Rule 7.1(d). Thus, the Government has not waived its procedural objections by failing to raise them prior to the filing of its opposition memorandum.
The Court will reach the merits of Petitioner's Blakely claims. The claims, as they relate to the Court's drug quantity findings, are amendments to his § 2255 Motion and are not time-barred under § 2255's one year period of limitation because they "relate back" to the date of the original § 2255 Motion. Under Federal Rule of Civil Procedure 15(c), an amendment to a pleading "relates back" to the date of the original pleading when the claim asserted in the amended pleading arises out of the same conduct, transaction, or occurrence as the original pleading. Because Petitioner's Blakely claims arise out of the same set of facts as the original 2255 Motion, his amendments "relate back" to the date of the original § 2255 Motion and are not time-barred by the one year period of limitation. See United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999). Accordingly, the Government's procedural objections to Petitioner's Blakely claims, as they relate to drug quantity, are denied.
For the first time, in his Memorandum in Support of Blakely Relief, Petitioner argues Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Blakely may apply to Criminal History determinations. As a result, Petitioner argues this Court should review whether Petitioner is entitled to an evidentiary hearing concerning whether his convictions satisfy the armed career criminal statute. In his § 2255 proceedings, Petitioner has not previously challenged the validity of his career offender status. Furthermore, Apprendi specifically noted that the fact of a prior conviction is for the court to determine, not a jury. See Apprendi, 530 U.S. at 490. Consequently, the Court finds Petitioner's collateral challenge to his career offender status does not relate back to his original § 2255 petition and is therefore untimely. As a result, the Government's procedural objection to Petitioner's career offender status claim is granted. B. Petitioner's Blakely / Booker Claims
In Blakely, the Supreme Court held the Sixth Amendment prohibits sentences greater than "the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant." 124 S. Ct. at 2537. Applying the principles first announced in Apprendi, and affirmed in Blakely, Booker found that the system of enhancements established by the Guidelines violated the Sixth Amendment. See 125 S. Ct. at 749-50. The Supreme Court resolved this conflict by excising the provision of the Sentencing Reform Act that made the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), effectively rendering the Guidelines advisory. Booker, 12 S. Ct. at 756-57; see also Green v. United States, 2005 U.S. App. LEXIS 1652, * 2-3 (2d Cir. February 2, 2005).
Although Petitioner brought his § 2255 based on Blakely's rationale, Blakely reserved judgment about the status of the federal sentencing guidelines. Blakely, 124 S. Ct. at 2538 n. 9. Since Booker expressly considered whether the USSG violated the Sixth Amendment, the Court finds the appropriate question in the instant matter is whether Booker's rationale applies retroactively to cases on collateral review. See McReynolds v. Bennett, 2005 U.S. App. LEXIS 1638, * 6-7 (7th Cir. Feb. 2, 2005), Humphress v. United States, 2005 U.S. App. LEXIS 3274, * 2 (6th Cir. Feb. 25, 2005). Because Petitioner's avenue of relief is a § 2255 motion, Booker's rationale is pertinent only if its holding applies retroactively to cases on collateral review.
1. Does Booker Announce a Substantive or Procedural Rule?
Although the Supreme Court has stated that new rules apply to all criminal cases on direct review, such rules are only retroactively applicable to cases on collateral review in limited circumstances. Schiro v. Summerlin, 124 S. Ct. 2519, 2522 (2004). While new substantive rules generally apply retroactively, new procedural rules do not. Id. at 2522-23. "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural." Id. at 2523 (citations omitted) (emphasis in original).
The rule announced by Booker does not alter the range of conduct or the class of persons that the law pursues. Booker simply affects the method for determining the appropriate length of punishment. See Summerlin, 124 S. Ct. at 2523. The Supreme Court has stated "[r]ules that allocate decision making authority in this fashion are prototypical procedural rules." Id. at 2523-24 (holding that a rule requiring a jury rather than a judge to find the facts essential to the death penalty is a procedural rule, while a rule that a particular fact is essential to the death penalty is a substantive rule). Therefore, the rule announced in Booker is procedural, rather than substantive, in nature. Accord Humphress, 2005 U.S. App. LEXIS at *11, n. 1;McReynolds, 2005 U.S. App. LEXIS at *3-7.
2. Does Booker 's Procedural Rule Apply Retroactively to Initial § 2255 Motions?
In Teague v. Lane, the Supreme Court set forth a three-step analysis for determining whether a procedural rule applies retroactively to cases on collateral review. 489 U.S. 288; see also Beard v. Banks, 124 S. Ct. 2504, 2510 (2004). First, the reviewing court must determine the date when the defendant's conviction became final. Id. Second, the Court must decide whether the rule at issue is actually "new." Id. If so, the court must then determine whether the new rule falls into "one of the two narrow exceptions to the Teague doctrine." O'Dell v. Netherland, 521 U.S. 151, 156-57 (1997).
a. Date Petitioner's Conviction Became Final
"A conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal . . . has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (citation omitted). The Eighth Circuit's Order affirming the District Court's judgment was filed on January 5, 2001. See Anderson, 236 F.3d 427. Although Petitioner did not file a petition for a writ of certiorari with the United States Supreme Court, Rule 13(1) of the Rules of the United States Supreme Court provided him with 90 days in which to do so. As a result, Petitioner's conviction was final on April 6, 2001, years before the Supreme Court decided Booker on January 12, 2005.
b. Was the Rule Announced by Booker "New"?
For Teague purposes, a rule is "new" if it "breaks new ground." Teague, 489 U.S. at 301. In determining whether a case announces a new rule, a court must ask whether the result was "dictated" by existing precedent at the time the defendant's conviction became final. See id.; Beard, 124 S. Ct. at 2511. In other words, whether "the unlawfulness of [defendant's] conviction was apparent to all reasonable jurists." Beard, 124 S. Ct. at 2511 (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997)).
The rule announced by Booker was not dictated by existing precedent at the time Petitioner's conviction became final and it was not apparent to all reasonable jurists that his conviction was unlawful. The conclusion that Booker promulgated a new rule is supported by several facts. First, the Supreme Court expressly stated that Booker's holding applies to "all cases on direct review." Booker, 125 S. Ct. at 769. Such a pronouncement would not have been necessary if the result inBooker was dictated by precedent. Second, until Booker was issued, the federal judiciary was deeply divided as to whether the rule announced in Blakely would apply to the USSG. Blakely expressly reserved judgment about the status of the USSG. Blakely, 124 S. Ct. at 2538 n. 9. Some Circuits, in divided opinions, found the USSG violated the Sixth Amendment.See United States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004) (Easterbrook, J., dissenting); United States v. Ameline, 376 F.3d 967, 984 (9th Cir. 2004) (Gould, J., dissenting).Booker itself was decided over a four justice dissent.Booker, 125 S. Ct. at 807 (Breyer, J., dissenting) (arguing that factual distinctions "offer a principled basis" for refusing to extend Blakely and Apprendi to the USSG). For all of these reasons, the Court finds Booker was not dictated by existing precedent and reasonable jurists would not have felt compelled to conclude its rule was constitutionally required. See O'Dell, 521 U.S. at 156.
It is illustrative that the Eighth Circuit did not reach a conclusion on the matter. See United States v. Mooney, 2004 U.S. App. LEXIS 16302 (8th Cir. 2004) (granting en banc hearing and vacating the Court's July 23, 2004 opinion and judgment). Furthermore, the Second, Fourth, Fifth and Eleventh Circuits heldBlakely did not compel the conclusion that the USSG violated the Sixth Amendment. See United States v. Mincey, 380 F.3d 102 (2d Cir. 2004); United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (en banc); United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004); United States v. Koch, 383 F.3d 436 (6th Cir. 2004) (en banc); United States v. Reese, 382 F.3d 1308 (11th Cir. 2004).
c. Is Booker 's Rule Retroactively Applicable Under an Exception to Teague ?
Procedural rules are not retroactively applicable to cases on collateral review unless they fall into one of Teague's two narrow exceptions. The first exception applies to a rule that "places certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague, 489 U.S. at 307. This exception is clearly not implicated byBooker's holding. See Humphress, 2005 U.S. App. LEXIS at *6; see also United States v. Moss, 252 F.3d 993, 997 n. 3 (8th Cir. 2001) (holding Apprendi does not implicate Teague's first exception).
The second exception applies to "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." O'Dell, 521 U.S. at 157 (quotation omitted). The Supreme Court has defined this exception narrowly to include only a "small core of rules requiring the observance of those procedures that . . . are implicit in the concept of ordered liberty." Id.
Although the Supreme Court has not explicitly considered whether Booker's holding applies retroactively to cases on collateral review, the Court's decision in Summerlin is instructive. Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002), which extended Apprendi to prohibit a judge, rather than a jury, from finding the existence of certain aggravating factors warranting imposition of the death penalty, did not announce a "watershed rule of criminal procedure." Summerlin, 124 S. Ct. at 2524-26; see also Blakely, 124 S. Ct. at 2548-49 (O'Connor, J., dissenting) (recognizing the Court's holding in Summerlin, "that Ring (and a fortiori Apprendi) does not apply retroactively on collateral review"). The Court reasoned that Ring did not announce a watershed procedural rule because it was implausible to believe "judicial factfinding soseriously diminishes accuracy as to produce an impermissibly large risk of injustice." Id. at 2525 (emphasis in original) (internal quotation marks omitted). As a result, the Court held Ring was not retroactively applicable to cases on collateral review. See also United States v. Moss, 252 F.3d at 997-1001 (finding that the Apprendi "rule is not of watershed magnitude").
Because Booker, like Ring, is based on an extension ofApprendi, Summerlin's reasoning applies to Booker with equal force. Booker effectively rendered the USSG advisory and provided appellate review to ensure district judges applied the USSG reasonably. As in Ring, "no primary conduct has been made unlawful, and none of the many factors that affect sentences under the Sentencing Guidelines have been declared invalid."McReynolds, 2005 U.S. App. LEXIS at *5. Booker does not shift any decision from judge to jury, or reallocate the burden of persuasion. It only provides judges with more flexibility in applying the guideline system. Consequently, nothing suggests the judicial factfinding at issue in Booker is "either less accurate or creates a greater risk of punishing conduct the law does not reach than did the judicial factfinding addressed inRing." Humphress, 2005 U.S. App. LEXIS at *20-21. As a result, there is no evidence that Booker announced a watershed procedural rule.
For the aforementioned reasons, this Court concludes the rule announced in Booker is not applicable to cases on collateral review.
3. Career Offender Enhancement
Petitioner does not contest the validity of his prior convictions but argues, under Booker and Shepard, a jury should have determined whether they constituted "crimes of violence" for purposes of the career offender enhancement. See USSG § 4B1.1. Even were Petitioner's collateral challenge to his career offender status timely, which this Court has already determined it is not, neither Booker nor Shepard support Petitioner's demand for a sentence reduction. As noted, Booker does not retroactively apply to cases on collateral review. Even were Booker to apply collaterally, the Supreme Court has consistently held that the fact of a prior conviction is for the court to determine, not a jury. See Apprendi, 530 U.S. at 490; Booker 125 S. Ct. at 756; see also United States v. Nolan, 2005 U.S. App. LEXIS 2230, *5 (8th Cir. Feb. 11, 2005); United States v. Muro-Mendoza, 2005 U.S. App. LEXIS 4555, *3-7 (8th Cir. Mar. 21, 2005). "The facts that a court uses to determine career offender status are not the sort of facts that a jury must determine but facts that have been determined in previous judicial proceedings." United States v. Barrett, 2004 U.S. Dist. LEXIS, *2 (W.D. Wis. Nov. 29, 2004).
Although this Court did refrain from ruling prior to theShepard decision, the ruling does not assist Petitioner. InShepard, the Supreme Court held courts may determine the character of an offense by examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding to which the defendant assented. 125 S. Ct. at *26. It is undisputed that Petitioner pled guilty to six prior convictions, any three of which could serve as the basis of his career criminal status. Although Petitioner did submit a written objection at his sentencing in the instant case questioning whether the prior conviction for the state offense of making terroristic threats was a predicate conviction [Docket Nos. 185, 186], Petitioner offers no evidence to show he laid a factual predicate as part of his prior guilty pleas for contesting the character of any of these six offenses. See United States v. Painter, 2005 U.S. App. LEXIS 4796, *11 (8th Cir. March 24, 2005). Shepard does not entitle defendants who pled guilty to prior offenses the right to a jury determination as to whether the prior convictions were for "crimes of violence" if the character of the offenses is apparent from the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding to which the defendant assented. Id.
According to Petitioner's Presentence Report, Petitioner pled guilty to felony first degree damage to property, felony second degree burglary, felony third degree burglary, felony attempted possession of a pistol, felony attempted theft, and felony terroristic threats.
Finally, and perhaps most importantly, the Supreme Court has given no indication that Shepard applies retroactively to cases on collateral review. As Shepard, like Booker and Blakely, was based on Apprendi, the retroactivity analysis set forth above applies with equal force to Shepard.
For the reasons set forth above, Petitioner's § 2255 motion is denied.
IV. CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 [Docket Nos. 269, 307 (criminal), 1 (civil)] is DENIED.