Summary
listing decisions that rejected 60(b) motions on timeliness grounds for delays ranging from ten to twenty months
Summary of this case from Toliver v. ArtusOpinion
97 Civ. 2833 (RPP), 90 Cr. 863 (RPP)
September 6, 2002
OPINION and ORDER
By motion dated January 29, 2002, Petitioner Leroy A. Moses, also known as Jawad Amir Musa, moves, pursuant to Fed.R.Civ.P. 60(b), to vacate the Court's opinion and order dated May 20, 1998 denying his habeas petition under 28 U.S.C. § 2255. Petitioner alleges that, in light of the U.S. Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the Second Circuit Court of Appeals' decisions in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), and United States v. Guevara, 277 F.3d 111 (2d Cir. 2001), "it is no longer equitable that the judgment [in this case] have prospective application." Fed.R.Civ.P. 60(b)(5). The Government opposes Petitioner's motion, arguing that (1) Petitioner's Rule 60(b) motion is an attempt to circumvent the Second Circuit's denial of his motion to file a successive § 2255 petition based on Apprendi (2) Petitioner's motion is untimely because it was not made within a "reasonable time'; and (3) Petitioner's motion fails on its merits because it is not inequitable that the judgement have prospective application. For the following reasons, Petitioner's motion is denied.
Background
On July 2, 1991, Petitioner was charged in a one count indictment of conspiracy to possess, with intent to distribute, one kilogram or more of heroin, in violation of 21 U.S.C. § 846. On July 18, 1991, following a jury trial, Petitioner was convicted of the narcotics conspiracy charged in the indictment. The jury made no findings with respect to the quantity of heroin involved in the conspiracy.
On December 11, 1992, the Court held a sentencing hearing pursuant toUnited States v. Fatico, 579 F.2d 707 (2d Cir. 1978), for the purpose of determining, by a preponderance of the evidence, the quantity of heroin for which Petitioner was liable. The Court found, on April 16, 1993, Petitioner liable for one kilogram of heroin. (Opinion and Order dated April 16, 1993 at 1, 6.) Since Petitioner had two prior felony narcotics convictions, he was sentenced to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841 (b)(1)(A). Petitioner's conviction and sentence were affirmed on appeal to the Second Circuit Court of Appeals. United States v. Moses, 23 F.3d 396 (2d Cir. 1994).
On April 10, 1997, Petitioner filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that (1) certain amendments to the Federal Sentencing Guidelines required a reduction in his sentence; (2) his trial and appellate counsel rendered ineffective assistance; and (3) relevant impeachment evidence had been improperly withheld. Moses, 1998 WL 255401 at *39 On May 20, 1998, the Court denied Petitioner's § 2255 petition in its entirety and declined to issue a certificate of appealability because Petitioner had not made a substantial showing of the denial of a constitutional right. Id. Petitioner appealed the Court's decision not to issue a certificate of appealability. (See Docket No. 98-2688). The Second Circuit Court of Appeals affirmed this Court's decision. (Id., Order dated November 17, 1999.)
On June 26, 2000, the Supreme Court handed down its decision inApprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
On July 17, 2000, Petitioner filed an application with the Second Circuit Court of Appeals for leave to file a successive habeas petition pursuant to 28 U.S.C. § 2255, arguing that the Supreme Court's decision in Apprendi rendered his sentence of life imprisonment, which was based on the Court's finding that the narcotics conspiracy involved one kilogram of heroin, unconstitutional.
On August 16, 2001, the Second Circuit Court of Appeals handed down its decision in United States v. Forbes, 262 F.3d 143 (2d Cir. 2001). In Forbes, the Second Circuit held that Apprendi is not a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, and thus could not be the basis for a motion to file a second or successive habeas petition. Id. at 145.
On February 25, 2002, Petitioner filed the instant Rule 60(b) motion.
On March 7, 2002, the Second Circuit Court of Appeals denied Petitioner's application to file a successive habeas petition "[b]ecause the Supreme Court has not held that Apprendi establishes a "new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court . . . ." (Order of the Second Circuit Court of Appeals dated March 7, 2002 (quoting Tyler v. Cain, 121 S.Ct. 2478 (2001).)
Discussion
Petitioner moves, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, to vacate the Court's denial of his petition for habeas corpus entered on May 20, 1998. Rule 60(b) states, in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time. . . .
Fed.R.Civ.P. 60(b). Petitioner argues that, following the Supreme Court's decision in Apprendi and the Second Circuit's decisions in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), and United States v. Guevara, 277 F.3d 111 (2d Cir. 2001), "it is no longer equitable that the judgment[the denial of Petitioner's habeas petition on May 20, 1998] should have prospective application." Id.
Thomas and Guevara were cases on direct appeal, not collateral review. In Thomas, the Second Circuit, sitting en banc, vacated the defendant's sentence — which, based upon the District Court's findings as to drug quantity, was 52 months greater than the statutory maximum penalty for the offense charged in the indictment — though the defendant had made no objection based on Apprendi. The Second Circuit held that where drug quantity is used to impose a sentence above the otherwise applicable statutory maximum, the failure either to charge drug quantity in the indictment or to submit the question of drug quantity to the jury is plain error which affects the substantial rights of the defendant and that where the defendant contested the issue of drug quantity, the error seriously affected the fairness and public reputation of the judicial proceedings such that the Court of Appeals would exercise its discretion to notice the plain error. 274 F.3d at 663-73.
In Guevara, the Second Circuit extended its holding in Thomas to a situation where, based on the district court's findings as to drug quantity and the defendant's prior conviction, the sentence imposed was the statutory minimum of twenty years instead of the lesser applicable range under the Sentencing Guidelines. 277 F.3d at 122-25.
Rule 60(b) motions must "be made within a reasonable time." Fed.R.Civ.P. 60(b). In considering whether Petitioner's Rule 60(b) motion was "made within a reasonable time, " the Court "must scrutinize the particular circumstances of the case, and balance the interest in finality with the reasons for delay." PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir.) (citations omitted), cert. denied, 464 U.S. 936 (1983). Petitioner's motion was filed approximately three years and nine months after the Court's denial of Petitioner's habeas petition on May 20, 1998 and approximately twenty months after the Supreme Court handed down its decision in Apprendi on June 26, 2000. Such a delay, without excuse, will ordinarily result in the denial of a Rule 60(b) motion. See Ford v. United States, 2002 WL 83743 at *2 (N.D. Tex. Jan. 14, 2002) (motion pursuant to Rule 60(b)(6) time-barred where defendant waited more than sixteen months after Apprendi decision before filing motion); Crosslin v. United States, 2001 WL 863616 at *2 (N.D. Tex. July 13, 2001) (motion pursuant to Rule 60(b)(6) time-barred where defendant waited more than ten months after Apprendi decision); Harrison v. United States, 2001 WL 493133 at *2 (N.D. Tex. May 7, 2001) (motion denied pursuant to Rule 60(b)(6) where defendant waited ten months after Apprendi decision); see also Warren v. Garvin, 1999 WL 494117 at *6..7 (S.D.N.Y July 13, 1999) (delay of twenty months is not reasonable under Rule 60(b)). Petitioner has offered no reason for the delay in filing the petition. Accordingly, the Court finds that Petitioner's motion was not made within a "reasonable time" and may not be considered.
The Court rejects Petitioner's argument that the timeliness of his motion should be measured from the date of the Thomas and Guevara decisions in December 2001. Both Thomas and Guevara were decisions on direct appeal, not collateral review. In addition, in both Thomas and Guevara, the Second Circuit made clear that the decisions were prompted by the Supreme Court's opinion in Apprendi. See Thomas, 274 F.3d at 660 ("We conclude, following Apprendi's teachings, that if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate amount of drugs, then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury."); Guevara, 277 F.3d at 118 ("We conclude that, by virtue of Apprendi, a statutory mandatory minimum sentence specified in either § 841(b)(1)(A) or § 841(b)(1)(B) cannot mandate a prison sentence that exceeds the highest sentence to which the defendant would otherwise have been exposed . . . if the applicability of subsections (A) or (B) depends on a finding of drug quantity not made by the jury.") Accordingly, the Court measures the timeliness of Petitioner's motion from the date of Apprendi, not the dates of the Second Circuit's decisions in Thomas and Guevara.
In addition, Petitioner's Rule 60(b) motion essentially seeks relief on the theory that Petitioner's sentence is inequitable because Apprendi should apply retroactively. In light of the Second Circuit's decision in Forbes and denial of Petitioner's application to file a second habeas petition based on Apprendi, the Court is constrained from considering Petitioner's motion. The Court is aware that the Second Circuit is currently considering, in United States v. Luciano (Parise), "whether Apprendi applies retroactively to a collateral attack upon a conviction." Beatty v. United States, 293 F.3d 627, n. 3 (May 24, 2002). Should the Second Circuit determine that Apprendi does apply retroactively to a collateral attack upon a conviction, Petitioner may be able to obtain his desired relief.
IT IS SO ORDERED.