Opinion
CIVIL ACTION NO. 6:01-CV-060-C.
April 27, 2002
ORDER
Petitioner Jose Manuel Porras, acting pro se, filed an "Application for Modification of Sentence and For Correction of Petitioner's Presentence Investigation Report Pursuant to 28 U.S.C. § 2241" and a memorandum in support thereof. Respondent filed an answer and attached copies of the relevant records from Petitioner's criminal proceedings. Petitioner has filed a response and objections.
An attorney originally filed the application on June 25, 2001, but he was subsequently denied permission to proceed pro se vice. Petitioner Porras then filed his own amended motion and memorandum, in support thereof on February 21, 2002.
Petitioner was originally indicted in criminal action no. EP-99-CR-0372 in the United States District Court for the Western District of Texas, El Paso Division, on March 17, 1999, for conspiracy to possess with intent to distribute a quantity of marijuana in violation of 21 U.S.C. § 841 (a)(1) and 846. On November 10, 1999, a Notice of Enhanced Penalty was filed to advise Petitioner that the government intended to seek enhanced penalties for a quantity of 100 kilograms or more of marijuana pursuant to 21 U.S.C. § 841 (b)(1)(B)(vii) and 960(b)(2)(G). Petitioner pleaded guilty to one count of the indictment on November 19, 1999. On January 19, 2000, Petitioner filed a Request for Downward Departure based on susceptibility of prison abuse because of his status as a former police officer in Mexico and known informant who worked with law enforcement. On January 25, 2000, Petitioner was sentenced to sixty-six months' incarceration in the Federal Bureau of Prisons, a four-year term of supervised release, and a special assessment of $100.00. At sentencing, the court found that the guideline range was 78 to 97 months, but departed downward because of the information provided by Petitioner to law enforcement and his cooperation in a murder investigation. Petitioner filed neither a direct appeal nor a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He is currently incarcerated in the Flightline Unit at FCI Big Spring, Texas.
In the instant petition, Petitioner complains that he was sentenced in violation of the Due Process Clause because his sentence was enhanced for prior convictions and for his leadership role in the conspiracy under § 3B1.1 of the United States Sentencing Guidelines and these allegations were neither presented to a jury nor proved beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other 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"). Petitioner argues that he should be allowed to raise such claims under § 2241 because although he waived his right to file an appeal or a motion under § 2255, he "did nor waive the right to challenge constitutional issues"; he could not have timely raised these issues under § 2255; and case law supports his entitlement to raise Apprendi claims under § 2241.
The Court has considered Petitioners pleadings, Respondent's answer, and the records attached to the answer and finds that Petitioner's Petition for Writ of Habeas Corpus should be dismissed with prejudice for the reasons stated in Respondents' thorough and well-drafted response.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied.