Opinion
Case No. 04-CV-2944 (FB).
March 28, 2005
ANGEL RODRIGUEZ, Pro Se, Federal Prison Camp Allenwood, Montgomery, PA, For the Petitioner.
ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, RICHARD T. FAUGHNAN, ESQ., Assistant United States Attorney, Brooklyn, NY, For the Respondent.
MEMORANDUM AND ORDER
Petitioner, Angel Rodriguez ("Rodriguez"), moves, pursuant to 28 U.S.C. § 2255, to correct his sentence on the grounds that it was enhanced in violation of his Sixth Amendment right to trial by jury as defined in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). Rodriguez, who is proceeding pro se and in forma pauperis, see Order of Jul. 22, 2004, further requests that he be provided with copies of his allocution and sentencing transcripts, and that he be granted leave to amend his § 2255 motion to raise any issues revealed in those transcripts. For the reasons set forth below, the Court denies the § 2255 motion in its current form, but grants Rodriguez leave to file an amended motion.
I.
Rodriguez was a member of the New York City Council. On August 29, 2002, Rodriguez pleaded guilty to one count of conspiracy to commit extortion under color of official right. More specifically, Rodriguez admitted that he and a co-defendant, Jonathan Morales, "agreed to approach real estate developer Gregg O'Connell and ask that he convey to us three properties we believed to be valued at $2.5 million for $1 million" and "also agreed to ask O'Connell to pay us $50,000 in cash." Tr. of Aug. 29, 2002, at 39. In return, Rodriguez would "give [his] official support in the New York City Council for O'Connell's real estate development project in Red Hook, Brooklyn, that was coming up for a vote in the City Council." Id. at 40.Based on the guilty plea, this Court sentenced Rodriguez to 52 months of imprisonment and three years of supervised release. Pursuant to the Federal Sentencing Guidelines, the sentence included an enhancement to account for the fact that the planned extortion would have resulted in a net benefit to Rodriguez of over $1.5 million. The Court also ordered restitution, and imposed a fine and a special assessment.
The Court's judgment of conviction and sentence was entered on the docket on June 30, 2003. Rodriguez did not appeal.
II.
On July 9, 2004, Rodriguez filed the subject § 2255 motion. He initially used a form listing various grounds for habeas relief and referred, without further elaboration, to the grounds "Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with the understanding of the nature of the charge and the consequences of the plea." Pet'r's Mot. to Vacate, etc., at 4-5. Rodriguez's subsequent filings make clear, however, that his motion raises a claim under Blakely: "Based on the § 2255 form [motion], the closest choice for the Blakely claim, was choice (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with the understanding of the nature of the charge and the consequences of the plea." Pet'r's Reply Mem. of Law at 6 (emphasis omitted); see also Ex. to Pet'r's Mot. to Amend Compl. (proposed Amended Complaint). In other words, Rodriguez argues that his guilty plea was not voluntary because he was not informed that he was waiving his right to file a § 2255 motion raising a Blakely claim.
In Blakely, the Supreme Court held that the Sixth Amendment prohibits sentences greater than "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 124 S. Ct. at 2537 (emphasis omitted). In United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), the Court held that, if the Federal Sentencing Guidelines remained mandatory, they would run afoul of this prohibition; the Court therefore excised the provision of the Federal Sentencing Act that made the Guidelines mandatory. See 125 S. Ct. at 764 (invalidating 18 U.S.C. § 3553(b)(1)).
The Court also excised 18 U.S.C. § 3742(e), which set forth the standards of review for sentencing appeals, because it "contain[ed] critical cross-references to the (now-excised) § 3553(b)(1)." Booker, 125 S. Ct. at 765.
In Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004), the Second Circuit held that a Blakely claim will not support a second or successive § 2255 motion because the Supreme Court has not held that Blakely applies retroactively to cases on collateral review; in Green v. United States, 397 F.3d 101, 103 (2d Cir. Feb. 2, 2005), the circuit court reached the same conclusion with respect to Booker.
In Hamdani v. United States, 2005 WL 419727 (E.D.N.Y. Feb. 22, 2005), Judge Trager, expanding upon Green and Carmona, held that Blakely and Booker do not apply retroactively to any collateral challenges to judgments that were final at the time those cases were decided. In Woodard v. United States, 2005 WL 524725 (E.D.N.Y. Mar. 7, 2005), the Court adopted Judge Trager's comprehensive and well-reasoned opinion.
The Court's June 30, 2003, judgment became final when the time to appeal the judgment expired ten days later on July 10, 2003. See Fed.R.App.P. 4(b)(1)(A); Moshier v. United States, ___ F.3d ___, 2005 WL 623142, at *2 (2d Cir. Mar. 17, 2005). Rodriguez cannot, therefore, rely on Blakely and Booker to collaterally challenge his sentence.
This ruling makes it unnecessary to decide whether Rodriguez waived his right to bring a § 2255 motion raising a Blakely claim, whether the claim — which was raised in a later pleading — related back to the filing of his original § 2255 motion, and whether the claim is meritorious. The Court notes, however, that Rodriguez admitted the fact upon which the enhancement to his sentence was based (namely, that the net benefit of the planned extortion was over $1.5 million). Blakely and Booker allow sentencing enhancements based on admitted facts. See Blakely, 124 S. Ct. at 2537; Booker, 125 S. Ct. at 756.
III.
In addition to an order correcting his sentence, Rodriguez seeks an order "granting the production of the allocution transcripts and the sentencing transcripts and allow[ing] the Petitioner the opportunity to amend his petition if he finds any further relevant information in the transcripts." Ex. to Pet'r's Mot. to Amend Compl. (proposed Amended Complaint). Amendment of a § 2255 motion is governed by Federal Rule of Civil Procedure 15. See Ching v. United States, 298 F.3d 174, 177 (2d. Cir 2002) (citing Littlejohn v. Artuz, 271 F.3d 360 (2d Cir. 2001), and Fama v. Comm'r of Corr. Servs., 235 F.3d 804 (2d Cir. 2000)). Rule 15 directs that "leave [to amend] shall be freely given when justice so requires."In light of his pro se status, Rodriguez should be given an opportunity to review his allocution and sentencing transcripts and to amend his § 2255 motion based on that review. Rodriguez may not, of course, amend his motion to restate a Blakely/Booker claim. Moreover, any new claims raised in the amended motion may be subject to dismissal as time-barred unless they relate back to the filing of the initial motion. See 28 U.S.C. § 2255 (imposing a one-year limitation period on § 2255 motions); Fed.R.Civ.P. 15(c) (describing conditions for relation back); Fama, 235 F.3d at 815-16 (holding that relation-back doctrine applies to habeas petitions).
IV.
For the foregoing reasons, Rodriguez's § 2255 motion is denied insofar as it relies on Blakely and Booker. The Clerk is directed to serve upon Rodriquez, at no cost, copies of the transcripts of the August 29, 2002, allocution and the June 17, 2003, sentencing, and to note service of the transcripts on the docket. Rodriguez may, within thirty (30) days of the date of service of the transcripts, file an amended § 2255 motion.
SO ORDERED.