Opinion
No. 3:93-CR-262-P, No. 3:97-CV-913-P.
December 22, 2000.
MEMORANDUM OPINION AND ORDER
Thomas Charles Brown, Sr., Petitioner, seeks to vacate, set aside or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. On September 21, 2000, the court denied relief based upon Petitioner's claims that trial and appellate counsel provided constitutionally ineffective assistance and Petitioner was deprived of his constitutional right to testify in his own defense. Shortly before the court issued its decision, Petitioner filed a motion to amend his § 2255 motion to add a ground for relief based upon the United States Supreme Court's decision in Apprendi v. New Jersey ___ U.S. ___, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The court now determines that (1) leave to amend is denied, (2) Apprendi is inapplicable on collateral review, and (3) all relief requested in Petitioner's § 2255 motion is denied.
The Court notes that this is Petitioner's first § 2255 motion. Proposed amendments to an initial motion to vacate pursuant to § 2255 do not constitute a second or successive motion subject to the AEDPA's prior appellate review requirements. See Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999). The government concedes that the cases which hold that Apprendi may not be raised in a second or successive § 2255 motion are not applicable here. See e.g., In re Tatum, ___ F.3d ___, 2000 WL 1707765 (5th Cir. 2000) (No. 00-31162).
Background
The government charged Petitioner with conspiring to distribute and to possess with intent to distribute 1,000 kilograms or more of marijuana. The case was tried to a jury on August 8, 1994. The court did not instruct the jury that to convict Petitioner, it must find beyond a reasonable doubt the specific drug quantity alleged in the indictment. Petitioner objected at trial that the jury was not allowed to find the amount of actual marijuana alleged in the indictment. Petitioner argued on appeal that the 1,000 kilograms was an element of the conspiracy offense and that the court erred by instructing the jury that the evidence need only establish a measurable amount of marijuana. The jury convicted Petitioner, and he appealed. The Fifth Circuit Court of Appeals held that the Court's instruction was proper under United States v. Valencia, 957 F.2d 1189, 1197 (5th Cir.), cert. denied, 506 U.S. 889, 113 S.Ct. 254 (1992) (overruled by United States v. Keith, 230 F.3d 784, 786 (5th Cir. 2000) (per curiam) (on rehearing). In Valencia, the court held that drug quantity is not an element of 21 U.S.C. § 841(a)(1) or § 846 and only need be established for sentencing purposes. See United States v. Castillo, 77 F.3d 1480, 1495-96 (5th Cir.), pet. for cert. filed Nov. 20, 2000) (No. 00-7123). The Fifth Circuit Court of Appeals has since overruled its jurisprudence that treated drug quantity as a sentencing factor rather than as an element of the offense under § 841, in light of Apprendi. See United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000). See also United States v. Keith, 230 F.3d 784, 786 (5th Cir. 2000) (per curiam) (on rehearing).
Leave to Amend
The Rules Governing Section 2255 Proceedings for the United States District Courts govern procedures under § 2255. Rule 12 provides as follows:
If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.
FED. R. CIV. P. 15(a) permits amendment of a pleading after a responsive pleading has been served, provided leave of court is granted. Leave to amend should be freely given when justice so requires. See FED. R. Civ. P. 15(a). The Court may deny leave to amend based upon undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by prior amendment, undue prejudice to the opposing party, or the futility of the amendment. Union Planters National Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir. 1982). The government objects to Petitioner's being granted leave to amend the § 2255 motion to add an Apprendi claim. The court finds that for the reasons which follow, Apprendi is not applicable on collateral review. Accordingly, Petitioner is denied leave to amend his § 2255 motion to add his Apprendi claim because the amendment would be futile.
The Apprendi Decision
The United States Supreme Court decided Apprendi white this § 2255 motion was pending. The Supreme Court addressed the question of "whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2351. Apprendi had been convicted in state court of possession of a firearm for an unlawful purpose, an offense punishable by imprisonment for between five to ten years. Id. at 2352. At sentencing, the judge found, by a preponderance of the evidence, that Apprendi had committed the crime with a purpose to intimidate individuals because of their race. This finding served to increase Apprendi's sentence under New Jersey's hate crime law to imprisonment for between ten and twenty years. Id. The United States Supreme Court reexamined its prior decisions and confirmed as a rule of Constitutional law the principle it had recently expressed in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999):
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.Id. at 2362-63. The Supreme Court explained that it does not matter whether a particular fact is usually deemed to be a sentencing factor. The relevant inquiry is, "[D]oes the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 2365. If so, the required finding is an element of the offense which must be proven to the jury beyond a reasonable doubt.
In Jones, the United States Supreme Court examined whether the federal carjacking statute, 18 U.S.C. § 2119, set forth "three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict." Jones, 526 U.S. at 229, 119 S.Ct. 1215 (referring to heightened penalties where serious bodily injury or death results from carjacking). "Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." Id. at 232, 119 S.Ct. 1215. Concluding that Congress most likely intended to create separate offenses rather than sentencing factors, see id. at 235, 119 S.Ct. 1215, and given the serious constitutional implications of the alternative interpretation, see id. at 239, the Court construed § 2119 "as establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict," id. at 252, 119 S.Ct. 1215. Before Apprendi, the Fifth Circuit Court of Appeals had declined to extend Jones to § 841(b). See United States v. Rios-Quintero, 204 F.3d 214, 218-19 (5th Cir.), cert. denied, 121 S.Ct. 301 (2000) ( called into doubt by United States v. Meshack, 225 F.3d 556 (5th Cir. 2000) and United States v. Keith, 230 F.3d 784 (5th Cir. 2000).
A jury convicted Petitioner of conspiring to distribute and to possess with intent to distribute a measurable amount of marijuana in violation of 21 U.S.C. § 846. At sentencing, the court found by a preponderance of the evidence that Petitioner was responsible for over 3,500 pounds of marijuana and sentenced petitioner to 216 months in federal custody, followed by a 5-year term of supervised release. If Apprendi were applicable on collateral review, Petitioner's maximum sentence would be capped at 5 years under 21 U.S.C. § 841(b)(1)(D).
Retroactivity of New Rules of Law
Courts may not apply new judicial decisions such as Apprendi retroactively without substantial justification because our legal system has a strong interest in the finality of adjudication. See Teague v. Lane, 489 U.S. 288, 308-09, 109 S.Ct. 1060, 1074, 103 L.Ed.2d 334 (1989). The government contends that the Apprendi principle is a "new constitutional rule of criminal procedure," which is barred by Teague. See Teague, 489 U.S. at 292. The United States Supreme Court held in Teague that a new constitutional rule of criminal procedure established after a petitioner's conviction has become final may not be applied on habeas corpus review unless it meets one of two narrow exceptions. Teague, 489 U.S. at 311-13.
Teague Analysis
To determine whether a prisoner is entitled to raise a new rule of criminal procedure on collateral review, a federal court should apply Teague by proceeding in three steps. Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). The first and second steps involve a determination of whether the rule in question is a new rule which was not compelled by existing precedent at the time a petitioner's conviction and sentence became final. Id. It is undisputed that precedent existing when Petitioner's conviction became final did not dictate a ruling in his favor. Accordingly, the court will proceed directly to the third step. The third and final step requires the court to determine whether the new rule (1) puts certain kinds of primary, private conduct beyond the power of the criminal law-making authority to proscribe or (2) is a rule of procedure that is implicit in the concept of ordered liberty. Fisher v. State of Texas, 169 F.3d 295, 306 (5th Cir. 1999). The parties and the court agree that the first exception is not applicable. The second exception applies only to rules that "not only improve [the] accuracy [of criminal proceedings], but also `alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (quoting Teague, 489 U.S. at 311). The scope of the second exception is limited to "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 312, 109 S.Ct. at 1076.
The rule in Apprendi is similar to the new rule announced in United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 2320. In Gaudin, the United States Supreme Court held that "materiality" for purposes of a conviction pursuant to 18 U.S.C. § 1001 must be decided by the jury, rather than by the court. Gaudin, 515 U.S. at 522-23, 115 S.Ct. at 2320. In United States v. Shunk, the Fifth Circuit Court of Appeals considered whether the rule in Gaudin should be applied retroactively to cases on collateral review. Shunk, 113 F.3d 31, 37 (5th Cir. 1997). Like Petitioner, the Shunks maintained that Teague was inapplicable because Gaudin created a rule of substantive criminal law, not of criminal procedure. Shunk, 113 F.3d at 35. The Shunks also claimed, as Petitioner does here, that under the reasoning of Gaudin, the trial court's failure to instruct the jury on materiality deprived them of their Fifth and Sixth Amendment right to a jury determination of guilt beyond a reasonable doubt on every element of the offense. Shunk, 113 F.3d at 34. The Fifth Circuit Court of Appeals held that Gaudin announced, not a new substantive rule, but rather, a new rule of criminal procedure which is not a "watershed rule" that falls within the second Teague exception. Shunk, 113 F.3d at 36-37. Other circuit courts are in agreement with the Fifth Circuit's decision in Shunk. See United States v. Bilzerian, 127 F.3d 237 (2nd Cir. 1997), cert. denied, 527 U.S. 1021, 119 S.Ct. 2365, 144 L.Ed.2d 770 (1999) (holding a jury determination of materiality, rather than a judicial determination was not a new rule requiring retroactive application); United States v. Mandanici, Jr., 205 F.3d 519 (2nd Cir.), cert. denied, 121 S.Ct. 190 (2000) (holding application of the "beyond a reasonable doubt" standard in lieu of a preponderance standard should not apply retroactively to cases on collateral review); United States v. Swindall, 107 F.3d 831, 836 (11th Cir. 1997) (holding the Gaudin rule is not a watershed rule that alters the court's understanding of the bedrock procedural elements essential to a proceeding's fairness). The court finds the reasoning of these decisions to be sound, and to be directly applicable to whether the rule in Apprendi — that every element of an offense (including every fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum) be submitted to a jury and proven beyond a reasonable doubt — is a watershed rule of criminal procedure that falls within the second Teague exception.
The terms of § 1001 prohibit, inter alia, knowingly and willfully making materially false fictitious or fraudulent statements or representations in any matter within the jurisdiction of the United States Government.
In Mandanici, the court noted that the Supreme Court has repeatedly "underscored the narrowness of the second Teague exception." Mandanici, 205 F.3d at 528. The Mandanici court noted eleven cases in which a new rule announced by the Supreme Court and examined under Teague was found not to be retroactive. Id. Several courts have held that Apprendi should not be given retroactive application in initial collateral review because it neither protects certain conduct from punishment altogether nor qualifies a watershed ruling central to an accurate determination of guilt that alters our understanding of the bedrock procedural elements essential to the fairness of the proceeding. See Jones v. Smith, 2000 WL 1664426, (9th Cir, Nov. 7, 2000) (holding that the non-retroactivity rule of Teague barred retroactive application of Apprendi to petitioner's § 2254 petition); United States v. Pittman, 120 F. Supp.2d 1263, 2000 WL 1708962 (D. Or. Nov. 15, 2000) (holding the determination of retroactive analysis of a new Supreme Court rule cannot depend upon the facts of a particular case and Apprendi is not applicable to a post-conviction claim); United States v. Johnson, 2000 WL 1801401 (D. Neb. Dec. 7, 2000) (holding an Apprendi claim cannot be maintained on collateral review based upon the nonretroactivity principle of Teague); United States v. Joseph, 2000 WL 1789989 (E. D. La. Dec. 5, 2000) (holding Apprendi should not be applied retroactively to cases on collateral review). The court finds that the shifting of an element of the offense from the judge to the jury, and requiring proof of such element beyond a reasonable doubt rather than by a preponderance of the evidence, is a rule of criminal procedure, rather than a rule of substantive criminal law. Moreover, such a rule does not directly relate to the accuracy of the conviction or sentence, nor implicate the fundamental fairness of the proceeding. The rule in Apprendi is not a watershed rule of criminal procedure that falls within the second Teague exception.
The indictment charged Petitioner with conspiring to distribute and to possess with intent to distribute 1,000 kilograms or more of marijuana. The evidence showed that Petitioner conspired to distribute and to possess with intent to distribute at least 1,000 kilograms of marijuana. The court found by a preponderance of the evidence the amount of marijuana involved. The absence of the jury's finding of the amount of marijuana does not undermine the fundamental fairness that underlies Petitioner's conviction or seriously diminish the likelihood that an accurate conviction was obtained. See Shunk, 113 F.3d at 37. Based upon the nonretroactivity principle of Teague, Petitioner's Apprendi claim is not cognizable on collateral review.
Conclusion
Petitioner's motion to vacate his sentence is DENIED. Petitioner's request for leave to amend his motion to add an Apprendi claim is DENIED.