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denying consideration of a claim similar to that asserted herein as "procedurally barred" because not presented in a direct appeal
Summary of this case from United States v. PerkinsOpinion
Criminal Action No. 02-022 (CA #03-1182), Section "L".
May 2, 2005
ORDER REASONS
Before the Court is Kenneth DeClassis's motion to vacate, set aside, or correct sentence pursuant to Title 28, United States Code, Section 2255. For reasons set forth below, the Petitioner's motion is DENIED.
I. FACTS
Petitioner Kenneth DeClassis was indicted on January 24, 2002, on one count of conspiracy to possess with intent to distribute methamphetamine in violation 21 U.S.C. § 846 (2000), three counts of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) (2000), one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) (2000), and one count of using and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (2000). On May 15, 2002, DeClassis pled guilty to the four substantive drug possession and distribution counts after entering into a plea agreement with the Government. Under the terms of the plea agreement, the petitioner agreed to plead guilty to the four substantive drug possession and distribution counts subject to the government's agreement not to bring other charges or file a bill of information establishing prior convictions under 21 U.S.C. § 851 (2000). The petitioner signed that plea agreement indicating that he understood the maximum and mandatory minimum penalties for the crimes he committed. The agreement also stated that the Court could impose the maximum term of imprisonment allowed by law. At rearraignment on May 15, 2002, before accepting the petitioner's plea, the Court informed the petitioner of the mandatory minimum and maximum penalties he faced for the four drug possession and distribution charges. (Rear. Trans. at 9, ln. 10-25; at 10, ln. 1-25). The Court also advised the petitioner that only the Court had the power to determine his sentence. (Id. at 12, ln. 23-25; at 13, ln. 1-4).
The transcript erroneously dates the rearraignment as May 15, 2003 rather than the correct date of May 15, 2002.
The initial Presentence Investigation Report ("PSI") attributed the entire amount of cocaine attributable to the conspiracy, 86 grams of pure methamphetamine, to DeClassis. At his initial sentencing held on November 27, 2002, Declassis objected to this amount and contended that he was accountable for only 25.6 grams of pure methamphetamine (Nov. 27, 2002 Sent. Trans. at 4, ln. 12-25). The Court granted the objection, which reduced DeClassis's total offense level to 27, resulting in a guideline range of 87 to 108 months of imprisonment. (Id. at 8, ln. 7-25; at 9, ln 1-18). At the November 27, 2002 sentencing, the Government filed a motion for downward departure under § 5K1.1 of the United States Sentencing Commission Guidelines, recommending a 10 percent reduction from the bottom of the guidelines range. The Court sentenced the petitioner to 79 months of incarceration and 4 years of supervised release, a sentence which reflected the 10 percent downward departure.
The petitioner filed an untimely notice of appeal, and the Fifth Circuit dismissed it on May 6, 2003. The petitioner then moved the Court to correct, vacate, or set aside his sentence and conviction, to enforce a plea agreement, and to grant an evidentiary hearing pursuant to 28 U.S.C. § 2255 (2000). In that § 2255 motion, DeClassis contended that Assistant U.S. Attorney Melissa Buckhalter promised him a 25 percent or 50 percent sentence reduction in exchange for his guilty plea and cooperation. DeClassis also argued that his base offense level should not have been increased two points for possession of a firearm because he did not plead guilty to the firearms count and that Probation could not consider his criminal history in calculating his score because the Government had agreed not to file a § 851 bill of information. The Court granted DeClassis's request for an evidentiary hearing and then set a conference to discuss evidentiary hearing procedures. At the September 4, 2003, status conference, the Government indicated that it would not challenge DeClassis's assertion that an Assistant United States Attorney had promised him a sentencing departure recommendation of 50 percent. DeClassis's counsel informed the Court that in light of the Government's position, there would be no issue of fact to be decided at an evidentiary hearing. After discussing the matter with his counsel, DeClassis waived his right to an evidentiary hearing.
On September 24, 2003, the Court instructed the parties to submit supplemental briefs on how the Court should proceed in light of the holdings of Santobello v. New York, 404 U.S. 257 (1971) (holding that a prosecutor must fulfill his promise to a defendant whose guilty plea significantly rests on and was induced by the promise) and United States v. Saling, 205 F.3d 764 (5th Cir. 2000) (holding that, in determining whether the government breached a plea agreement, the court must consider whether the government's conduct is consistent with the defendant's reasonable understanding of the agreement). Neither in his § 2255 motion nor in the supplemental briefing did Petitioner DeClassis ever question his factual guilt. Furthermore, DeClassis did not wish to vacate his guilty plea nor did he wish to be resentenced by another judge. See Saling, 205 F.3d at 768. Instead, DeClassis requested that this Court vacate his sentence, keep the case, compel the Government to make the sentence reduction recommendation, and resentence him based on the Government's concession that plea discussions included a recommendation by the Government of a 50 percent sentence reduction departure.
In their supplemental briefs, both the Government and DeClassis urge the Court to dismiss DeClassis's Section 2255 petition without prejudice, vacate the original judgment, and resentence DeClassis. The parties submitted that this disposition would cure DeClassis's ineffective assistance of counsel challenge relating to the untimely filing of a notice of appeal. See United States v. West, 240 F.3d 456, 460 (5th Cir. 2001). The parties also contended that this remedy would provide the Government with an opportunity to cure its failure to make the promised sentence reduction recommendation. Accordingly, the Court vacated the Judgment and Commitment Order dated November 27, 2002 and resentenced Mr. DeClassis.
A resentencing was held on December 10, 2003. DeClassis once again objected to the two-step increase in his base offense level for possession of a dangerous weapon. The Court sustained the objection, and the recalculated guidelines yielded an imprisonment range of 70 to 87 months based on a total offense level of 25 and a criminal history category of III. DeClassis was sentenced to 62 months imprisonment on all counts, to be served concurrently, in addition to supervised release. The Court recognized that this was a departure from the sentencing guidelines based in part on the Government's 5K1.1 motion for downward departure based on DeClassis's substantial assistance.
On November 1, 2004, the Petitioner filed the instant motion for relief pursuant to 28 U.S.C. § 2255. In his motion, the petitioner claims that he is entitled to relief under § 2255 based on four main grounds: (1) the Court was prohibited from considering DeClassis's prior convictions to determine his criminal history because the Government elected not to file a 21 U.S.C. § 851(a)(1) bill of information; (2) the Fifth and Sixth Amendments prohibited the Court from imposing sentence based upon a factual finding that the amount of pure methamphetamine attributable to DeClassis was 25.6 grams, because DeClassis only admitted to possession of 190.5 grams of meth and he never had a chance to have the purity of the drugs tested by another laboratory; (3) the decisions in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004), and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 2005 WL 50108 (2005), retroactively apply to this case and require that DeClassis be resentenced because his sentence was based upon facts not submitted to and found beyond a reasonable doubt by a jury; and (4) Declassis' sentence exceeded the maximum sentence allowed by the Sixth Amendment because the Court, as an arm of the Government, breached the plea agreement in which the Assistant U.S. Attorney agreed to a 25 percent reduction in exchange for DeClassis's guilty plea and a 50 percent reduction for acceptance of responsibility. The Government opposes the motion and claims that petitioner's grounds for seeking § 2255 relief are without merit.
II. ANALYSIS
Habeas relief is appropriate under § 2255 where a federal prisoner asserts that his sentence "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. However, a petitioner is barred from raising an issue for the first time on collateral appeal if he had an opportunity to raise the issue on direct appeal and failed to do so, unless the petitioner can show "both `cause' for failing to raise the issue on direct appeal and `actual prejudice' flowing from the errors alleged." U.S. v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996); see also U.S. v. Frady, 456 U.S. 152, 167-168 (1982). "Objective factors that constitute cause include interference by officials that makes compliance with the procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available to counsel at the prior occasion, and ineffective assistance of counsel in the constitutional sense." Guerra, 94 F.3d at 993. No other types of errors may be asserted collaterally unless the petitioner demonstrates that "the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice." U.S. v. Patten, 40 F.3d 774, 776 (5th Cir. 1994), quoting U.S. v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992). Furthermore, the cause and actual prejudice standard presents "`a significantly higher hurdle' than the `plain error' standard that is applied on direct appeal." Pierce, 959 F.2d at 1301 (5th Cir. 1992), citing Frady, 456 U.S. at 165-66. The instant petitioner asserts four grounds for relief under § 2255, none of which were asserted on direct appeal. Therefore, the petitioner must satisfy the cause and actual prejudice standard for each ground he wishes to raise. A. Petitioner's non- Booker claims
The petitioner is procedurally barred from raising all of the issues that he presents in his § 2255 motion, with the exception of those issues raised under Booker. The petitioner's non- Booker claims for § 2255 relief include the following: (1) that the Court improperly considered his prior convictions to determine his criminal history even though the Government elected not to file a 21 U.S.C. § 851(a)(1) bill of information; (2) that the Court improperly imposed sentence based upon a factual finding that the amount of pure methamphetamine attributable to DeClassis was 25.6 grams; and (4) that his sentence exceeded the maximum sentence allowed by the Sixth Amendment because the Court failed to honor the plea agreement between the petitioner and the Government. These are all issues which the petitioner could have raised on direct appeal, however, the petitioner failed to do so. In fact, the Court's decision to resentence the petitioner was based in part on a desire by the Court and the parties to allow the petitioner an opportunity to file a timely notice of appeal. However, despite this second opportunity, the petitioner did not appeal his sentence. In his § 2255 motion, the petitioner does not address why he was unable to raise these non- Booker issues on direct appeal nor why he failed to appeal his sentence at all. Furthermore, the petitioner does not even claim ineffective assistance of counsel in failing to file a notice of appeal as he did in his original habeas motion. Without reason for failing to raise these issue on direct appeal, all of the petitioner's non- Booker claims are procedurally barred.
A. Petitioner's Booker claims
The petitioner also claims that he is entitled to § 2255 relief because his sentence was enhanced based upon a factual finding made by a judge rather than by a jury. Specifically, the petitioner takes issue with the Court's determination at sentencing that the petitioner possessed 25.6 grams of pure methamphetamine and that he had possession of a firearm. According to the petitioner, the Court's enhancement of his sentence based on these facts was violative of the United States Supreme Court's recent decisions in Blakely and Booker. Both Blakely and Booker were decided after the petitioner was sentenced and his conviction became final, therefore, the legal basis for the petitioner's claim was not available for the petitioner to raise on direct appeal. Accordingly, the petitioner has carried his burden of showing "cause" for not raising this Booker issue on direct appeal. See Guerra, 94 F.3d at 993. However, the petitioner must still demonstrate that there is "`actual prejudice' flowing from the errors alleged." Id.
In Blakely, the Supreme Court held that Blakely's sentence, which was imposed pursuant to the sentencing procedures of the State of Washington, violated the United States Constitution as interpreted in Aprendi v. New Jersey, 530 U.S. 466 (2000), because that sentence was enhanced based upon the Court's factual findings rather than upon facts found by a jury beyond a reasonable doubt. In Booker, the Supreme Court applied the Blakely decision to the Federal Sentencing Guidelines and rendered the Guidelines advisory, rather than mandatory. The Petitioner claims that Blakely retroactively applies to his case, and, therefore, it was unconstitutional for the Court to enhance his sentence upon it's own finding that the petitioner possessed 25.6 grams of pure methamphetamine and a firearm. Generally, "unless they fall within an exception . . . new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague v. Lane, 489 U.S. 288, 310 (1989). One way that a constitutional rule can fall within an exception to the Teague rule is if the new rule is substantive. Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519 (2004). Substantive rules include those rules that "narrow the scope of a criminal statute by interpreting its terms . . . as well as constitutional determinations that place particular conduct of persons covered by the statute beyond the State's power to punish." Id. at 2522. These new substantive rules apply retroactively "because they `necessarily carry a significant risk that a defendant stands convicted of an act the law does not make criminal" or faces a punishment that the law cannot impose upon him." Id., citing, Bousley v. U.S., 523 U.S. 614 (1998). Neither of these risks are present in the instant case. The Booker decision neither narrowed the criminal statute under which the petitioner was convicted nor placed the behavior to which the petitioner pled guilty beyond the Government's power to punish. In Booker, the Supreme Court explicitly stated that it's holding applied "to all cases on direct review." 125 S.Ct. at 769. It is significant that the Court did not explicitly extend it's Booker holding to cases on collateral review. Furthermore, while the Fifth Circuit has not ruled on this issue, the Seventh and Eleventh Circuits have held that Booker announced a procedural rule that does not apply retroactively to criminal cases that became final after the rule's release. See, McReynolds v. United States, ___ F.3d ___, 2005 WL 237642 at *2 (7th Cir. 2005); see also Varela v. United States, ___ F.3d. ___, 2005 WL 367095 at *4 (11th Cir. 2005). Due to the fact that Booker does not apply retroactively, the petitioner cannot demonstrate any "`actual prejudice' flowing from the errors alleged" in his motion for habeas relief. Guerra, 94 F.3d at 993. Consequently, the Booker issues, as well as the non- Booker issues raised by the petitioner are barred.
Even if the Fifth Circuit were to hold that Booker applies retroactively, the petitioner's claims of Booker errors fail on the merits. In United States v. Mares, 402 F.3d 511, 2005 WL 503715 (5th Cir. 2005), the Fifth Circuit explained how it understands the Supreme Court expects sentencing to proceed under the current state of the law. As the Fifth Circuit describes, " Booker contemplates that, with the mandatory use of the [Sentencing] Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing." Id. at *7. The Fifth Circuit sets for a "plain error" analysis for courts to apply to claims of Booker error that were not raised below. Id. For the plain error standard to be satisfied, there must be "(1) error, (2) that is plain, and (3) that affects substantial rights." Id. at *8, citing, United States v. Cotton, 535 U.S. 625, 631 (2002). In the instant case, DeClassis's claim fails the satisfy the first prong of the plain error test. In Mares, the Fifth Circuit found that the first prong of the plain error test was satisfied because the defendant had shown that, "[u]nder the mandatory Guideline system in place at the time of sentencing, [the defendant's] sentence was enhanced based on findings made by the judge that went beyond the facts admitted by the defendant or found by the jury." Mares, 2005 WL at *8. While the Sentencing Guidelines were considered mandatory at the time of DeClassis's sentencing, the Court did not enhance his sentence based on factual findings that went beyond those admitted to by DeClassis. With regard to the 25.6 grams of pure methamphetamine, the Court sustained the petitioner's objection to a larger quantity of drugs, and calculated the guideline range based only on the amount of drugs to which DeClassis would admit. (Dec. 10, 2003 Sent. Trans. at 6, ln. 3-9; at 9, In. 10-14). The Court also sustained DeClassis's objection to the two-level enhancement for possession of a firearm, finding insufficient evidence to warrant a sentence enhancement for possession of a firearm. (Dec. 10, 2003 Sent. Trans. at 12, ln. 3-6). Therefore, the petitioner's sentence was not enhanced based on any facts found by the Court that were not admitted by DeClassis. Accordingly, there has been no Booker error.
III. CONCLUSION
For the reasons set forth above, IT IS ORDERED that the petitioner's motion to vacate, set aside, or correct sentence pursuant to Title 28, United States Code, Section 2255 is DENIED.