Opinion
No. 00-3422-SAC, No. 95-40083-03-SAC.
April 30, 2002
MEMORANDUM AND ORDER
This case is before the court on defendant's motion to vacate or correct sentence pursuant to 28 U.S.C. § 2255. After pleading guilty to federal drug offenses, defendant was sentenced to 188 months' imprisonment. Defendant unsuccessfully appealed his conviction to the Tenth Circuit, see United States v. Smith, 188 F.3d 520, 1999WL 547955 (10th Cir. July 28, 1999) (Table), cert. denied, 528 U.S. 1034 (1999), and now brings this collateral action. Defendant raises three claims: 1) he received ineffective assistance of counsel in his counsel's failure to require that the amount of drugs attributable to him at sentencing be included as an "essential element" of the offenses; 2) he was denied due process in violation of the Fifth and Fourteenth Amendments because the indictment and subsequent proceedings failed to give him notice of all the essential elements, i.e., the amount of drugs for which he could be penalized; 3) he was denied appeal rights because his counsel failed to raise these issues on appeal.
Each of these claims of error is premised upon the fact that defendant's sentencing was based upon a greater amount of drugs than was alleged in the indictment for the offenses to which defendant pled guilty. Defendant pled guilty to counts 2, 4, and 71 of the third superceding indictment, which charged defendant with possession with intent to distribute, respectively, 0.3 grams, 0.7 grams, and 8.2 grams of cocaine base, all in violation of 21 U.S.C. § 841(a)(1). Defendant additionally pled guilty to count 3 — controlling a building for the purpose of storing 0.3 grams of cocaine base, in violation of 21 U.S.C. § 856.
The Presentence investigation report ("PSR") found that over the duration of the conspiracy in which defendant participated, the operation, involving approximately 25 coconspirators, distributed 9.93 kilograms of cocaine base. This entire quantity was imputed to defendant for purposes of his sentence, which was imposed by this court on August 20, 1997.
Defendant contends that sentencing him based upon this greater amount of drugs is prohibited by Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant's claims of ineffective assistance of counsel are based exclusively upon counsel's failure to raise the Apprendi issue at trial and on direct appeal.
I. Retroactivity of Apprendi
The Supreme Court held in Apprendi that a defendant may not be sentenced to a term of imprisonment in excess of the statutory maximum based on "sentencing factors" found by the court by a preponderance of the evidence. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). A sentence that exceeds the statutory maximum based on such a finding violates a defendant's right to due process and a jury trial. Id. at 476-77, 490. Before Apprendi, the type and quantity of drugs involved in a crime was a "sentencing factor" to be determined by a judge by a preponderance of the evidence standard. United States v. Jones, 194 F.3d 1178, 1183-84 (10th Cir. 1999). The Tenth Circuit has held that Apprendi establishes a new rule of constitutional law within the meaning of section 2255. Browning v. United States, 241 F.3d 1262, 1266 (10th Cir. 2001).
The Tenth Circuit has not yet determined whether Apprendi is retroactively available in an initial habeas motion. See Browning, 241 F.3d at 1264(declining to authorize second or successive habeas motions by retroactively applying Apprendi); United States v. Speal, 2001 WL 1167261 *2 (10th Cir. Oct. 2, 2001). Because Apprendi was decided after defendant's conviction became final, the Court must examine whether Apprendi applies retroactively to this case on initial collateral review.
Under Teague v. Lane, 489 U.S. 288 (1989), only two types of new rules may be applied retroactively to cases on collateral review: (1) a rule which places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and (2) a watershed constitutional rule of criminal procedure which requires the observance of "those procedures that . . . are implicit in the concept of ordered liberty." 489 U.S. at 307, 311 (quoting Mackey v. United States, 401 U.S. 667 (1971)). Defendant alleges solely that the second Teague exception applies.
A rule that qualifies under the "watershed" exception "must not only improve accuracy, 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 (1990) (quoting Teague, 489 U.S. at 311). The circuit courts which have addressed the issue have held that Apprendi does not meet this exception, thus even initial § 2255 habeas motions seeking to retroactively apply Apprendi are not permitted because Apprendi is not retroactive in its effect. See United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th Cir. 2002); McCoy v. United States, 266 F.3d 1245, 2001 WL 1131653, at *6 (11th Cir. Sept.25, 2001); United States v. Moss, 252 F.3d 993 (8th Cir. 2001), cert. denied, 2002 WL 13705 (2002); United States v. Sanders, 247 F.3d 139, 147 (4th Cir.), cert. denied, 122 S.Ct. 573 (2001).
Similarly, cases in this district to examine the issue have held that Apprendi does not constitute a watershed constitutional rule of criminal procedure, as is necessary to meet the second Teague exception. See e.g., United States v. Moss, 137 F. Supp.2d 1249 (D.Kan. 2001); United States v. Nelson, 177 F. Supp.2d 1181 (D.Kan. 2001); United States v. Mitchell, 2001 WL 1241300 (D. Kan. Oct 12, 2001); Collins v. United States, 2001 WL 699058 (D.Kan. Jun. 11, 2001); United States v. Garcia, 2001 WL 579817 (D.Kan. May 23, 2001).
Some support for defendant's proposition that Apprendi is such a "watershed rule" is found in Justice O'Connor's dissent in Apprendi, which stated that the ruling "will surely be remembered as a watershed change in constitutional law." Apprendi, 120 S.Ct. at 2380. However, the Court does not believe this statement indicates that Apprendi should be applied retroactively to cases on collateral review, in light of Justice O'Connor's explanation in Teague of the narrow scope of cases which fall within its "watershed" exception. See Teague, 489 U.S. at 313-14.
The Court agrees with the reasoning of those courts which have found that Apprendi does not qualify as a watershed rule of criminal procedure. Apprendi does not alter our basic understanding of the bedrock procedural requirements essential to a fair proceeding, such as the right to counsel. See Saffle v. Parks, 494 U.S. 484, 495(1990) (citing Gideon v. Wainwright, 372 U.S. 335 (1963), to illustrate type of rule within watershed exception). This court is persuaded that the Tenth Circuit would hold that the rule announced in Apprendi does not meet the second Teague exception, and thus finds that Apprendi is not retroactively applicable to this case on initial collateral review.
II. Merits of Claims
But even if the merits of defendant's claims were reached, no relief would be warranted. After Apprendi, if a jury is not required to make a drug quantity finding, a defendant may only be sentenced in accordance with the catchall sentencing provision contained in 21 U.S.C. § 841(b)(1)(C). United States v. Jackson, 240 F.3d 1245, 1248 (10th Cir. 2001), overruled on other grounds by United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001). Under that provision, the applicable statutory maximum is twenty years. See 21 U.S.C. § 841(b)(1)(C) ("such person shall be sentenced to a term of imprisonment of not more than 20 years"). Defendant's sentence of 188 months is less than 20 years. Because defendant was sentenced within the statutory range of 0-20 years, there is no Apprendi violation for a failure to charge and prove the amount of drugs involved. Further, where a non-jury factual determination is used to enhance a sentence within the minimum statutory range, Apprendi is not violated. United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir. 2001); see United States v. Sullivan, 255 F.3d 1256, 1265 (10th Cir. 2001) ( Apprendi "does not apply to sentencing factors that increase a defendant's guideline range but do not increase the statutory maximum.")
Defendant's claims of ineffective assistance of counsel are equally without merit. To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690 (1984). Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court recognizes that:
There is a strong presumption that counsel's performance falls within the wide range of professional assistance, (citation omitted); the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. (citation omitted). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. (citation omitted).Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
A court can jump to the prejudice prong without first determining whether counsel's performance was deficient.
Strickland, 466 U.S. at 697. Here, because defendant's sentence of 188 months is less than the 20 years permitted, defendant was not prejudiced by his counsel's failure to raise Apprendi type issues either prior to sentencing, at sentencing, or on appeal.
III. Request for Evidentiary Hearing
Section 2255 requires that the court grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The petitioner "bears the burden of alleging facts which, if proved, would entitle him to relief." Hatch v. State of Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) , cert. denied, 517 U.S. 1235 (1996). No hearing is required where the factual matters raised by defendant's Section 2255 petition may be resolved on the record before the Court. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988). Because defendant's claims of Apprendi violations are resolved conclusively as a matter of law and because he has failed to allege facts that, if true, constitute ineffective assistance of counsel, he is not entitled to a hearing.
IT IS THEREFORE ORDERED that defendant's motion to vacate or correct sentence pursuant to § 2255 (Dk. 693) is denied.