Opinion
01 Civ. 9070 (LAK), (S4 96 Crim. 962 (LAK)).
January 9, 2002
ORDER
Jackie Leonza Walden was convicted on March 3, 1998 of conspiracy to distribute and possess with intent to distribute five kilograms and more of cocaine, see 21 U.S.C. § 846, and later sentenced in principal part to a term of imprisonment of 348 months. As the trial and sentencing antedated the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the jury was charged, without objection, that the quantity of drugs involved was not an element of the offense and the sentence was based in part on the Court's determination that movant was chargeable with "way over" 150 kilograms, probably 400 kilograms, of cocaine. Movant appealed but did not argue that the quantity of drugs was an element of the offense, challenge that aspect of the jury instructions, or contend that the drug quantity determination was for the jury, not the judge. The conviction was affirmed by summary order on November 22, 1999, and the Supreme Court denied certiorari on October 2, 2000.
Walden now moves, pursuant to 28 U.S.C. § 2255, to vacate his sentence and to be resentenced to a term of imprisonment not to exceed 240 months. He moves also to allow nunc pro tunc filing of his Section 2255 petition as of October 2, 2001 and for his counsel's admission pro hac vice. He points out that the maximum permissible sentence for violation of 21 U.S.C. § 846 is 20 years imprisonment unless the quantity of drugs is great enough to raise the maximum sentence to 40 years, see 21 U.S.C. § 841(b)(1)(B), or life, see id. § 841(b)(1)(A). He then goes on to argue that since the quantity of drugs here was determined by the Court rather than the jury, Apprendi requires the conclusion that the maximum permissible sentence in his case was 20 years imprisonment.
1. The first issue is the timeliness of the application for relief under Section 2255. As movant's counsel waited until virtually the last possible moment to send the motion to the Clerk, the original motion was received by the Clerk's office on October 1, 2001, which promptly returned the papers to counsel, evidently because they were not accompanied by a civil cover sheet as is required in this district. Counsel then reformatted the application as a civil pleading and sent them to the Clerk, who received and filed them on October 11, 2001, nine days after the expiration of the AEDPA statute of limitations. Accordingly, movant seeks to have the motion filed nunc pro tunc as of October 2, 2001 or, alternatively, a determination that the statute was equitably tolled for the nine day period. In his reply papers, he claims also that the original motion in fact was "filed" by the Clerk on October 1, although the filing stamp later was "whited out" before the motion was returned to him.
The one year period established by AEDPA is one of limitations, not a jurisdictional bar. Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000). The government expressly has declined to take a position on the timeliness of the motion. Accordingly, the Court assumes, without deciding, that the motion is timely and proceeds to the merits.
2. It is common ground between the parties that Apprendi articulated a new rule of constitutional law. Teague v. Lane, 489 U.S. 288 (1989), established that a new rule cannot form the basis for retroactive collateral review unless it places an entire category of conduct beyond the reach of criminal law, prohibits imposition of a certain type of punishment for a class of defendants, or is necessary to the fundamental fairness of the proceeding. Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997) (quoting Sawyer v. Smith, 497 U.S. 227, 241-42 (1990)), cert. denied, 527 U.S. 1021 (1999). Apprendi certainly did not decriminalize a category of conduct or prohibit imprisonment of drug conspirators. The shift of the determination of drug quantity or other facts permitting sentences above otherwise applicable statutory maxima from the judge to the jury was not necessary to the fundamental fairness of criminal proceedings, as evidenced by the Second Circuit's holding in Bilzerian that the shift of the determination of materiality in false statement cases, see 18 U.S.C. § 1001, from the court to the jury did not come within Teague's exceptions. 127 F.3d at 241. Thus, as several circuits already have held, Apprendi cannot form the basis for retroactive collateral review. See, e.g., McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 1000-01 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000). In consequence, the government argues that Apprendi is not available to movant.
Movant rejoins that he is entitled to the benefit of Apprendi because that case was decided while his petition for a writ of certiorari was pending in the Supreme Court (albeit after the affirmance of his conviction by the Second Circuit) and thus, in movant's view, had not yet become final. He contends that Teague therefore has no bearing here because his case was on direct review when Apprendi came down. But it is unnecessary to decide that question here because movant would not be entitled to relief even if Apprendi were available to him.
3. It is undisputed that movant did not raise the argument he now advances at any time prior to the filing of this motion. ( See Mov. Reply Mem. 3) The point therefore is foreclosed "unless he can establish both cause for the procedural default and actual prejudice resulting therefrom or that he is `actually innocent' of the crime of which he was convicted." DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998). This he has not done.
To begin with, the fact that Apprendi had not been decided at the time of trial or of the appeal to the Second Circuit does not constitute cause. The lack of precedent for a position is not "cause" for failing to make a legal argument. "[E]ven when the law is against a contention, a litigant must make the argument to preserve it for later consideration." United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001); see also Bousley v. United States, 523 U.S. 614, 623 (1998); DeJesus, 161 F.3d at 102 (likely futility of raising issue not "cause" where futility amounts only to a contention that the court likely would have rejected the claim).
In any case, movant has not demonstrated prejudice from his failure to raise the Apprendi argument earlier. The proof that movant's offense involved, and that he was chargeable for sentencing purposes with, vastly more than 500 grams of cocaine, the amount necessary to permit a sentence of up to 40 years, see 21 U.S.C. § 841(b)(1)(B), simply was overwhelming. In fact, movant stipulated that the weight of the cocaine seized from the Craft Avenue apartment — to which his own witnesses connected him — was approximately 1.01 kilograms. There is, as the government argues, "no plausible argument that the jury, if presented with the question, could have found that the offense involved less than 500 grams of cocaine." (Govt. Mem. 20.)
Accordingly, the motion to deem the Section 2255 motion filed on October 2, 2001 or for other relief is denied as moot in view of the government's position and the Court's assumption of timeliness. The Section 2255 motion is denied on the merits. The pro hac vice motion is granted.
As the motion raises no substantial constitutional issue, a certificate of appealability is denied. Any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915.
SO ORDERED.