Opinion
01 Civ. 9379 (JFK); 91 Cr. 568 (JFK) file in
August 1, 2002
Ramon Vega, Pro Se, Reg. No.: 33682-054, F.C.I. Allenwood, White Deer, PA for Petitioner.
JAMES B. COMEY, United States Attorney for the Southern District of New York, New York, New York, Of Counsel: Jonathan Leiken, Assistant United States Attorney, for Respondent.
OPINION AND ORDER
Before the Court is the motion of pro se petitioner Ramon Vega ("Vega") to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. For the following reasons, Vega's motion is denied.
BACKGROUND
I. Factual and Procedural History
Vega was charged in a four count indictment, 91 CR 568 (JFK), filed on July 8, 1991. Count One ( 21 U.S.C. § 846) charged that from late 1988 to June 1991, Vega, along with known and unknown co-conspirators, conspired to possess and distribute in excess of one kilogram of heroin in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(A). Count Two (21 U.S.C. § 924(c)) charged that in or about late December 1990, Vega used and carried a firearm during and in relation to drug trafficking crimes, specifically those charged in Count One. Count Three ( 18 U.S.C. § 922(g)) charged that in or about late December 1990, Vega, being a person who previously had been convicted of a crime punishable by imprisonment for a term exceeding one year, unlawfully and knowingly possessed a firearm. Count Four ( 18 U.S.C. § 922(c)) charged that in or about late December 1990, Vega unlawfully and knowingly possessed a machine gun.
Trial began on June 24, 1992, and on July 1, 1992 the jury returned a guilty verdict on Count One. The jury acquitted Vega on Counts Two, Three, and Four.
On October 27, 1992, the Court sentenced Vega to 192 months (sixteen years) imprisonment. Following sentencing, the government entered into a written agreement ("The Agreement") with Vega stating that neither he nor the government would appeal the Court's sentence. The Agreement was signed by Vega, his attorney, and Assistant United States Attorney David Meister. Dated November 4, 1992, it stated:
In consideration of Ramon Vega's agreement not to appeal the judgement of conviction and/or sentence entered against him in this case, the government agrees not to appeal his judgement of conviction and/or sentence.
On May 11, 2001, Vega applied to the United States Court of Appeals for the Second Circuit for an order authorizing consideration of a second or successive motion brought under 28 U.S.C. § 2255. The Second Circuit denied the motion without prejudice on June 4, 2001, because petitioner never filed a prior § 2255 motion. The Second Circuit allowed petitioner to raise his claims in a properly filed motion before the district court, which he does now in this motion filed October 2, 2001.
II. Petitioner's Claims
Vega claims his sentence is invalid under the rule of Apprendi v. New Jersey, 520 U.S. 422 (2000), because the district judge, not the jury, determined the narcotics quantity in issue. Vega also argues that 21 U.S.C. § 841(b)(1)(A) is unconstitutional both on its face, and in its application to him. Further, in a supplement to his § 2255 motion, Vega. claims that the length of his sentence, sixteen years imprisonment plus ten years supervised release, exceeds the statutory maximum by six years, in light of the Apprendi rule.
DISCUSSION
I. Time Requirements of AEDPA
Section 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one-year period of limitations applies, running from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255.
Vega filed this petition with this Court on October 2, 2001, more than nine years after the date of his original conviction. He did not file any direct appeal of his July 1, 1992 conviction, as per his Agreement with the government, which for purposes of AEDPA became final on April 24, 1997. See Ross v. Artuz, 150 F.3d 97, 102 (2d Cir. 1998) (noting that prisoners whose convictions became final prior to the effective AEDPA date, April 24, 1996, had a grace period of one year, until April 24, 1997, in which to file their habeas corpus petitions). Thus, Vega fails to meet the time restrictions of § 2255(1).
Vega advances no argument to support applying the alternative limitation periods set forth in §§ 2255(2) or (4).
Rather, Vega attempts to bring this motion under § 2255(3), under the new rule of Apprendi. Strictly applying 28 U.S.C. § 2255(3), Vega's petition should have been brought by June 27, 2001, the one-year anniversary of Apprendi. However, Vega did bring a motion on May 11, 2001, before the Court of Appeals for the Second Circuit seeking consideration of a second or successive § 2255 motion. Because that motion was brought within the one-year time restriction, this Court recognizes that equitable tolling is appropriate here and does not dismiss the petitioner's motion as time-barred on this specific ground. See Polonco v. Drug Enforcement Admin., 158 F.3d 647, 655 (2d Cir. 1998) (noting "[the] doctrine [of equitable tolling] allows a district court to toll the statute of limitations where, inter alia, a plaintiff initially `asserted his rights in the wrong forum'") (citing Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (internal quotation marks, citations, and alterations omitted))).
However, § 2255(3) also clearly states that the recognized right must apply retroactively to cases on collateral review. Because Apprendi is not retroactively applicable, as set forth below, Vega cannot take advantage of the Aprrendi decision to collaterally attack his sentence.
II. The Retroactivity of Apprendi
The Supreme Court has not directly ruled on the issue of the retroactivity of Apprendi. While the Second Circuit has heard oral arguments on this issue, to date no decision has been rendered. See Beatty v. United States, No. 01-2493, 2002 U.S. App. LEXIS 9832, *8 n. 3 (2d Cir. May 24, 2002) (citing United States v. Luciano (Parise), No. 01-1198 (2d Cir. argued Jan. 28, 2002).
The new rule of Constitutional law the Apprendi Court announced was "[o]ther 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." 530 U.S. at 490. New rules of substantive law are automatically applied to cases on collateral review, while new rules of criminal procedure are presumptively nonretroactive. See Parrado v. United States, No. 01 Civ. 2892, 2002 U.S. Dist. LEXIS 11325, at *6 (S.D.N.Y. June 25, 2002) (Leisure, J.) (citing Rosario v. United States, No. 00 Civ. 9295, 2001 U.S. Dist. LEXIS 13384 (S.D.N.Y. Aug. 30, 2001); Teague v. Lane, 489 U.S. 288, 310 (1989)). Therefore, the retroactivity of Apprendi turns on whether the rule is substantive or procedural. The language of the Apprendi opinion strongly indicates that the rule is procedural. "The substantive basis for New Jersey's enhancement is thus not an issue; the adequacy of New Jersey's procedure is." Apprendi, 530 U.S. at 475. Reinforcing this view are various courts' presumptions that the Apprendi rule is procedural and therefore non-retroactive. See Parrado, 2002 U.S. Dist. LEXIS 11325, at *6-*7 (citing United States v. Sanders, 247 F.3d 139, 147 (4th Cir. 2001) (holding the language of Apprendi dictates the rule is procedural)); Raulston v. Menifee, No. 01 Civ. 0406, 2002 U.S. Dist. LEXIS 7767, *12 (S.D.N.Y. Apr. 30, 2002) (concluding that the rule of Apprendi is procedural). The language of Apprendi itself, coupled with the decisions of other courts, leads this Court to hold that the rule is procedural.
Rules of criminal procedure are presumptively nonretroactive, however they can be applied retroactively on collateral review if either the Supreme Court designates the rule retroactive, see Tyler v. Cain, 533 U.S. 656, 665 (2001), or it falls within one of the two limited Teague exceptions. See Teague, 489 U.S. at 311. The Second Circuit has interpreted these exceptions to apply only to:
(1) new rules which "place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense;" and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal 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).
The Supreme Court has not designated the Aprrendi rule to be retroactive. See Forbes v. United States, 262 F.3d 143, 145 (2d. Cir. 2001) (per curiam). Furthermore, courts in the Southern District of New York have held that the Apprendi rule does not satisfy either Teague exception, and therefore is inapplicable retroactively to cases on collateral review. See Acevedo v. United States, 00 Civ. 9696, 2002 U.S. Dist. LEXIS 12006, at *5-*8 (S.D.N.Y. July 3, 2002) (holding that Apprendi does not apply on collateral review); Parrado, 2002 U.S. Dist. LEXIS 11325, at *8 (same); Raulston, 2002 U.S. Dist LEXIS 7767, at *13-*14 (same); Fiumara v. United States, 198 F. Supp.2d 427, 431 and n. 5 (S.D.N.Y. Apr. 3, 2002) (Sprizzo, J.) (same); Saldarriaga v. United States, No. 99 Civ. 4487, 2002 U.S. Dist. LEXIS 4781, at *18 (S.D.N.Y. Mar. 21, 2002) (same); Garcia v. United States, No. 01 Civ. 7188, 2002 U.S. Dist. LEXIS 340, at *5-*6 (S.D.N.Y. Jan. 11, 2002) (same). But see Rosario, 2001 U.S. Dist. LEXIS 13384, at *8 (holding the Apprendi rule is substantive and therefore retroactive). And while the Second Circuit has not specifically ruled on this issue, see Forbes, 262 F.3d 143, the Fourth, Eighth, Ninth, and Eleventh Circuits have all determined that Apprendi should not be applied retroactively to cases on collateral review. See Sanders, 247 F.3d at 147-51 (holding Apprendi is not applicable on collateral review); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) (same); McCoy v. United States, 266 F.3d 1245, 1257-58 (11th Cir. 2001)(same); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000) (same).
Specifically, courts that have considered whether Apprendi fits within either Teague exception have rejected the first exception, because Apprendi clearly does not decriminalize an entire category of conduct or prohibit a certain type of punishment. See Parrado, 2002 U.S. Dist. LEXIS 11325, at *10; Sanders, 247 F.3d at 148; Raulston, 2002 U.S. Dist. LEXIS 7767, at *12.
The second exception is also inapplicable. Reserved for "watershed rules" that "`alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding," this high standard is seldom met. Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311). The Second Circuit has noted that the Supreme Court "has measured at least eleven new rules, or proposed new rules, of criminal procedure against the criteria for the second [Teague] exception, and in every case, has refused to apply the ruly at issue retroactively." United States v. Mandanici, 205 F.3d 519, 529 (2d Cir.) (citations omitted), cert. denied, 531 U.S. 879 (2000).
The rule announced by the Supreme Court in Gideon v. Wainwriqht, 372 U.S. 335 (1963), that the Sixth Amendment right to counsel applies to all felony prosecutions, is an example of a case which alters "our understanding of the bedrock procedural elements," and thus satisfies the second Teague exception. See O'Dell v. Netherland, 521 U.S. 151, 167 (1997).
This high hurdle is cleared only when failure to adopt it will create an "impermissibly large risk that the innocent will be convicted" and the procedure at issue implicates the "fundamental fairness of the trial." Teague, 489 U.S. at 312. The new rule in Apprendi falls far short of this standard. To shift the burden of determining factors that lead to sentence enhancement from the judge to the jury poses no threat of an innocent defendant being convicted, nor does it implicate the "fundamental fairness" of a criminal proceeding.
The Second Circuit in Bilzerian announced that shifting an element of proof from the judge to the jury was not a watershed rule:
The rule in Gaudin merely shifts the determination of materiality from the judge to the jury. This shifting does not "alter our understanding of the bedrock procedural elements" essential to the fairness of a trial. Teague, 489 U.S. at 311. There is little reason to believe that juries will have substantially different interpretations of materiality than judges and therefore, practically speaking, Gaudin will do little to alter the status quo. Bilzerian's argument that the Gaudin rule should be applied retroactively must fail.127 F.3d at 241.
Significantly, an overwhelming majority of district courts have reached the same conclusion as the Second Circuit, often citing Bilzerian and Mandanici as precedent. See United States v. Latney, 131 F. Supp.2d 31, 33-34 (D.D.C. 2001); United States v. Goode, 143 F. Supp.2d 817, 821-24 (E.D. Mich. 2001); United States v. Lang, 159 F. Supp.2d 398, 401-02 (N.D. Tex. 2001); Rivera v. United States, 136 F. Supp.2d 1263, 1270 (D. Ore. 2000) ("This Court agrees with the Government's contention that the rule of Apprendi will not be applied retroactively to cases on collateral review."); Ware v. United States, 124 F. Supp.2d 590, 600 (M.D. Tenn. 2000); United States v. Gibbs, 125 F. Supp.2d 700, 706-07 (E.D. Pa. 2000); Klein v. United States, 125 F. Supp.2d 460, 467 (D. Wyo. 2000); United States v. Seehausen, Nos. 00 C 4829, 98 Cr. 511-1, 2000 U.S. Dist. LEXIS 17964, at *6 (N.D. Ill. Dec. 11, 2000); United States v. Johnson, 126 F. Supp.2d 1222, 1226 (D. Neb. 2000); West v. United States, 123 F. Supp.2d 845 (D. Md. 2000), aff'd 246 F.3d 671 (table) (4th Cir. 2001).
Therefore, the court holds that Apprendi is not retroactively applicable to cases on collateral review.
III. Apprendi's Application to Vega's Case
If either the Supreme Court or the Second Circuit were to hold that the Apprendi ruling applies on collateral review, Vega's motion would still fail because Apprendi is inapplicable to the facts of this case.
Apprendi applies only when the judge, as opposed to the jury, decides an element of the crime that would lead to a sentence beyond the statutory maximum. See United States v. Norris, 281 F.3d 357, 360 (2d Cir. 2002); United States v. Thomas, 274 F.3d 655, 663 (2d Cir. 2001) (en banc). The Second Circuit has ruled that "in light of our applicable precedents, . . . Apprendi does not apply to [guideline] enhancements that determine a sentence that is within the applicable statutory maximum and that would otherwise be above the applicable statutory minimum." Norris, 281 F.3d at 359. Vega was convicted of conspiring to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 841(b)(1)(A). This charge carries with it a minimum term of 120 months and authorizes a sentence of up to life imprisonment. See United States v. Guevara, 277 F.3d 111, 117 (2d Cir. 2001). Vega was sentenced to 192 months, clearly below the statutory maximum of life imprisonment.
However, the Second Circuit further announced that "under Apprendi, `if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, [ 21 U.S.C. § 841(b)(1)(C)], then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury.'" Guevara, 277 F.3d at 117 (quoting Thomas, 274 F.3d 655). The maximum statutory sentence for an indeterminate quantity of drugs, 21 U.S.C. § 841(b)(1)(C), is 240 months if the defendant has no prior drug felonies, as is the case here. See Guevara, 277 F.3d at 117. Vega's 192 month sentence also complies with this statutory maximum.
Therefore, Vega was sentenced below the statutory maximum for his crime, and Apprendi provides him no relief.
IV. Vera's Claim That § 841(b)(1)(A) is Unconstitutional in Light of Apprendi
Vega claims that the Supreme Court's ruling in Apprendi makes 21 U.S.C. § 841(b)(1)(A) unconstitutional both in its application to the petition, and on its face.
The constitutionality of § 841(b)(1)(A) as personally. applied to Vega has already been discussed under Subheading III, and his argument fails for the reasons discussed therein.
As to the broader argument that § 841(b)(1)(A) has in some way become unconstitutional in light of Apprendi, I reject this argument as being without merit.
Petitioner advances no concrete argument to support the contention that § 841(b)(1)(A) is unconstitutional on its face. Vega assumes that § 841(b) requires the judge to determine the type and quantity of drug in issue, which may increase the statutory maximum sentence, thus offending Apprendi, because the jury was not the one to determine this beyond a reasonable doubt. But the plain language of § 841(b) contains no such restriction. Rather, § 841(b) is silent as to what procedures courts may use to implement it, and therefore the Apprendi rule cannot conflict with its express terms. See United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir. 2001).
Further, numerous courts have upheld the constitutionality of federal narcotics laws since Apprendi. See e.g., United States v. Buckland, 277 F.3d 1173 (9th Cir. 2002) (en banc), cert. denied, 2002 U.S. LEXIS 3989 (U.S. May 28, 2002); United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir. 2001); United States v. Brough, 243 F.3d 1078, 1079-80 (7th Cir. 2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532 U.S. 1045 (2001); United States v. Candelario, 240 F.3d 1300, 1311 n. 16 (11th Cir. 2001), cert. denied, 533 U.S. 922 (2001).
In the Southern District of New York, Judge Cote recently stated in rejecting a similar claim that "nothing in Apprendi renders . . . Section 841 . . . of Title 21, United States Code, unconstitutional." Coleman v. United States, 2001 WL 262738, at *1 (S.D.N.Y. Mar. 15, 2001).
This court holds that § 841(b)(1)(A) is constitutional both on its face, and in its application to Vega.
V. Vega's Claim That The Court Imposed an Improper Sentence
Vega argues that this Court imposed an improper sentence, exceeding the twenty year statutory maximum that he was informed he could receive, when the term of imprisonment (sixteen years) is combined with his term of supervised release (ten years). Vega alleges this too violates Apprendi. Vega is wrong. The Second Circuit notes that "it is well settled . . . that punishment for a violation of supervised release is separate from punishment for the underlying conviction and may, when combined with the latter, exceed the statutory maximum for the underlying offense." United States v. Wirth, 250 F.3d 165, 170 n. 3 (citing United States v. Colt, 126 F.3d 981, 982-83 (7th Cir. 1997); United States v. Robinson, 62 F.3d 1282, 1285 (10th Cir. 1995); United States v. Wright, 2 F.3d 175, 179-80 (6th Cir. 1993); United States v. Purvis, 940 F.2d 1276, 1279 (9th Cir. 1991); United States v. Jamison, 934 F.2d 371, 373 (D.C. Cir. 1991); United States v. Williams, 919 F.2d 266, 272 (5th Cir. 1990); see also Ring v. Arizona, 122 S.Ct. 2428 (2002).
Therefore, the sentence that Vega received was not improper under Apprendi, and this argument fails.
CONCLUSION
Vega's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction and sentence is hereby denied.
Because Petitioner has not made a substantial showing of denial of a constitutional right, a certification of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
This case is closed, and the Court directs the Clerk of Court to remove this case from the Court's active docket.
SO ORDERED.