Opinion
01-CV-1061 (NPM), 92-CR-51-001
October 27, 2003
CARNELL DONALDSON, Coleman, FL, of Counsel for Petitioner, Pro Se
HON. GLEN SUDDABY, GRANT C. JAQUITH, Albany, NY, of Counsel for Northern District of New York
MEMORANDUM-DECISION AND ORDER
Eleven years ago, in October 1992, a jury convicted pro se petitioner Carnell Donaldson of (1) a narcotic conspiracy pursuant to 21 U.S.C. § 846; (2) aiding and abetting distribution of cocaine; (3) a continuing criminal enterprise ("CCE"); and (4) criminal forfeiture. The Second Circuit affirmed Donaldson's conviction in June 1993, in an unpublished opinion. See U.S. v. Donaldson. 999 F.2d 537 (2d Cir. 1993).
The United States incorrectly cites as 100 F.3d 944.
In June 2001, Donaldson sought relief under 28 U.S.C. § 2255, the habeas corpus statute. This court concluded that such relief was both untimely and without merit. See Donaldson v. U.S., 01-CV-1061, 92-CR-51-001, 2002 WL 1839213 (N.D.N.Y. Aug. 6, 2002). The court assumes familiarity with that decision, but several aspects are noteworthy as they impact Donaldson's current motion.
A copy of this slip opinion is attached to petitioner's current motion, but citations herein are to the Westlaw version.
There, the court rejected Donaldson's attack on his 400 month sentence of imprisonment. Donaldson challenged that sentence because in calculating the same, the court did not make a drug quantity determination; nor did the indictment specify drug quantity. The court denied this aspect of Donaldson's motion as untimely. See id. at *1-*3. Even if timely, the court held that Donaldson could not avail himself of this drug quantity argument because his sentence is within the statutory minimum. See id. at *3. Donaldson also contested his CCE conviction, arguing that the jury charge did not require unanimity with respect to each of the three `Violations" which comprise a "continuing series of violations" under the CCE statute, 28 U.S.C. § 848. The court also found this argument to be time-barred. See id. at *4. Even if that CCE argument had been timely made, the court also found it to be without merit. Among other reasons the court explained, "the jury unanimously found [Donaldson] guilty of eight violations — any three of which are sufficient to establish the `continuing series of violations' for purposes of the CCE count." Id. at *6. In light of the foregoing, on August 6, 2002 the court denied petitioner's section 2255 "motion to vacate, set aside, or correct his sentence[.]"Id.
Approximately one year after that denial, on August 15, 2003, Donaldson filed what he terms a "Motion to Dismiss Indictment." See Doc. # 12 at 1. Nowhere in this motion does Donaldson indicate what statute and/or rule he is relying upon as the procedural mechanism for this motion. Donaldson does, however, identify three separate possible substantive bases for this motion: (1) "lack of jurisdiction;" (2) "double jeopardy;" and (3) "due process violation." Id. He is also claiming ineffective assistance of counsel because purportedly his lawyer failed to make a double jeopardy argument.
With no explanation, the Government baldly asserts that the present motion is a "second or successive" petition for relief under section 2255. Thus, the government reasons, the court lacks jurisdiction and it must transfer this case to the Court of Appeals for a certificate of appealability determination. Further, the Government maintains that insofar as Donaldson is seeking dismissal of the indictment based upon a claimed jurisdictional defect, he is not entitled to that relief because his own criminal case is no longer pending. As to Donaldson's ineffective assistance of counsel claim, the Government reasons that because he could have pursued such a claim in his original petition, the AEDPA precludes him from doing so now.
On October 7, 2003, petitioner filed his reply to the Government's opposition, strongly urging the court not to construe his motion as one made pursuant to 28 U.S.C. § 2255. He also challenges the Government's reliance upon United States v. Ganci, 47 F.3d 72 (2d Cir. 1995), to support its argument that Donaldson has not alleged a viable double jeopardy claim. On that basis, Donaldson further maintains that he has stated an ineffective assistance of counsel claim.
Discussion
I. Jurisdiction
"The enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, introduced several new elements into the federal habeas framework[,]" among them is a "provision that certain petitioners must secure permission before filing additional petitions[.]'" See Miranda v. Bennett 322 F.3d 171, 177 and 178 (2d Cir. 2003). The so-called "gatekeeping" provisions of the AEDPA "promote finality of adjudications of habeas claims[.]"See Gandarilla v. Artuz, 322 F.3d 182, 184 (2d Cir. 2003). Due to the lack of a statutory definition, however, the issue becomes "what constitutes a `second or successive' petition" so as to invoke the AEDPA's gatekeeping provisions. See Villanueva v. United States. Nos. 00-3580(L), 01-3524(CON), 2003 WL 22119745, at *2 (2d Cir. Sept. 15, 2003) (internal quotation marks and citation omitted).
Section 2243(b)(3)(A), which is germane to the present case, reads as follows:
Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.28 U.S.C. § 2243(b)(3)(A).
In Villaneueva. the Second Circuit outlined a few guiding principles regarding whether a given petition is a "second or successive one." First of all, "to be considered `successive,' a prisoner's second petition must, in a broad sense, represent a second attack by federal habeas petition on the same conviction."Id.(emphasis added) (internal quotation marks and citation omitted). By the same token, in this Circuit "a § 2255 petition will not be considered second or successive unless a prior § 2255 petition was adjudicated on the merits." Id. (emphasis added) (citations omitted). Concluding its discussion of successive petitions by explaining that "a § 2255 petition properly found to be untimely under AEDPA presents a permanent and incurable bar to federal review of the merits of the claim . . . because, . . ., a time-bar cannot be corrected[,]" theVillanueva Court held "that a habeas or § 2255 petition that is properly dismissed as time-barred under AEDPA constitutes an adjudication on the merits for successive purposes." Id. at *3.
On the other hand, even if a prior petition clearly was decided on the merits, "a determination of whether [it] is `second or successive' . . . is subject to the equitable principles underlying the pre-AEDPA `abuse-of-the-writ' doctrine." Id. (citation omitted). "Under this doctrine, a subsequent petition is `second or successive' when it raises a claim that was, or could have been raised in an earlier petition." Id. (internal quotation marks and citation omitted). To illustrate, in Villanueva. the petitioner alleged that at sentencing the district court misapplied the United States Sentencing Guidelines.See id. at *4. Because that "claim was available when Villanueva filed his first § 2255 petition in 1998[,]" the Court held that his "petition me[t] the criteria of a `second or successive' petition and is subject to the AEDPA gatekeeping provision of 28 U.S.C. § 2244."Id. (citation omitted).
Application of the foregoing principles to the present motion shows that regardless of how styled, this motion is a second or successive petition. In reaching this conclusion, the court is fully aware that "the Supreme Court has rejected a rigid construction of [the] AEDPA[.]"Id. at *3 (citing Stewart v. Martinez-Villareal, 523 U.S. 637, 643-44, 118 S.Ct. 1618 (1998)). Likewise, the court is mindful that "a numerically second petition does not necessarily constitute a `second' petition for . . . purposes of [the] AEDPA." James v. Walsh. 308 F.3d 162, 167 (2d Cir. 2002) (citation omitted). Similarly, "a disposition of a prior petition is not per se sufficient to trigger AEDPA's gatekeeping provisions."Villanueva, 2003 WL 2219745, at *2 (citation omitted).
Although not the model of clarity, evidently on this motion Donaldson is arguing ineffective assistance of counsel, as well as arguing that the indictment was defective because it charged him with both a drug conspiracy and a CCE, resulting in a violation of the double jeopardy clause. In his reply memorandum, Donaldson's declares that this "motion to dismiss [the] indictment [is] ` not a 28 u.s.c. sec. 2255 '" petition. Reply at 1 (emphasis added). This unequivocal statement shows that Donaldson is acutely aware of the consequences, i.e. denial of this motion, if the court treats the same as a section 2255 petition. Nonetheless, looking beyond the form of Donaldson's present motion convinces the court that substantively it is nothing more than a "second attack" on the same conviction, and as such must be denied as an improper second habeas petition.
As the court's discussion of Donaldson's original 2255 petition makes clear, that petition was dismissed as untimely. Donaldson is not contending otherwise. That failure is significant because of the six ways in which a prior petition will not be considered as a adjudication on the merits, erroneous dismissal as untimely is one. See Villanueva, 2003 WL 22119745, at *2. Thus, in light of the Second Circuit's explicit holding in Villaneuva. in conjunction with Donaldson's failure to challenge dismissal of his prior petition as erroneous, undoubtedly dismissal of that petition "constitutes an adjudication on the merits for successive purposes."See id. at *3.
There is another basis for finding that this is Donaldson's second 2255 petition, and that is the fact that he is asserting claims that could have been raised in his prior petition. Nothing prevented Donaldson from raising his ineffective assistance of counsel claim in his first petition, but he did not.
Finally, even if the court was not persuaded that this is Donaldson's "second or successive" petition, it would deny the same because dismissal of the indictment is improper at this juncture. See U.S. v. Patton. 309 F.3d 1093, 1094 (8th Cir. 2002) (a motion challenging district court's jurisdiction, after the denial of a section 2255 motion, properly denied where "proceeding that lead to [inmate's] conviction and sentence [wa]s no longer pending"). As the Eighth Circuit so aptly put it in Patton. a federal inmate "may not use a motion to dismiss the indictment to bypass the requirement that he obtain authorization for a successive collateral filing." See id. That same reasoning applies here. Donaldson cannot avoid the AEDPA's gatekeeping provisions simply by restyling his petition as a motion to dismiss the indictment. That would be a classic example of, in this case, impermissibly exalting form over substance. See Walsh. 308 F.3d at 166 (citation omitted) ("We have held that it is the substance of the petition, rather than its form, that determines the applicability of AEDPA[.]")
Given that this is an impermissible second, successive petition, in combination with the fact that Donaldson did not first obtain a certificate of appealability from the Court of Appeals, this district court is without jurisdiction to consider same and must transfer this motion to the Second Circuit. See Poindexter v. Nash, 333 F.3d 372, 382 (2d Cir. 2003) (citing, inter alia, 28 U.S.C. § 2244(b)(3)); see also Gandarilla. 322 F.3d at 186 (citations omitted) ("When a second or successive petition or motion is filed in the district court, the district court must transfer the new petition or motion to the court of appeals for a determination of whether the petition may be filed.")
This requirement is found in section 2255, which provides in relevant part:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain — (1) newly discovered evidence, that, if proven and viewed in light of the evidence as whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255 (emphasis added).
II. Ineffective Assistance of Counsel
Assuming arguendo that this court does have jurisdiction to entertain the present motion, nevertheless it would deny the same on the merits. Apparently Donaldson is claiming that he had ineffective assistance of counsel because his counsel did not make a double jeopardy argument. In particular, Donaldson asserts that his defense lawyer should have argued that Donaldson could not be charged with both a narcotics conspiracy under 21 U.S.C. § 846 and a CCE. There is no need to address this double jeopardy argument, however, because Donaldson has not shown or even asserted "actual innocence" — a necessary predicate to any ineffective assistance of counsel claim, regardless of the basis for same. See Poindexter, 333 F.3d at 380 (petitioner's ineffective assistance of counsel claim invalid because, inter alia, it "was not based on any viable assertion that he [was] innocent of the . . . offenses"). Nowhere in either his original memorandum or in his reply does Donaldson contend that he was actually innocent of any of the crimes for which he was convicted. He is not maintaining that he did not aid and abet in the distribution of cocaine. Nor is he claiming that he did not participate in a narcotic conspiracy or a CCE. Instead, he focuses primarily upon whether being charged with the latter two offenses, and his subsequent conviction thereon, amounts to double jeopardy. Moreover, the ample record certainly does not support a finding of actual innocence here.
Not only does Donaldson fail to assert actual innocence, but this ineffective assistance of counsel claim was readily available to him when he filed his original petition in 1998, but he failed to raise it at that time. This is yet another reason supporting the conclusion that the present motion is actually a second or successive petition and hence subject to the AEDPA's gatekeeping provisions.
For all of these reasons, the court hereby DENIES petitioner Carnell Donaldson's "Motion to Dismiss Indictment;" and directs the Clerk of the Court to transfer this matter to the Second Circuit Court of Appeals for a determination under 28 U.S.C. § 2244(b)(3).
IT IS SO ORDERED.