Opinion
No. 00 CV 6808 (SJ).
February 17, 2005
CARLOS ESTRADA, Springfield, MO, Petitioner Pro Se
OFFICE OF THE U.S. ATTORNEY, Brooklyn, NY, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Carlos Estrada ("Petitioner") brings this Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Petitioner asserts that: 1) his conviction and sentence were imposed without submitting essential elements of the offense to the jury for proof beyond a reasonable doubt, in violation of his Sixth Amendment right to trial by jury, as outlined inApprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 124 S.Ct. 2531 (2004); and 2) his appellate counsel was ineffective in that appellate counsel failed to preserve theApprendi issue on appeal.
BACKGROUND
Petitioner was convicted, after a trial by jury, of three counts of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. United States v. Estrada, 2003 WL 562291 (2d Cir. 2003). Petitioner was convicted in 1996 but was not sentenced until January 25, 2002. (Id.; Mem. Law Supp. Pet. at 2.) The Court initially stated that Petitioner would be sentenced to 324 months on each count, running concurrently. (Mem. Law Supp. Pet. at 2.) However, defense counsel raised the argument that the 324 month sentence would exceed the statutory maximum of 20 years provided by 28 U.S.C. § 841(a)(1)(C) and would be based on factors — specifically, the quantity of drugs distributed and Petitioner's role as an organizer or leader — that were not charged in the indictment or presented to the jury for proof beyond a reasonable doubt, and thus would be in violation of Apprendi, 530 U.S. 466. (Id.) The Court therefore modified the sentence to consist of 240 months (the statutory maximum) on two of the counts, running concurrently, and a further consecutive sentence of 84 months on the third count, running consecutively. (Id.)
Petitioner appealed his conviction and sentence to the Second Circuit, and on February 28, 2003 the Second Circuit upheld the judgment. Estrada, 2003 WL 562291. Petitioner's appellate counsel did not raise the Apprendi issue to the Second Circuit.See id. On November 10, 2003 the Supreme Court denied certiorari. (Mem. Law Supp. Pet. at 3.)
DISCUSSION
Petitioner is correct that since Petitioner's case was still pending on direct review at the time Apprendi was decided, the rules regarding retroactivity do not bar this Court from considering the question of whether Petitioner's sentencing was in violation of Apprendi. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987).
However, Petitioner's conviction became final long before the Supreme Court decided Blakely, 124 S.Ct. 2531, on June 24, 2004. At the present time, all indications are that Blakely does not apply retroactively to either first or successive § 2255 motions, as Blakely announced a procedural rule that does not fall within either of the exceptions defined in Teague v. Lane, 489 U.S. 288 (1989). See, e.g., Green v. U.S., No. 04-6564, 2005 WL 237204 (2d Cir. 2005) (denying authorization to file a second or successive habeas petition under 28 U.S.C. § 2255 because Blakely did not establish a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004) ("To date, the Supreme Court has not . . . announced Blakely to be a new rule of constitutional law, nor has the Court held it to apply retroactively on collateral review."); Warren v. United States, No. 3:01 CV 179, 2005 WL 165385, *10 (D.Conn. Jan. 25, 2005); Garcia v. United States, No. 04-CV-0465, 2004 WL 1752588, *5 (N.D.N.Y. Aug. 4, 2004);Bishop v. United States, No. 04 Civ. 3633, 2004 WL 2516715, *10 n. 8 (S.D.N.Y. Nov. 8, 2004). Therefore this Court cannot apply Blakely retroactively to Petitioner's claims.
Nevertheless, the fact remains that Petitioner's sentence did not violate Apprendi or Blakely. As the Second Circuit has explained, "nothing in the Court's holding in Apprendi or its explication of the holding . . . alters a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum." United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001). Rather, Apprendi requires that facts, other than prior convictions, that increase the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. 466.
The Court imposed sentences within the statutory maximum on each of the counts for which Petitioner had been convicted. The total sentence exceeded the statutory maximum only because the Court elected to impose consecutive, rather than concurrent sentences. The Second Circuit has pointed out that "in Apprendi itself, the Supreme Court stated that the issue of consecutive sentences in the context of the case at hand was irrelevant to the Court's determination whether the sentencing court had impermissibly exceeded the statutory maximum for the particular count in question." United States v. White, 240 F.3d 127, 135 (2d Cir. 2001) (citing Apprendi, 530 U.S. at 474). Where a court has not exceeded the statutory maximum sentence for any particular count, "[i]t cannot . . . be said that, as to any individual count, the court's findings resulted in the imposition of a greater punishment than was authorized by the jury's verdict." Id. Therefore,Apprendi does not apply. Id.
Because Petitioner's sentence was not in violation ofApprendi, his appellate counsel cannot be considered ineffective for failing to raise the issue on appeal. Duarte v. United States, 289 F.Supp.2d 487, 492 (S.D.N.Y. 2003).
CONCLUSION
For the reasons stated herein, Petitioner has not established that he received ineffective assistance of counsel, or that he is eligible for a modification of his sentence under Apprendi, 530 U.S. 466, or Blakeley, 124 S.Ct. 2531. Petitioner's 28 U.S.C. § 2255 motion is therefore DENIED.
For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing "does not require a petitioner to demonstrate that he would prevail on the merits, but merely that `reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Santana v. United States, 2005 WL 180932, at *7 (S.D.N.Y. Jan. 26, 2005) (quoting Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002)) (internal quotation marks and citation omitted). Where a petition is dismissed on procedural grounds, the petitioner seeking a certificate of appealability must show that both the procedural and underlying constitutional issues are reasonably debatable. Sosa v. United States, 2003 WL 22218505, *1 (S.D.N.Y. Sept. 25, 2003). Petitioner has made no substantial showing of the denial of a constitutional right in this case. Accordingly, this Court denies a certificate of appealability.
SO ORDERED.