Opinion
5:01-CV-1046 (HGM)
June 14, 2002
VYRON HARGRETT, Petitioner Pro Se, Federal Correctional Institution, Ray Brook, New York.
HON. JOSEPH A. PAVONE, United States Attorney for the Northern District of New York Syracuse, New York, Attorney for Respondent
MEMORANDUM — DECISION AND ORDER
Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct the sentence of imprisonment he received on September 9th, 1996, in the United States District Court for the Northern District of New York. Petitioner pled guilty to engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848, conspiracy to distribute cocaine and crack cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute and distribution of cocaine and crack cocaine, in violation of 21 U.S.C. § 841. On May 22, 1997, petitioner was sentenced to a period of 216 months imprisonment, five years of supervised release, and forfeiture of $199,200 plus any interest in the approximately $1,000,000 in proceeds generated by drug conspiracy. Petitioner appealed his sentence, arguing that the District Court failed to state reasons for the extent of the downward departure. The Court of Appeals dismissed his appeal for lack of appellate jurisdiction. United States v. Hargrett, 156 F.3d 447 (2d Cir. 1998).
Petitioner now moves under 28 U.S.C. § 2255 to vacate and set aside his sentence upon his claims that:
(1) The indictment was defective in failing to allege drug quantity; and
(2) The indictment failed to cite the subsection of 21 U.S.C. § 848 which applied.
Both of the petitioners claims are based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Supreme Court held that any factor that increases the penalty for a crime beyond the prescribed statutory maximum is an element of the offence rather than a mere sentencing factor and as such must be submitted to the jury and proven beyond reasonable doubt. See 530 U.S. at 489-90. Petitioner claims that imposition of 216 months of imprisonment was due to factors that should have been proven as elements of the offense under the standard articulated in Apprendi. As a result he seeks reduction of his sentence and supervised release term under the new due process standard.
Respondent argues that petitioner's contentions are without merit because when defendant pleads guilty and admits the quantity of drugs for which he is accountable and understands statutory penalties to which he is subject, Apprendi does not affect his sentencing. See United States v. Harper, 246 F.3d 520, 530-531 (6th Cir. 2001) (when the defendant stipulates to drug quantity, "the principles articulated in Apprendi are not implicated."). According to many circuit courts, an unconditional guilty plea constitutes a waiver of the right to attack the indictment. See United States v. Silva, 247 F.3d 1051, 1060 (9th Cir. 2001). Furthermore, a defendant who pleads guilty also waives his right to a jury determination on all issues related to prosecution. See United States v. Rebmann, 226 F.3d 521, 524-25 (6th Cir. 2000). The courts have also held that the defendants admission of drug quantity satisfies even the "beyond a reasonable doubt" standard articulated in Apprendi. See 252 F.3d at 838.
The rule in the Second Circuit is the same — Apprendi is satisfied and does not limit the sentence which may be imposed when the defendant admits the quantity of drugs for which he is accountable. See Jimenez v. United States, 2001 WL 6999060, *7 (S.D.N.Y. 2001); United States v. Carmona, 2001 WL 761169, *2 (E.D.N.Y. 2001); Torres v. United States, 2001 WL 477253, *3 (E.D.N.Y. 2001).
In the present case, petitioner pled guilty to engaging in a continuing criminal enterprise, conspiracy to distribute narcotics, and possession with intent to distribute and distribution of controlled substances. Petitioner also admitted the penalties to which he was subject, including his understanding that "the jail sentence specified for Count I [engaging in a continuing criminal enterprise] is life imprisonment, pursuant to 21 U.S.C. § 848(b)," and that he was subject to that penalty. Since petitioner agreed to both the relevant facts and applicable penalty provisions at the time of his guilty plea, he may not now challenge the absence of such information in the indictment or the failure to present such information to a fact-finder for determination beyond reasonable doubt. See United States v. Duarte, 246 F.3d 56, 62 (1st Cir. 2001); United States v. Champion, 234 F.3d 106, 110 n. 3 (2d Cir. 2000).
Furthermore, petitioner may not rely on Apprendi-based argument considering it has been procedurally defaulted because it was not properly raised at trial or on direct appeal. Where a defendant seeks a collateral relief on a ground not raised on appeal, the defendant must show both cause excusing his procedural default and actual prejudice. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). The Supreme Court has held that futility of presenting an objection . . . cannot alone constitute cause." Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Even if the law is against a contention, a party must make the argument to preserve it for later consideration. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The court will find a cause for excusing procedural default only where defendant had been impeded in his legal defense or where defendant had no reasonable basis for making a claim. See Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).
In the present case, petitioner does not contend that any outside forces impeded his legal defense in 1996. Furthermore, considering that foundation of Apprendi-type argument was laid as long ago as 1970, petitioner may not maintain that he lacked any reasonable basis for the claim he now brings before this court. Apprendi-type arguments were not so novel as to be unavailable to the defendant before the Supreme Court decision. Other defendants have been advocating such arguments since the Sentencing Guidelines came into being, and the Court, in McMillan, addressed an argument along similar lines. See McMillan v Pennsylvania, 477 U.S. 79, 116 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In fact, the foundation of Apprendi reasoning has been laid as early as 1970 in In re Winship. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Moreover, before the Apprendi decision was announced, the petitioner could have relied upon the cases later cited in Supreme Court's Apprendi opinion to articulate an Apprendi-style argument for use in his direct appeal. Considering that petitioner does not claim that some outside force impeded his legal defense and considering that he failed to establish any cause for excusing his procedural default, the court need not consider the issue of prejudice and concludes that petitioner's default is not excusable. See Smith v. Murray, 477 U.S. at 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d434 (1986).
Petitioner may not assert an Apprendi-based argument not only because it is barred by the virtue of procedural default, but also because many circuits have already held that Apprendi does not retroactively apply to cases on collateral review. See McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 1001-02 (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). Furthermore, the Second Circuit has stated, "to date, the Supreme Court has not offered any guidance on whether Apprendi has retroactive application to cases on collateral review. And this court has not yet ventured where the Supreme Court has thus far feared to tread." Santana-Madera v. United States, 260 F.3d 133, 141 (2d Cir. 2001). In the present case, since petitioner attacks his sentence retroactively on collateral grounds, he may not rely on Apprendi to buttress his argument.
Furthermore, the exception to the bar against collateral review articulated in Teague v. Lane, is of no use to the petitioner. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the U.S. Supreme Court established that a new constitutional rule of criminal procedure will not constitute the basis for retroactive collateral review' unless it places an entire category of conduct beyond the reach of statutory prohibition, forbids the use of certain punishment as applied to a specified class of defendants, or is essential to the fundamental fairness of the proceeding. Id. Apprendi did not decriminalize a category of conduct or prohibit imprisonment of drug conspirators. Furthermore, the shift of determination of drug quantity or other facts permitting imposition of the sentence above statutory prescribed maximums from the judge to the jury is not necessary to fundamental fairness of criminal proceeding. 127 F.3d at 241. Therefore, petitioner's claim does not fall within Teague's exception and as such barred on the grounds of retrospective collateral review.
Even if the petitioner succeeded in convincing this Court that the standard articulated in Apprendi applied to his case, the petitioner would not be helped by Apprendi because his sentence is within the statutory limits. The Court of Appeals for the Second Circuit expressly stated that a sentence within the statutory maximum is unaffected by Apprendi. See United States v. Thomas, 247 F.3d 655, 673 (2d Cir. 2001)("drug type and quantity may be used to determine the appropriate sentence so long as the sentence imposed is not greater than the maximum penalty authorized"); United States v White, 240 F.3d 127, 136-37 (2d Cir. 2001)("we read [Apprendi] to apply only when a sentencing court's findings increase the penalty faced by the defendant above the statutory maximum for a given count, and not merely when they affect the length of a sentence within a statutory range.").
In the present case, petitioner pled guilty to engaging in a continuing criminal enterprise in violation of U.S.C. § 848. The maximum penalty for engaging in a continuing criminal enterprise is life imprisonment without regard to the aggravating factors set forth in 21 U.S.C. § 848(b). Petitioner was sentenced to 216 months imprisonment, considerably less than the statutory maximum. Considering that petitioner's sentence is within the statutory prescribed maxims, his sentence is unaffected by Apprendi and petitioner's contentions are without merit.
Petitioner's motion is not only unaffected by Apprendi decision, but it is also barred by the gatekeeping provision of 28 U.S.C. § 2255. Section 105 of Title I of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 ("AEDPA"), signed into law on April 24, 1996, created a one year period of limitation in which petitioner is entitled to file a Section 2255 motion. The date on which the judgment of conviction became final triggers the running of one year limitation. 28 U.S.C. § 2255.
In the present case, petitioner's conviction became final 90 days after the Court of Appeals affirmed his sentence on September 29, 1998. Petitioner's motion is dated June 22, 2001 and was filed in the clerk's office on June 25, 2001. Both dates are well after the deadline set by the gatekeeping provision of 28 U.S.C. § 2255. Considering that petitioner made his motion well after the deadline set by the gatekeeping provisions of 28 U.S.C. § 2255 the motion is barred.
Accordingly, for the reasons stated above, petitioner's § 2255 motion to vacate, set aside or correct his sentence of imprisonment is DENIED.