Opinion
Case No. 01-3273-RDR
October 12, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner, a prisoner confined at USP-Leavenworth, Kansas, proceeds pro se.
PROCEDURAL HISTORY
In 1996, petitioner was convicted in the United States District Court for the Eastern District of Louisiana of conspiracy to possess cocaine and attempted possession of cocaine with intent to distribute. His conviction was affirmed. United States v. Millsaps, et al., 157 F.3d 989 (5th Cir. 1998).
Petitioner filed a motion pursuant to 28 U.S.C. § 2255 with the sentencing court, raising ineffective assistance of counsel. The motion was denied. Petitioner then sought a certificate of appealability wherein he first asserted the claim that his enhanced sentence based upon the amount of drugs involved violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The certificate of appealability was denied. Petitioner next moved for reconsideration of his § 2255 motion. The motion for reconsideration was construed as a successive petition and denied because petitioner had not sought the requisite approval from the Fifth Circuit Court of Appeals. See 28 U.S.C. § 2255 ("A second or successive motion must be certified . . . by a panel of the appropriate court of appeals"). It does not appear that petitioner ever sought approval from the Fifth Circuit to file a successive petition.
In this action filed pursuant to 28 U.S.C. § 2241, petitioner challenges his conviction, relying upon Apprendi, by alleging (1) the indictment was defective because it did not charge the drug quantity involved in the drug-related crimes and (2) the jury instructions were defective because they did not instruct the jury as to an essential element of the crime, the amount of drugs involved.
DISCUSSION
The Supreme Court announced in Apprendi that with the exception of prior convictions, any fact that increases the penalty for a crime beyond the maximum statutory penalty must be submitted to the jury and proven beyond a reasonable doubt. 530 U.S. at 490. In drug-related crimes, Apprendi requires the quantity of drugs to be alleged in the indictment and proven to the jury beyond a reasonable doubt. United States v. Jones, 235 F.3d 1231 (10th Cir. 2000). Although petitioner presents a strong argument that his 540 month sentence would not withstand Apprendi scrutiny if presented on direct appeal, the circumstances under which § 2241 relief is available is extremely limited.
The amount of cocaine involved in the conspiracy was not included in the indictment, nor was the jury asked to find the amount involved beyond a reasonable doubt. Employing a preponderance of the evidence standard at sentencing, the trial court found the amount of cocaine involved to be 10 kg. United States v. Millsaps, 157 F.3d 989, 994(5th Cir. 1998). On direct appeal, petitioner did not challenge the indictment or the jury instructions. However, he did argue that because the conspirators were arrested with only enough cash to purchase less than 3 kg, the trial court's finding was in error. Id. Relying on the testimony of a government informant that the conspirators agreed to purchase 10 kg of cocaine in installments of 5 kg each, the Fifth Circuit upheld the district court's determination. Id. at 994-995.
Petitioner is attacking the validity of his conviction and sentence. Section 2241, however, is generally reserved to challenge the execution of a sentence rather than its validity. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). A petition under § 2241 "is not an additional, alternative, or supplemental remedy to 28 U.S.C. § 2255." Id. Section 2241 review of petitioner's federal conviction is precluded unless petitioner demonstrates the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255.
Petitioner argues that because his first § 2255 motion was filed and denied prior to Apprendi, and because his attempt to raise the Apprendi-based arguments have been denied by the sentencing court, relief under § 2255 is ineffective.
The Tenth Circuit has not clearly defined the circumstances under which § 2255 relief will be considered inadequate or ineffective. See Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (noting courts have found relief inadequate or ineffective "only in extremely limited circumstances") and Lewis v. Andrews, 117 F. Supp.2d 1052 (D.Kan. 2000) (same). However, the tests applied in sister circuits involve two basic features: retroactivity and actual innocence. Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir. 2001) (surveying the tests applied in the circuits). Because petitioner is not asserting that he is actually innocent of the crime and because he has failed to show that Apprendi is a rule which must be applied retroactively, his petition must be denied. Id.
Generally, new constitutional rules are not applied to criminal cases on collateral review. Teague v. Lane, 489 U.S. 288, 303 (1989). The general rule against retroactivity preserves both comity between federal and state courts and the interests of finality in criminal cases. Daniels v. United States, 254 F.3d 1180, 1193 (10th Cir. 2001). However, Apprendi could be applied on collateral review if the new rule is central to fundamental fairness and an accurate determination of innocence or guilt. Teague, 489 U.S. at 311-313. See also Daniels, 254 F.3d at 1198-1199(holding that a new rule of criminal procedure must meet the second exception of Teague in order to be applied retroactively). The second Teague exception is reserved for "watershed" rules which alter society's understanding of the basic procedural elements required for a fair conviction, such as the right to counsel. Teague, 489 U.S. at 312, citing Mackey v. United States, 401 U.S. 667, 693-94 (1971). The Supreme Court predicted that it was unlikely for such new rules to emerge and emphasized the narrow reach of this exception. Id. In fact, since the Teague decision, the Supreme Court has found no new rule that fits the "watershed" exception. United States v. Moss, 252 F.3d 993, 998 (8th Cir. 2001).
After Apprendi, juries, not judges, must decide any facts which increase the penalty for a crime beyond the statutory maximum and these facts must be found beyond a reasonable doubt. See Apprendi, 530 U.S. at 490. Having a judge determine the amount of cocaine under a preponderance of the evidence standard instead of a jury determining the amount under a reasonable doubt standard is simply not the egregious breach of fairness which would compel the retroactive application of Apprendi. See Moss, 252 F.3d at 998; see also Lambrix v. Singletary, 520 U.S. 518, 539-40 (1997) (the defendant's right not to have the jury consider certain aggravating circumstances is not a watershed rule).
The Teague exception was also meant to apply to those procedures whose absence would seriously diminish the likelihood of an accurate conviction. Teague, 489 U.S. at 313. Although it may be arguable whether petitioner was in possession of 3 or 5 kg of cocaine, the fact remains that he was guilty of an illegal act:
"[I]t seems arguable whether Apprendi increases the reliability of the guilt-innocence determination at all because the rule does not protect the innocent from conviction, it instead limits the sentencing exposure of those who have been validly convicted."
Moss, 252 F.3d at 999. The overwhelming majority of courts have agreed that Apprendi is not a rule appropriate for retroactive application. Id. at 991.
The constitutional principles announced in Apprendi do not render the conduct underlying petitioner's conviction no longer criminal nor should they be retroactively applied on collateral review. As such, petitioner has not shown that relief under § 2255 is inadequate or ineffective and the petition should be dismissed.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
A copy of this Report and Recommendation shall be mailed to petitioner. A copy of this Report and Recommendation shall also be mailed to the Office of the United States Attorney in Topeka, Kansas.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.