Opinion
97 Civ. 2833 (RPP), 90 Cr. 863 (RPP)
December 2, 2003
OPINION AND ORDER
Petitioner Leroy A. Moses, also known as Jawad Amir Musa, filed a motion for reconsideration of this Court's May 27, 2003 denial of Petitioner's application for a certificate of appealability of this Court's denial on September 9, 2002 of Petitioner's Rule 60 motion. Petitioner basis his motion for reconsideration on Miller-El v. Cottrell 123 S.Ct. 1029 (2003).
On July 29, 2003, the Government opposed Petitioner's motion for reconsideration.
This Court has conducted "an overview of the claims in the habeas corpus petition and a general assessment of their merits," and concluded that the "resolution was debatable among jurists of reason."Miller-El v. Cottrell 123 S.Ct. at 1039.
In this case, the judge imposed a sentence above the statutory maximum of twenty years for conspiracy to possess heroin with intent to distribute, 21 U.S.C. § 846, based on the Court's finding, after a sentencing hearing held on December 11, 1992, pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), that a preponderance of the evidence showed that the amount of heroin which the members of the conspiracy, including petitioner, intended to purchase from the government's special employee was one kilogram. Due to the judge's finding, the Defendant, in view of his criminal history, was subject to a mandatory sentence of life imprisonment, a sentence higher than the maximum sentence for the crime charged in the indictment.
In Apprendi v. New Jersey, the Supreme Court stated that the defendant was deprived of liberty without due process of law (violating the Fourteenth Amendment of the United States Constitution) and his right to trial by an impartial jury (violating the Sixth Amendment of the United States Constitution) because the judge imposed a sentence above the statutory maximum based on his finding that the crime was racially biased. Apprendi v. New Jersey, 120 S.Ct. 2398, 2355 (2000). The Apprendi Court stated that its decision was based on (1)United States v. Gaudin, 515 U.S. 506, 522-23 (1995) (holding that a criminal defendant is entitled to "have a jury determine beyond a reasonable doubt his guilt of every element of the crime with which he is charged"); (2) In re Winship, 397 U.S. 358, 364 (1970)("[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."); and (3) foreshadowed by Jones v. United States, 526 U.S. 227, 243 n. 6 (1999) ("[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."). Apprendi, 120 S.Ct. at 2355-56.
Relying on Story's Commentaries on the Constitution of the United States and Blackstone's Commentaries, the Supreme Court held that the principles of Apprendi related back to the days when the Constitution was adopted. Apprendi, 120 S.Ct. at 2356. Furthermore, the Court pointed out that in previous cases, this Court did not "budge from the position that (1) constitutional limits exist to States' authority to define away facts necessary to constitute a criminal offense and (2) that a state scheme that keeps from the jury facts that expose defendants to greater or additional punishment may raise serious constitutional concern."Apprendi, 120 S.Ct. at 2350 (citation and internal quotations omitted).
Here, reasonable judges could find that a federal trial that did not allow the jury to determine the amount of heroin that was the object of the conspiracy raised such serious constitutional concern as to be applied or to merit retroactive effect. See Miller-El, 123 So. Ct. at 1040 ("Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail").
In view of the language used in Apprendi, reasonable judges could debate whether the ruling in Apprendi involved not a procedural change of constitutional dimensions, but a substantive statement of a constitutional principle that should be applied retroactively or at least should be applied retroactively post In re Winship (the right to have every element of the offense proved beyond a reasonable doubt). Apprendi, 120 S.Ct. at 2355 n. 3. But see. Coleman v. United States, 329 F.3d 77 (2d Cir. 2003) (holding that Apprendi is not retroactive with respect to an initial 28 U.S.C. § 2255 motion for habeas review).
Accordingly, the Court reconsiders its denial of Petitioner's motion for a certificate of appealability. The application for a certificate of appealability is granted.
IT IS SO ORDERED