Opinion
EP-05-CA-0217-FM, EP-04-CR-1968-FM.
August 4, 2005
MEMORANDUM ORDER AND OPINION DISMISSING AMENDED MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Alonso Londonio-Paniagua's ("Londonio") Amended Motion to Vacate, Set Aside or Correct Sentence ("Amended Motion to Vacate") [Docket no. 19] pursuant to 28 U.S.C. § 2255, filed on June 6, 2005. After review, the Court finds that Londonio is clearly not entitled to relief regarding his claims. Accordingly, it concludes that his Amended Motion to Vacate should be denied and this matter summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will additionally deny Londonio a Certificate of Appealability.
I. BACKGROUND A. Criminal Cause No. EP-04-CR-1968-FM
On September 15, 2004, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Londonio, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government duly filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), due to Londonio's prior aggravated felony conviction. Londonio, deciding to forego trial, pleaded guilty to the Indictment on October 12, 2004. The Court accepted the plea on the same day and set the matter for sentencing. The Court entered Judgment on December 9, 2004, sentencing Londonio to a 46-month term of imprisonment and a 2-year term of non-reporting supervised release. It additionally ordered Londonio to pay a $100 special assessment. Londonio did not appeal.
B. Londonio's Motion to Vacate pursuant to 28 U.S.C. § 2255
Pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972), the Court has liberally read Londonio's Motion to Vacate. It understands him to raise the following two claims. First, he argues that the prior conviction used to increase his sentence is an element of a separate offense under 8 U.S.C. § 1326 and should have been alleged in the Indictment (Claim One). Because it was not included in the Indictment, he asserts, his sentence therefore exceeded the 2-year maximum term of imprisonment that may be imposed for that offense. He acknowledges that the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), foreclosed his argument, but asserts that the Supreme Court's later holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), has cast doubt on the continuing viability of Almendarez-Torres. Second, he challenges the constitutionality of the sentencing enhancement he received pursuant to 8 U.S.C. § 1326(b), in light of the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005) (" Booker") (Claim Two).
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. See Withrow v. Williams, 507 U.S. 680 (1993). It is also well settled that a collateral challenge may not take the place of a direct appeal. If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
III. DISCUSSION
The Fifth Circuit Court of Appeals has repeatedly rejected the argument Londonio now urges in Claim One, holding that Apprendi did not overrule Almendarez-Torres and that Almendarez-Torres remains controlling precedent. Claim Two similarly must fail because Booker did not overrule Almendarez-Torres, any more than than Apprendi did. Londonio is thus clearly not entitled to relief regarding either of his claims.
In addition, the rule announced in Booker is not retroactive to judgments, such as Londonio's, that were already final when the Supreme Court released that opinion. See Lloyd v. United States, No. 04-cv-03687, ___ F.3d ___, ___, 2005 WL 1155220, at *6, 2005 U.S. App. LEXIS 8699, at *19 (3rd Cir. May 17, 2005) (holding that Booker does not apply retroactively); Guzman v. United States, No. 03-2446, ___ F. 3d ___, ___, 2005 WL 803214, *1, 2005 U.S. App. LEXIS 5700, *3 (2d. Cir. Apr. 8, 2005) (holding that Booker is not retroactive and therefore does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
IV. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to tho se issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253 (c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Londonio's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims.
VII. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Alonso Londonio-Paniagua's Amended Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Alonso Londonio-Paniagua's Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket no. 19], filed on June 6, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Alonso Londonio-Paniagua is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order dismissing, with prejudice, Petitioner Alonso Londonio-Paniagua's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on June 6, 2005. The Court further denied Petitioner a Certificate of Appealability regarding his claim. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
Accordingly, IT IS ORDERED that Petitioner Alonso Londonio-Paniagua's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED AND THIS ACTION IS DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Petitioner is DENIED a CERTIFICATE OF APPEALABILITY. IT IS ALSO FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.
The Clerk shall close this case.