Opinion
01 Cv. 2411 (RPP), 94 Cr. 839 (RPP)
April 9, 2002
OPINION AND ORDER
Petitioner Rafael Peralta ("Petitioner") filed a petition pro se for a writ of error coram nobis pursuant to 28 U.S.C. § 1651 and a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the petition is denied.
BACKGROUND
Pursuant to a jury trial ending April 14, 1995, Petitioner was convicted of conspiring to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846, distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. § 812, 841(a), and 841(b), and committing a felony while on release in violation of 18 U.S.C. § 3147. On February 29, 1996, the Court sentenced Petitioner to seventy months imprisonment for the violations of 21 U.S.C. § 846, 841(a), and 841(b), to be followed by twenty-seven months imprisonment for the violation of 18 U.S.C. § 3147. United States v. Peralta, No. 94 Cr. 839-01 (RPP) (S.D.N.Y. Mar. 1, 1996).
Following conviction, Petitioner filed an appeal raising two issues. First, Petitioner contended that the Court erred in denying his request for a multiple conspiracy jury instruction. Second, Petitioner contended that the Court erred in enhancing his sentence pursuant to United States Sentencing Guidelines § 2J1.7. Id. The Second Circuit affirmed Petitioner's conviction on May 19, 1997. United States v. Vasquez, 113 F.3d 383, 391 (2d Cir. 1997). The United States Supreme Court denied his petition for certiorari. Peralta v. United States, 522 U.S. 900 (1997).
On October 10, 2000, Petitioner filed a petition ("Petition") for a writ of error coram nobis pursuant to 28 U.S.C. § 1651 and a writ of habeas corpus pursuant to 28 U.S.C. § 2241 with the Clerk of the Court for the United States District Court in the Western District of Pennsylvania. Petitioner argued that his sentence was unconstitutional in light of the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the sentencing provisions of 21 U.S.C. § 841 are unconstitutional under Apprendi. On October 17, 2000, the Pro Se Office of the United States District Court for the Southern District of New York received the transferred petition. On March 21, 2001, Chief Judge Mukasey ordered that the proper jurisdictional basis for Petitioner's claim was 28 U.S.C. § 2255, offered Petitioner sixty days to withdraw the petition or have it characterized as a § 2255 motion, and, if the petition was not withdrawn within sixty days, ordered Petitioner to show cause by affirmation why the one-year period of limitations governing § 2255 claims should not bar the instant petition. Peralta v. Shearin, No. CV 01-2411 p. 2-3 (MBM) (S.D.N.Y. March 21, 2001) (citingAdams v. United States, 155 F.3d 582, 584 (2d Cir. 1998)).
On March 31, 2001, Petitioner responded ("Response") to Chief Judge Mukasey's order by arguing that the proper jurisdictional basis for the petition was actually 28 U.S.C. § 2241, rather than 28 U.S.C. § 2255, and that Apprendi applied retroactively on collateral review of his sentence since he filed this petition within one year after the Supreme Court handed down that decision in June of 2000.
In his response to Chief Judge Mukasey's order, Petitioner alleges that the Second Circuit instructed that attacks based on Apprendi be submitted pursuant to § 2241 rather than § 2255 in Harris v. Nash, 229 F.3d 1135 (2d Cir. 2000). Response at 1. Harris merely holds that claims under Apprendi in that case are not prejudiced by the court's order. No language exists in Harris instructing that attacks based onApprendi be brought under § 2241 rather than § 2255. The current petition is properly brought under § 2255.
The case was reassigned to this Judge, and in June of 2001, the United States Attorney for the Southern District of New York was ordered to file an answer along with relevant trial and post-conviction records and transcripts. On October 10, 2001, the Government submitted a memorandum in opposition to the petition. To date, Petitioner has not submitted any reply.
DISCUSSION
Petitioner initially seeks relief under The All Writs Act, or 28 U.S.C. § 1651, which authorizes federal courts to grant the common law writ of error coram nobis. See Fleming v. United States, 146 F.3d 88, 89 (2d Cir. 1998) (citing United States v. Morgan, 346 U.S. 502 (1954)). "Coram nobis is essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction and, therefore, cannot pursue direct review of collateral relief by means of a writ of habeas corpus." Id. at 89-90. Here, Petitioner was in federal custody at the time he filed this petition, was seeking collateral relief, and, therefore, this petition is not properly brought under 28 U.S.C. § 1651.
Petitioner also applies for a writ of habeas corpus under 28 U.S.C. § 2241 (c)(3). Since Petitioner did not withdraw his petition pursuant to Judge Mukasey's order of March 21, 2001, this petition is converted to a 28 U.S.C. § 2255 action challenging the validity of the sentence imposed.
Section 2255 provides that:
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the grounds that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence.28 U.S.C. § 2255.
Petitioner challenges his custodial sentence imposed pursuant to convictions of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. § 812, 841(a), and 841(b). 21 U.S.C. § 841 (b) prescribes the penalties for violations of 21 U.S.C. § 841 (a) based on the type and amount of controlled substance the defendant was found to have distributed or possessed with intent to distribute. Subsection (1)(C) of § 841(b) states that "in the case of a controlled substance in schedule I or II [of 21 U.S.C. § 812], . . . a person shall be sentenced to a term of imprisonment of not more than 20 years." 21 U.S.C. § 841 (b)(1)(C). Heroin is a controlled substance in schedule I (b) of 21 U.S.C. § 812.
At trial, the Court instructed the jury that the government did not have to prove the quantity of heroin possessed by the defendant, but did have to prove beyond a reasonable doubt that the defendant possessed heroin with intent to distribute it. Petitioner argues that the Court's determination at sentencing that the quantity of heroin involved was 125 grams violates the rule of law established in Apprendi.
Petitioner filed this motion seeking relief from the sentence imposed on October 10, 2000, more than one year after his conviction became final. Generally, § 2255 relief cannot be granted if the petition is filed more than one year after the petitioner's conviction becomes final. 28 U.S.C. § 2255 (1). Petitioner argues, however, that based on 28 U.S.C. § 2255 (3), the period of limitations would run from the date of the Apprendi decision.
Under § 2255(3), the one-year period of limitations "shall run from . . . the date on which the right asserted was initially recognized by the Supreme Court, . . . and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255 (3). Under Tyler v. Cain, 533 U.S. 656 (2001), "the Supreme Court is the only entity that can `make' a new rule retroactive." Id. at 663. In Tyler the Supreme Court examined the requirement that new rules of law not previously available must be made retroactive by the Supreme Court in order to allow subsequent habeas petitions attacking state convictions under 28 U.S.C. § 2244 (b)(2)(A), when the attacks are based on these new rules. The language from § 2244(b)(2)(A) examined in Tyler, "a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court," is substantively equivalent and nearly identical to the language from § 2255(3), supra. (emphasis added). Both statutes require the Supreme Court to make a rule retroactively applicable to cases on collateral review before petitioners may enlist that rule as grounds for relief. The Supreme Court held that, in order to make a rule retroactively applicable and satisfy the statutory requirements, the Supreme Court must do so "through a holding." Tyler, 533 U.S. at 663. The Supreme Court has not spoken on the retroactive applicability of Apprendi. In Forbes v. United States, 262 F.3d 143, 145 (2d Cir. 2001), the Second Circuit, following Tyler, declared that "it is clear that Apprendi is not a new rule of constitutional law which has been made retroactive to cases on collateral review by the Supreme Court."
Even if Apprendi were retroactively applicable to cases on collateral review, it would be inapplicable to the facts of this case. In Apprendi the defendant was charged with second-degree possession of a firearm for an unlawful purpose. 530 U.S. at 470. Upon conviction, the government moved to enhance the defendant's sentence based on a New Jersey hate crime statute. Id. at 471. Based on a finding by a preponderance of the evidence that the defendant had violated the hate crime statute, the trial judge increased the defendant's sentence beyond the statutory maximum for the possession of a firearm charge. Id. at 490. The Supreme Court overruled the state court decision, holding that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id.
In a number of cases, the Second Circuit has consistently heldApprendi inapplicable to cases where the trial court's determination of fact does not increase the sentence beyond the statutory maximum for the crime of which the defendant was convicted. See United States v. Norris, 281 F.3d 357 (2d Cir. 2002); United States v. Thomas, 274 F.3d 655, 663-664 (2d Cir. 2001); United States v. White, 240 F.3d 127, 135-136 (2d Cir. 2001); United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001). In United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001). the Second Circuit held that "Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count."
Petitioner's convictions under 21 U.S.C. § 846 (conspiracy to distribute heroin) and 21 U.S.C. § 812, 841(a), and 841(b) (distributing and possessing with intent to distribute heroin) carry sentences of not more than twenty years, regardless of the quantity of heroin involved. 21 U.S.C. § 841 (b)(1)(C). On these counts, Petitioner was sentenced to 70 months (just under six years). Petitioner's conviction for violating 18 U.S.C. § 3147 carries a maximum sentence of ten years. On this count, petitioner was sentenced to 27 months (just over two years). Because Petitioner's sentence never rose above the statutory maximum for any count or on all counts together,Apprendi cannot apply to this case, and the period of limitations expired in March of 1997, one-year after the Court entered final judgment. Indeed, even if Apprendi was determined by the Supreme Court to have retroactive applicability, this petition would not lie. The current petition is time barred under 28 U.S.C. § 2255 (1).
CONCLUSION
For the foregoing reasons, the petition is hereby denied.
IT IS SO ORDERED.