Opinion
Case Nos. 00-3366-SAC, 97-40005-03-SAC.
February 7, 2001.
MEMORANDUM AND ORDER
This case is before the court on the motion to vacate, set aside, or correct the sentence of the defendant, pursuant to 28 U.S.C. § 2255. The United States objects to the motion.
Timeliness of § 2255 Motion
The government first challenges Mr. Culp's motion, filed on October 6, 2000, as untimely. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which applies to Mr. Culp's motion, establishes a one-year time period from the date on which the judgment of conviction became final to file a motion to vacate, set aside, or correct sentences under § 2255. The government alleges that Mr. Culp's judgment of conviction became final on the date of his sentencing on August 28, 1998, and that his § 2255 motion, filed on October 6, 2000, was not filed within one year of that date.
The statute additionally states that other deadlines may apply, but the court finds it unnecessary to examine them in light of the court' s finding that the § 2255 motion is timely under the "final conviction" subsection.
The government ignores the fact the Mr. Culp filed a direct appeal, United States v. Culp, 188 F.3d 519, 1999 WL 590744 (10th Cir. 1999) (Table), then filed a petition for certiorari from the decision of the Tenth Circuit on direct appeal. Mr. Culp's petition for certiorari was denied on Feb 28, 2000. Culp v. United States, 528 U.S. 1195 (No. 99-7937).
The Tenth Circuit has previously held that the date the petition for writ of certiorari is denied after a direct appeal is the date that a judgment of conviction becomes final for purposes of § 2255 motions.
[A]bsent an actual suspension of an order denying certiorari by the [Supreme] Court or a Justice, a judgment of conviction is final for purposes of the one-year limitation period in § 2255 when the United States Supreme Court denies a petition for writ of certiorari after a direct appeal, regardless of whether a petition for rehearing from the denial of certiorari is filed.United States v. Willis, 202 F.3d 1279, 1280-81 (10th Cir. 2000); See United States v. Veatch, ___ F.3d ___, 2001 WL 46394, *2 (10th Cir. Jan. 19, 2001) (Table). As a result, Mr. Culp was required to file his § 2255 motion before February 28, 2001, one year after the Supreme Court denied certiorari review of his direct appeal. Accordingly, Mr. Culp's § 2255 motion is timely.
Evidence of Crack Cocaine
Mr. Culp alleges that insufficient evidence supports his conviction for possessing crack cocaine. This is an issue that should have been raised on direct appeal, and cannot now be challenged by collateral attack.
"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citation omitted). "Consequently, a defendant may not raise claims that were not presented on direct appeal unless he can show cause and prejudice resulting from the error. " United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citing Warner).United States v. Gooding, 1997 WL 833291 (D.Kan. Dec. 11, 1997). See United States v. Frady, 456 U.S. 152 (1982). "This procedural bar, sometimes described by reference to Frady for convenience . . . applies to a defendant's collateral attack on his sentence, just as it does to an attack on his conviction. (citations omitted). United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). Challenges to the sufficiency of evidence are particularly suited to being raised on direct appeal, and are not appropriately raised by way of collateral challenge. Tanner v. United States, 296 F.2d 218 (10th Cir. 1961).
Further, examination of the merits of Mr. Culp's challenge would not provide him relief. His allegation that the United States was obligated to prove that the "crack" in question contained baking soda (sodium bicarbonate) before the enhanced sentencing for crack cocaine could apply, has been repeatedly addressed and rejected by the Tenth Circuit. See e.g., United States v. Brooks, 161 F.3d 1240, 1248 (10th Cir. 1998); United States v. Collins, 189 F.3d 479, 1999 WL 641872, at *3 (10th Cir. Aug. 24, 1999) (Table). Additionally, the testimony at trial was unambiguous that the cocaine at issue was in fact crack cocaine. See e.g., Tr. Vol. IV, p. 1136-1171 (KBI criminalist testimony that exhibits contained cocaine base, describing the items variously as "chunky," and "what we regularly see as crack cocaine"); Tr. Vol. II, p. 655 et seq., (another KBI criminalist's testimony that Exh. 14 was "rock cocaine" or cocaine base.).
Reliance on Apprendi
Mr. Culp additionally contends that the indictment charged and the jury impermissibly returned a "general verdict," which failed to list the type and amount of drugs attributed to him, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).
The Court in Apprendi held that "[o]ther than the fact of a prior conviction, 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." 120 S.Ct. at 2362-63. In applying Apprendi, the Tenth Circuit has held a sentence is valid, even if the drug quantity is not proven to a jury, if the sentence does not exceed the statutory maximum sentence allowed under 21 U.S.C. § 841(b)(1)(C). United States v. Quarterman, ___ F.3d ___, 2000 WL 1862684 (10th Cir. Dec. 20, 2000) (Table). "Thus, where the sentence is less than the maximum sentence allowable by law, the sentence may stand. It follows the same principles apply where the facts supporting the enhancements were not proven at trial, but the sentence is less than the maximum sentence allowable by law." Id., n. 6.
Here, Mr. Culp was convicted under 21 U.S.C. § 846, with reference to § 841(a)(1), and was sentenced to 151 months, or 12.58 years. The maximum sentence for the offense of which Mr. Culp was convicted is no less than 240 months, or 20 years. See § 841(b)(1)(C). Because defendant's sentence was far less than the maximum allowable by law, the sentence is not subject to attack per Apprendi. Accordingly, this court does not reach the issue whether Apprendi is retroactively applicable on collateral review.
IT IS THEREFORE ORDERED THAT defendant's motion pursuant to 28 U.S.C. § 2255 is denied.