Opinion
Criminal No. 01-380 (1) ADM/RLE.
October 25, 2004
David J. MacLaughlin, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff.
Bright Idada Falodun, pro se.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendant Bright Idada Falodun's ("Defendant") Motions to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255 [Docket No. 501] and for the Court to appoint Counsel to represent him in this matter [Docket No. 510]. Defendant argues that his Sixth Amendment right to a jury trial was violated when he received a 34 point sentencing enhancement rather than a 26 point sentencing enhancement. Defendant also submits Motions to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant [Docket No. 513], for Disclosure of 404 Evidence [Docket No. 514], for Discovery and Inspection [Docket No. 515], and to Suppress Statements, Admissions and Answers [Docket No. 516] (collectively "Discovery Motions"). For the reasons set forth below, Defendant's Motions are denied.
II. BACKGROUND
In the wake of Blakely v. Washington, 124 S. Ct. 2531 (2004), Defendant has filed a § 2255 motion in an attempt to mitigate his sentence. In December 2001, Defendant was charged in a multi-count indictment [Docket No. 1]. On June 6, 2002, a jury convicted Defendant of bank fraud, conspiracy to commit bank fraud, access device fraud, possession of five or more false identification documents, and possession of fifteen or more unauthorized access devices.The Defendant was sentenced on February 6, 2003. The United States Sentencing Guidelines ("USSG") mandated a base offense level of six for violations of 18 U.S.C. §§ 2, 371, 1029(a), 1029(a)(3) and 1344. Although the actual loss in the bank fraud and related conspiracies was $1,204,585.71, the reasonable foreseeable pecuniary harm intended to the various financial institutions totaled $3,846,385.82. Based on the reasonable foreseeable pecuniary harm and pursuant to USSG § 2B1.1(b)(1)(J), the Defendant's sentence was enhanced by eighteen levels. In addition, a two level enhancement was required because at least sixteen financial institutions and various retail businesses and service providers were defrauded and a two level enhancement because the Defendant was involved in the unauthorized trafficking of Access Devices. See USSG §§ 2B1.1(b)(2)(A)(1), 2B1.1(b)(9)(B). Furthermore, a two level enhancement was added after a finding that the fraudulent schemes involved "sophisticated means" and a four level enhancement was added after a finding that the Defendant was a "leader or organizer" of criminal activity involving five or more participants. See USSG §§ 2B1.1(b)(2)(8)(c), 3B1.1.(a). This Court found that all of the aforementioned factual findings were supported by a preponderance of the evidence and sentenced the Defendant to a term of 175 months as a level 34 Criminal History I offender.
Defendant directly appealed his conviction to the Eighth Circuit Court of Appeals [Docket No. 425], which affirmed his conviction and sentence on December 22, 2003. United States v. Falodun, 84 Fed. Appx. 707 (8th Cir. 2003). He then filed a petition for rehearing en banc, which was denied on January 26, 2004. The Eighth Circuit subsequently issued its mandate affirming his convictions and sentence on February 2, 2004. Defendant did not petition the United States Supreme Court for a writ of certiorari within the 90 day period specified in Supreme Court Rule 13.1.
Defendant now argues that his Sixth Amendment Constitutional right to a fair trial was violated, thereby depriving him of his right to Due Process, as required by the Fifth Amendment. Defendant relies on Blakely, in which the Supreme Court held that the application of a State of Washington sentencing guideline violated the Sixth Amendment when a pertinent sentencing finding was made by a judge rather than the jury.Blakely extended the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which found 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." Based on Blakely and Apprendi, Defendant contends there was no jury determination that the reasonable foreseeable pecuniary harm was $3,846,385.82, that the fraudulent scheme he was convicted of involved "sophisticated means," or that he was the leader or organizer of such a conspiracy. As a result, Defendant argues the jury verdict only supports a total offense level of 26, which carries a sentencing range of 63-78 months of imprisonment.
III. DISCUSSION
A. Motion to Vacate, Set Aside or Correct Sentence, Pursuant to 28 U.S.C. § 2255
Defendant's motion is brought pursuant to 28 U.S.C. § 2255. Section 2255 provides persons in federal custody a limited opportunity to collaterally attack the constitutionality, jurisdictional basis or legality of the sentence prescribed by the court. See United States v. Addonizio, 442 U.S. 178 (1979). Defendant's motion seeks to alter his sentence by claiming that Blakely's holding must also apply to the USSG. Therefore, according to Defendant, any guideline determinations made under the USSG by a judge rather than a jury would be unconstitutional. For the following reasons, Defendant's motion is denied.
As a threshold matter, it has not been established thatBlakely's rationale applies to the USSG. In Blakely, the Supreme Court only addressed the constitutionality of the State of Washington's sentencing guidelines. Although the USSG, like Washington's sentencing guidelines, allow for sentencing enhancements upon certain findings by a judge, the Supreme Court explicitly expressed no opinion as to whether Blakely's reasoning applied to the USSG. Blakely, 124 S. Ct. at 2538 n. 9.
The Supreme Court is currently considering whetherBlakely applies to the federal sentencing guidelines in United States v. Booker, No. 04-104 and United States v. Fanfan, No. 04-105. The Eighth Circuit also has not reached a conclusion on the matter. See United States v. Mooney, 2004 U.S. App. LEXIS 16302 (8th Cir. 2004) (granting en banc hearing and vacating the Court's July 23, 2004 opinion and judgment).
Even were Blakely's holding to apply to the USSG, this Court concludes that Blakely would not apply retroactively to matters on collateral review. Although the Supreme Court has stated that constitutional rules of criminal procedure should always be applied retroactively to cases on direct review, such rules are generally not retroactively applicable to cases on collateral review. See Teague v. Lane, 489 U.S. 28, 312 (1989). Only "watershed" procedural rules, defined as those "without which the likelihood of an accurate conviction is seriously diminished," apply to sentences that have become final after direct appeal. Id. at 313.
Defendant's conviction became final, and was therefore not on direct review, several weeks before the Blakely decision was issued. At latest, Defendant's conviction became final on May 3, 2004, when the 90 day limit for petitioning the Supreme Court for a writ of certiorari expired. Blakely was not issued until June 24, 2004.
Although the Supreme Court has not yet explicitly addressed whether Blakely is a watershed procedural rule, the Court considered a similar issue in Schriro v. Summerlin, 124 S. Ct. 2519 (2004). In Summerlin, the Court considered whether the rule announced in Ring v. Arizona, 536 U.S. 584, 602 (2002), applied retroactively to cases on collateral review. LikeBlakely, Ring applied Apprendi to a state's sentencing scheme. In Ring, the Supreme Court struck down an Arizona law permitting a judge, rather than a jury, to find the existence of certain aggravating factors warranting imposition of the death penalty. Id. at 609. The Ninth Circuit Court of Appeals subsequently concluded that Ring had announced a substantive rule or, in the alternative, a watershed procedural rule, and applied Ring retroactively to a case on collateral review.Summerlin v. Stewart, 341 F.3d 1082, 1121 (9th Cir. 2003).
In Summerlin, the Supreme Court rejected the Ninth Circuit's interpretation of Ring. The Court concluded that Ring was not a substantive rule because it did not alter the range of conduct subject to Arizona's death penalty. Summerlin, 124 S. Ct. at 2523. The Court then held that Ring did not announce a watershed procedural rule because it was implausible to believe that "judicial factfinding so seriously diminishes accuracy as to produce an impermissibly large risk of injustice." Id. at 2525 (emphasis in original) (internal quotation marks omitted). Therefore, Ring promulgated only a procedural rule that should not be applied retroactively to cases on collateral review. See id. at 2526. By the same reasoning,Apprendi also did not announce a watershed procedural rule.See United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001) (finding that the Apprendi "rule is not of watershed magnitude"). Consequently, Blakely's holding is procedural, rather than substantive, in nature and did not announce a watershed rule. See United States v. Stoltz, 325 F. Supp. 2d 982, 986-87 (D. Minn. 2004). As a result, Defendant cannot use Blakely as grounds for a § 2255 motion and his motion must be denied.
B. Request to Appoint Counsel
Defendant also requests that the Court appoint Mr. John S. Hughes as his attorney in this matter. It is well established that there is no right to counsel for federal prisoners collaterally challenging their convictions or sentences. See Pennsylvania v. Finley, 481 U.S. 551, 545-46 (1987); Pollard v. Delo, 28 F.3d 887, 889 (8th Cir. 1994) (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)). As a result, Defendant's motion to appoint counsel must be denied.
C. Discovery Motions
Finally, Defendant submitted Motions to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant, for Disclosure of 404 Evidence, for Discovery and Inspection and to Suppress Statements, Admissions and Answers. These motions are identical to those submitted by Defendant during the discovery process that preceded his trial before this Court [Docket Nos. 144-47]. Defendant subsequently appealed his conviction to the Eighth Circuit Court of Appeals. After reviewing the record, the Circuit Court affirmed the judgment of this Court. United States v. Falodun, 84 Fed. Appx. 707 (8th Cir. 2003). As a result, Defendant's discovery motions are not properly before this Court. In fact, they anticipate a proceeding that does not exist and for which there is no provision under federal law. Consequently, Defendant's discovery motions must be denied.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Motion to Vacate Sentencing Enhancement [Docket No. 501] is DENIED; and
2. Defendant's Motion to Appoint Counsel to represent him in this matter [Docket No. 510] is DENIED.
3. Defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant [Docket No. 513] is DENIED.
4. Defendant's Motion for Disclosure of 404 Evidence [Docket No. 514] is DENIED.
5. Defendant's Motion for Discovery and Inspection [Docket No. 515] is DENIED.
6. Defendant's Motion to Suppress Statements, Admissions and Answers [Docket No. 516] is DENIED.