Opinion
Case No. 01-3462-DES, 94-10058-01
June 11, 2002
MEMORANDUM AND ORDER
This matter is before the court on defendant's motion brought pursuant to 28 U.S. § 2255 (Doc. 195) and defendant's "Motion to Supplement or the Court Take Appropriate Notice and Action" (Doc. 196). In his § 2255 motion, defendant asserts his sentence should be vacated, set aside or corrected because he was sentenced outside the applicable guideline range, his criminal history category was calculated in error, and because the Supreme Court case, Apprendi v. New Jersey, 530 U.S. 466 (2000), renders his convictions unconstitutional. In his motion to supplement, defendant contends that he should have been sentenced under 21 U.S.C. § 841(b)(1)(D) as opposed to 21 U.S.C. § 841(a)(1).
In Apprendi, the Supreme Court held that "any fact increasing the penalty for a crime beyond the statutory maximum [other than prior convictions], must be submitted to the jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
After review, the court finds the record in this case conclusively shows defendant is entitled to no relief. The government, therefore, will not be required to respond. For the following reasons, defendant's motions shall be denied.
I. BACKGROUND
On July 13, 1994, a federal grand jury returned a five-count superseding indictment against defendant. The case proceeded to trial and a jury convicted defendant of one count of possession with intent to distribute methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1); one count of possession with intent to distribute marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1); one count of using or carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and one count of interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2313. Defendant received a sentence totaling 248 months.
Defendant appealed his convictions and sentence to the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit vacated defendant's conviction for using or carrying a firearm in relation to a drug trafficking crime. United States v. Miller, 84 F.3d 1244 (10th Cir. 1996), cert. denied, 519 U.S. 985 (1996). Defendant's case was remanded back to the district court where he was re-sentenced. In re-sentencing defendant, the court found that it should apply a two level enhancement under the Sentencing Guidelines based on defendant's possession of a firearm. Defendant's new sentence totaled 235 months.
Defendant again appealed to the Tenth Circuit. The Tenth Circuit affirmed the court's decision. United States v. Hicks, 146 F.3d 1198 (10th Cir. 1998). The United States Supreme Court denied review on October 18, 1998. On November 27, 2001, petitioner filed his motion pursuant to § 2255. On May 20, 2002, defendant filed a motion to supplement.
II. DISCUSSION
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2255 to include a one-year time limit for federal prisoners seeking to file a motion to vacate, set aside or correct a sentence. According to the statute, the one year time period begins to run from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255.
Defendant's conviction became final on October 18, 1998, when the Supreme Court denied defendant's petition for writ of certiorari. See United States v. Willis, 202 F.3d 1279, 1280 (10th Cir. 2000) (holding that for purposes of the one year limitation contained in § 2255, a conviction becomes final when the United States Supreme Court denies a petition for writ of certiorari after a direct appeal). Thus, for defendant's § 2255 to be considered timely, the motion must have been made by October 18, 1999, one year after his conviction became final. Defendant's § 2255 motion was filed on November 27, 2001, well outside the time frame set forth in the statute.
To the extent defendant may argue that his Apprendi claims are still viable for review, the court notes that even if Apprendi applied retroactively on collateral review, which by most accounts it does not, defendant's § 2255 was filed more than one year from the date Apprendi was decided by the Supreme Court. See United States v. Hollis, 191 F. Supp.2d 1257, 1264 n. 2 (D.Kan. 2002) (noting that while the Tenth Circuit has not decided whether Apprendi applies retroactively on initial § 2255 motions, the vast majority of courts who have decided the issue found that Apprendi does not apply retroactively). Thus, defendant's motion was not filed one year from the "date on which the right asserted was initially recognized by the Supreme Court" and the newly recognized right has not been "made retroactively applicable to cases on collateral review. . . ." See 28 U.S.C. § 2255.
The AEDPA period of limitation is not jurisdictional and "may be subject to equitable tolling" in extraordinary circumstances. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). See also Willis, 202 F.3d at 1281 (applying the equitable tolling reasoning of Miller to § 2255 petitions). Defendant has not alleged circumstances warranting equitable tolling. The court finds that equitable tolling is inapplicable and defendant's habeas application is time-barred. Therefore, defendant's motion made pursuant to § 2255 shall be denied.
Also before the court is defendant's "Motion to Supplement or the Court Take Appropriate Notice and Action" filed on May 20, 2002. The court construes this motion as a motion to amend defendant's original § 2255 motion. The motion seeks ground for relief outside those enunciated in defendant's original § 2255 motion. Like defendant's § 2255 motion, the motion to amend was also filed outside of the one-year limitation found in § 2255. Once again, defendant was required to file a § 2255 motion no later than October 18, 1999. Because the motion to amend was filed after this date, it is untimely.
Although not argued by defendant, the Tenth Circuit has held that the relation back doctrine embodied in Rule 15(c) of the Federal Rules of Civil Procedure may apply to untimely requests to amend § 2255 motions. United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000). However, Rule 15(c) will only operate to save an untimely amendment if (1) the original motion was timely and (2) the proposed amendment does not seek to add a new claim or insert a new theory into the case. Id. (citing United States v. Thomas, 221 F.3d 430, 431 (3d Cir. 2000)). As stated above, defendant's original motion was untimely and the proposed amendment presents a new claim or theory. As such, Rule 15(c) is inapplicable.
The court is left with an untimely motion, so, ordinarily, the court would deny the motion. In the context of § 2255 motions, however, the court is without authority to consider the motion. The court must interpret the untimely motion as a "second or successive" § 2255 motion and transfer the pleading to the Tenth Circuit. Id. at 503. See also 28 U.S.C. § 2255 ("[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals").
IT IS THEREFORE BY THIS COURT ORDERED that the defendant's motion brought pursuant to § 2255 (Doc. 195) is denied.
IT IS FURTHER ORDERED BY THIS COURT that defendant's Motion to Supplement or the Court Take Appropriate Notice and Action (Doc. 196) is transferred to the United States Court of Appeals for the Tenth Circuit. The clerk of the court shall mail the motion and a copy of this order to the United States Court of Appeals for the Tenth Circuit.