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DOE v. U.S.

August 23, 2000

JOHN DOE, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Wolin, District Judge.

    OPINION

This matter is opened before the Court upon the petition of John Doe*fn1 ("petitioner") for a writ of habeas corpus to vacate, set aside, or correct his sentence and to withdraw his guilty plea pursuant to 28 U.S.C. § 2255. Petitioner has also moved to amend his petition pursuant to Federal Rule of Civil Procedure 15. The petition has been decided upon the written submissions of the parties pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the motion to amend will be granted, but the petition will be denied.

BACKGROUND

Petitioner was arrested on June 3, 1996 after agreeing with an undercover customs agent to retrieve 48 kilograms of cocaine from a ship in Port Newark. Following his arrest, petitioner admitted to his involvement in another scheme to smuggle 125 kilograms of cocaine into the United States. Petitioner was unaware that this quantity of drugs had already been seized by United States Customs at the time of his arrest.

Petitioner was charged under 21 U.S.C. § 841, 846 for conspiring to distribute more than 5 kilograms of cocaine. Petitioner pled guilty as part of a cooperating plea agreement with the government. The parties stipulated that the defendant conspired to purchase 48 kilograms, seemingly ignoring the 125 kilogram quantity. In the presentence report, however, the probation officer recommended that the Court consider both drug deals, totaling 173 kilograms of cocaine, when sentencing petitioner. The Court accepted this recommendation and sentenced the defendant accordingly.

Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, accompanied by a supplemental memorandum of law, challenging the constitutionality of his proceedings. Pursuant to Federal Rule of Civil Procedure 15(a), petitioner has also filed a motion for leave to amend his petition along with the proposed amendment and a supplemental brief advancing his amended petition.

THE MOTION TO AMEND

A motion to amend a section 2255 pleading is governed by Federal Rule of Civil Procedure 15 and 28 U.S.C. § 2242 (permitting an application for a writ of habeas corpus to be amended using the rules applicable to civil actions); see also United States v. Duffus, 174 F.3d 333, 336 (3d Cir. 1999). Under Rule 15(a), a party may amend his petition twenty days after it has been served "only by leave of court or by written consent of the adverse, party." Fed.R.Civ.P. 15(a). The Court does not have unbridled discretion in its consideration of such a motion. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ("[O]utright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules."). On the contrary, "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Moreover, the Court must have a "substantial reason to deny leave to amend." Espey v. Wainwright, 734 F.2d 748, 750 (11th Cir. 1984) (quoting Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981)). "Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility." In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997); see also Foman, 371 U.S. at 182, 83 S.Ct. 227.

A motion to amend, where the amended claims are barred by the statute of limitations, can be denied for futility. See United States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000); see also Duffus, 174 F.3d at 338. In general, a section 2255 petition is subject to a limitations period of one year from the date on which the judgment of conviction becomes final, and petitioner's motion to amend, in the instant case, exceeds this time limit. However, petitioner's claims is not time-barred where is filed one year from "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." 28 U.S.C. § 2255 (2000). Petitioner argues, with the advent of Apprendi v. New Jersey, __U.S.__, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that his sentence is unconstitutional on Fifth and Sixth Amendment grounds. The Supreme Court has not yet decided how, if at all, the Apprendi decision impacts the Sentencing Guidelines. However, in her dissent, Justice O'Connor suggests that the decision may affect current, determinate-sentencing schemes. Id., at 2366. In light of the constitutional issues raised in Apprendi and Justice O'Connor's dissent, the Court will grant petitioner's motion for leave to amend and will consider the submitted amendment and supplemental brief as part of his petition.

DISCUSSION

A federal writ of habeas corpus shall issue where the petitioner is being held "in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. In the interest of justice, the Court will read this pro se petition liberally. See Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Todaro v. Bowman, 872 F.2d 43, 44 n. 1 (3d Cir. 1989); Hurd v. Romeo, 752 F.2d 68, 70 (3d Cir. 1985).

1. The Supreme Court's Holding in Apprendi v. New Jersey

Petitioner argues that the Court's determination of the applicable drug quantity, for sentencing purposes, was contrary to petitioner's rights to due process and trial by jury. It is well-settled practice that the Court decides what conduct is relevant (including the applicable quantity of drugs) when selecting the appropriate range under the United States Sentencing Guidelines. See U.S.S.G. § 1B1.3; Edwards v. United States, 523 U.S. 511, 513-14, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998) ("The Sentencing Guidelines instruct the judge in a case like this one to determine both the amount and the kind of `controlled substances' for which a defendant should be held accountable — and then to impose a sentence that varies depending upon the amount and kind."); United States v. Collado, 975 F.2d 985 (3d Cir. 1992); United States v. Mitchell, No. CRIM. 95-00252-03, 1999 WL 1129628 (E.D.Pa. Nov. 30, 1999). The Court determines the relevant conduct based upon a preponderance of the evidence. See United States v. Paulino, 996 F.2d 1541 (3d Cir. 1993); United States v. McDowell 888 F.2d 285 (3d Cir. 1989). According to petitioner, this practice cannot be reconciled with the Apprendi ruling.

In Apprendi, the Supreme Court overturned a sentencing scheme that allowed a state judge, by a preponderance of the evidence, to enhance a defendant's penalty beyond the prescribed statutory maximum sentence. Defendant was charged with second-degree possession of a firearm for an unlawful purpose. Upon conviction for this crime, the state statute provides for a sentence of five to ten years. Apprendi pled guilty. Then the state moved under a separate statute to enhance Apprendi's sentence under New Jersey's "hate crime" law, because the defendant had "acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." Apprendi, __U.S. at __, 120 S.Ct. at 2351 (quoting N.J.S.A. § 2C:44-3(e)).

Applying the hate-crime law, and reviewing the evidence under the preponderance of the evidence standard, the judge enhanced Apprendi's sentence to ten to twenty years of imprisonment. Id. at 2363. The enhanced sentence was similar to the sentence for first-degree unlawful possession, although petitioner had only been charged and convicted of the second-degree offense. Id. The Supreme Court overruled, concluding 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. at 2363-64.

Petitioner's case does not fall within the Apprendi ruling. First, petitioner was not sentenced beyond the statutory maximum. According to 21 U.S.C. § 841, where five kilograms or more of cocaine are attributed to the defendant, "such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life." Petitioner does not contest his participation in an offense involving at least five kilograms of cocaine, and his sentence of 151 months is clearly within the statutory boundaries.

Furthermore, petitioner was not sentenced under an additional statute, not referenced in the indictment and plea agreement, as the case was in Apprendi. In Apprendi, the defendant was given no notice that his admission of guilt on one count subjected him to the penalties of another statute. Petitioner, in the instant case, pled guilty to violating 21 U.S.C. § 841, 846 and was sentenced under these sections only. The government did not move the court to enhance petitioner's penalty under a collateral law; and the Court did not make any finding of guilt not already conceded by petitioner in the plea agreement. (See Government Exhibit B (indicating petitioner's admission of guilt under 21 U.S.C. § 841,846)).

Therefore, the Court's factual finding with regard to the specific drug quantity petitioner conspired to distribute was not the type of determination invalidated by the Supreme Court. The Court's finding merely aided it in fashioning an appropriate sentence within the limits set forth by 21 U.S.C. § 841. Moreover, the drug quantity information, along with other factors such as the defendant's prior criminal history, permitted the Court to set a sentence proportionate to the crime and to the defendant, by distinguishing petitioner's case from other defendants convicted of conspiring to distribute more than five kilograms of cocaine. The Apprendi decision does not prohibit the use of such information in sentencing.

In fact, the Apprendi decision explicitly reaffirmed the Supreme Court's decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in which the Court upheld the use of sentencing factors. See Apprendi, __U.S. at __ _ __, 120 S.Ct. at 2360-61. In McMillan, the Supreme Court examined a Pennsylvania statute authorizing a mandatory minimum sentence of five years for persons convicted of certain enumerated felonies, "if the sentencing judge finds, by a preponderance of the evidence, that the person `visibly possessed a firearm' during the commission of the offense." See McMillan, 477 U.S. at 81, 106 S.Ct. 2411.

In addition to the Apprendi Court's limitation of its holding not to reach sentencing schemes where the factors do not enhance the defendant's penalty above the statutory maximum, this Court takes note of the recent Supreme Court decision in Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998). In Edwards, the Court recognized the authority of the judge, under the Sentencing Guidelines, to make factual determinations for sentencing purposes. See id. Therefore, the Court finds that the Sentencing Guidelines, as they relate to petitioner's case, have not been rendered unconstitutional by Apprendi v. New Jersey.

2. Bribery Claim under 18 U.S.C. § 201 (c)(2)

Petitioner argues that the government violated 18 U.S.C. § 201 (c)(2) by its use of a confidential informant in its investigation.

Section 201(c) states: Whoever . . . directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witneess upon a trial, hearing, or other proceeding, before any court . . . shall be fined under this title or imprisoned for not more than two years, or both.

18 U.S.C. ยง 201 (c). In the instant case, the government offered the possibility of leniency in sentencing to an informant who assisted in an investigation that ultimately led to petitioner's arrest. Such an exchange, ...


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