Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
DOE v. U.S.
August 23, 2000
JOHN DOE, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Wolin, District Judge.
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.
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
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.
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
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.
The McMillan Court concluded that the state is not obliged to prove
sentencing factors beyond a reasonable doubt before a jury. See, 477
U.S. at 93, 106 S.Ct. 2411. The Court based its ruling, in part, on the
Court's holding in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53
(1977). In Patterson, the Supreme Court upheld the constitutionality "of
burdening the defendant in a New York State murder trial with proving the
affirmative defense of extreme disturbance as defined by New York law."
See id. at 198, 97 S.Ct. 2319. The Court explained that a state does not
need to "prove beyond a reasonable doubt every fact, the existence or
nonexistence of which it is willing to recognize as an exculpatory or
mitigating circumstance affecting the degree of culpability or the
severity of the punishment." See id. at 207, 97 S.Ct. 319.
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. § 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