United States District Court, D. New Jersey
August 15, 2005.
ANTONIO LUZARDO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on a motion filed by
Petitioner Antonio Luzardo pursuant to 28 U.S.C. § 2255 seeking
to vacate, set aside or correct his sentence. The grounds for this motion are as follows: (1) Petitioner's sentence violated
the principle established in Apprendi v. New Jersey,
530 U.S. 466 (2000), because the quantity of drugs was not proven to the
jury beyond a reasonable doubt, (2) the sentence violates
Blakely v. Washington, 124 S.Ct. 2531 (2004), (3) the
Government failed to serve the 21 U.S.C. § 851 sentence
enhancement upon Petitioner, (4) the Government's filing of the
Enhanced Penalty was vindictive, and (5) ineffective assistance
On or about May 3, 1999 a single count indictment charged
Santiago Giraldo and Petitioner Antonio Luzardo with conspiring
to distribute and possessing with the intent to distribute in
excess of 100 grams of heroin in violation of
21 U.S.C. §§ 841(a)(1) and 846. The time frame of the conspiracy was from "at
least as early as December 1998 through at least on or about
April 28, 1999." See Indictment, Attached to Gov't. Opp'n, Ex.
A. During that same period of time, Petitioner was on parole for
a prior felony drug conviction. His parole term expired on March
9, 1999. See Presentence Investigation Report ("PSR"), at 17,
Attached to Gov't. Opp'n, Ex. B. On or about June 17, 1999, the
Government served notice on Petitioner that at sentencing it
would seek to prove that the quantity of heroin at issue exceeded
one kilogram and if proven, Petitioner would face the mandatory
minimum term of imprisonment of 10 years and a maximum term of imprisonment for life. See Notice Regarding Quantity, Attached
to Gov't. Opp'n, Ex. C. The Notice also advised Petitioner that
should he have a prior drug-related conviction, and should the
Government file an Enhanced Penalty Information pursuant to
21 U.S.C. § 851, the Petitioner's penalties after conviction would
then be increased to a mandatory minimum term of 20 years
imprisonment and a maximum term of life imprisonment. Id.
On June 22, 1999, before the commencement of trial and before a
jury was sworn, the Government announced to Petitioner and the
Court that it intended to file an Enhanced Penalty Information
pursuant to 21 U.S.C. §§ 851 and 841(b)(1)(A) based upon his
prior felony drug conviction. See Gov't. Opp'n at 2; see
also Trial Transcript, 26. The Court then gave Petitioner and
his counsel the opportunity to discuss, inter alia, the
effect of the proposed information and Petitioner's desire, if
any, to plead guilty. See Trial Transcript, 30-36. The
Government subsequently filed the Enhanced Penalty Information.
See June 22, 1999 Enhanced Penalty Information, Attached to
Gov't. Opp'n, Ex. E; see also Trial Transcript, 37. On June
22, 1999 the trial commenced in this District Court before the
Hon. Alfred J. Lechner, Jr., continuing through June 24, 1999
when a jury convicted both Petitioner and co-defendant Giraldo.
Thereafter, Petitioner wrote a series of letters to the
District Court waging various complaints against his trial attorney, Mr. Marc Wolin. The District Court, after appointing
new counsel, Mr. Lawrence Lustberg, conducted three post-trial,
pre-sentencing hearings with regard to his claim that Mr. Wolin
was ineffective. At that time, Petitioner also unsuccessfully
applied to have Mr. Lustberg removed. See July 19, 1999,
November 3, 1999 and November 18, 1999 Transcripts. On March 6,
2000, Judge Lechner ruled that Petitioner's trial counsel was not
ineffective. See March 6, 2000 Transcript. On June 1, 2000,
Judge Lechner determined that Petitioner was responsible for
1,452.7 grams of heroin and, pursuant to 21 U.S.C. §§ 851(a) and
841(b)(1)(A), sentenced him to the applicable statutory minimum
sentence of 240 months imprisonment. Id.
On June 9, 2000, Petitioner filed a Notice of Appeal with the
United States Court of Appeals for the Third Circuit raising the
following challenges to his conviction and sentence: (1) he was
improperly denied his constitutional right to testify in his own
defense; (2) the Government failed to present sufficient evidence
that he participated in a conspiracy to possess with intent to
distribute heroin; (3) the district court's sentence under §
841(b)(1)(A) violated the teachings of Apprendi, and (4) the
district court erred in enhancing his sentence for obstruction of
justice. See June 28, 2001 Opinion, Attached to Gov't. Opp'n,
Ex. J. The Third Circuit affirmed the Petitioner's conviction and
sentence on all grounds. The Third Circuit held, inter alia, that because Petitioner's sentence fell within
the statutory maximum, Apprendi did not apply. See June 28,
2000 Opinion, at 20. Luzardo petitioned the United States Supreme
Court for a writ of certiorari; however, this petition was denied
on June 28, 2002. On June 17, 2003, Petitioner filed the instant
habeas petition with this Court. On October 23, 2003, the
undersigned issued an Order which afforded Petitioner the
opportunity to withdraw his original pleading and file an all
inclusive Section 2255 Petition. Petitioner withdrew the June
17th motion and filed a new Section 2255 petition on November
23, 2003.*fn1 Thereafter, on July 16, 2004, Petitioner, in
reply to the Government's Opposition to his petition, attacked
his conviction on Blakely grounds.
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the
sentencing court to vacate, set aside or correct a sentence "upon
the ground that the sentence was imposed 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; see
also U.S. v. Rosendary, 152 F.Supp.2d 835, 838 (W.D.Pa.
2001). "Relief under this provision is generally available only in
exceptional circumstances to protect against a fundamental defect
which inherently results in a complete miscarriage of justice or
an omission inconsistent with the rudimentary demands of fair
procedure." Rosendary, at 838 (quoting U.S. v. Gordon,
979 F.Supp. 337, 339 (E.D.Pa. 1997); Hill v. U.S., 368 U.S. 424,
428 (1962)) (internal quotations omitted).
Title 28 U.S.C. § 2255 generally "may not be employed to
relitigate questions which were raised and considered on direct
appeal." U.S. v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993)
(quoting Barton v. U.S., 791 F.2d 265, 267 (2d Cir. 1986)).
Moreover, with regard to those claims which were never raised on
direct appeal, the Supreme Court's decision in U.S. v. Frady,
456 U.S. 152 (1982), reaffirmed the "cause and actual prejudice
standard" which was first enunciated in Davis v. U.S.,
411 U.S. 233 (1973). DeRewal, at 103. Under this standard, "a convicted
defendant must show both (1) `cause' excusing his . . .
procedural default, and (2) `actual prejudice' resulting from the
errors of which he complains." Id. (quoting Frady, at 168)).
It is well recognized, however, that a claim of ineffective
assistance of counsel should be raised under Section 2255 rather
than on direct appeal. DeRewal, at 103-04. In light of the
above, the majority of Petitioner's claims would be procedurally
barred; notwithstanding, this Court will address them on the
merits. A. Luzardo's Apprendi Claim
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the
Supreme Court articulated a new rule of constitutional law:
"Other 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." The Third Circuit decided that because
Luzardo's sentence of 240 months fell within the statutory
maximum, Apprendi did not apply. The Supreme Court's decisions
in Blakely and Booker cast doubt upon this conclusion;
however, the Court need not address it because Apprendi does
not apply retroactively to cases on collateral review. U.S. v.
Swinton, 333 F.3d 481, 482 (3d Cir. 2003).
B. Enhanced Penalty Information
Title 21 U.S.C. § 851(a)(1) states, inter alia,
No person who stands convicted of an offense under
this part shall be sentenced to increased punishment
by reason of one or more prior convictions, unless
before trial, or before entry of a plea of guilty,
the United States attorney files an information with
the court (and serves a copy of such information on
the person or counsel for the person) stating in
writing the previous convictions to be relied upon.
Petitioner claims that he "never received a copy or was served
with a copy of the filed § 851 information before trial, nor does
the Docket sheet mention at what time the information was filed,
and if a copy was served on the defendant." Pet. Br. at 10. However, Section 851(a)(1) does not require the United
States attorney to serve the defendant with a copy of the "filed"
information. It is undisputed that the Government served
Petitioner with the requisite enhancement documents and,
therefore, Petitioner's allegation is unfounded. See U.S. v.
Carvajal-Minota, 706 F.Supp. 726, 727 (N.D.Cal. 1989) (notice
can be accomplished simply by handing the enhancement information
to the defense attorney in court prior to trial).
C. Petitioner's Claim that the Government's Filing of the
Enhanced Penalty was Vindictive
Petitioner argues that he was threatened by the Government and
told that if "he went to trial an 851 enhancement which would
double his sentence would be filed with the Court." Pet. Reply at
8. Petitioner claims that because he exercised his right to go to
trial, his sentence was doubled. Id. Luzardo's prior felony
drug conviction afforded the Government the right to file an
Enhanced Penalty Information pursuant to 21 U.S.C. § 851. While
Luzardo was free to accept the Government's plea bargain up until
the day of trial, he declined to do so. Moreover, Luzardo was
provided a document which highlighted the Government's intent to
seek an enhanced sentence based upon Petitioner's prior felony
drug conviction. Luzardo has not directed this Court to any
evidence which would support his allegation that the Government's
actions were vindictive; therefore, this claim must fail. D. Applicability of Blakely v. Washington
In Blakely, the Supreme Court held that "other 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." 124 S.Ct. 2531,
2534 (2004). At the time Petitioner filed his reply, United
States v. Booker, 125 S.Ct. 738 (2005), had not been decided.
"Drawing upon its reasoning in Jones,*fn2 Apprendi and
Blakely, the Booker majority held that mandatory enhancement
of a sentence under the Guidelines, based on facts found by the
court alone, violates the Sixth Amendment." United States v.
Davis, 2005 WL 976941, *1 (3d Cir. April 28, 2005). To redress
this infirmity, the Supreme Court excised the provision of the
statute which made the application of the Sentencing Guidelines
The Booker decision "brought about sweeping changes in the
realm of federal sentencing." See Davis, at *1. However,
Booker is only applicable to cases on direct review and,
therefore, does not apply to Petitioner's claims Id.
E. Petitioner's Ineffective Assistance of Counsel Claim
Petitioner attempts to raise an ineffective assistance of
counsel claim in his reply papers; however, he alleges no facts
to substantiate such a claim. Accordingly, this Court finds such allegations to be meritless.
For the foregoing reasons, Petitioner's motion seeking to
vacate, set aside or correct his sentence is denied.