Beamon v. U.S.

• Citation: 189 F.Supp.2d 350
• Decision Date: 07 February 2002
• Docket Number: No. CR. 499CR4.,No. CIV.A. 401CV67.,CIV.A. 401CV67.,CR. 499CR4.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Parties: Karl Earl BEAMON, Petitioner v. UNITED STATES of America, Respondent.

189 F.Supp.2d 350

Karl Earl BEAMON, Petitioner v. UNITED STATES of America, Respondent.

No. CIV.A. 401CV67.

No. CR. 499CR4.

United States District Court, E.D. Virginia, Newport News Division.

February 7, 2002.

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Karl Earl Beamon, Pro Se, FCI Edgefield, Edgefield, SC, for Petitioner.

James A. Metcalfe, Esquire, United States Attorney's Office, Norfolk, for Respondent.

ORDER

FRIEDMAN, District Judge.

Currently before the court is Karl Earl Beamon's habeas corpus petition to have his sentence vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255. Mr. Beamon (hereinafter "petitioner") argues that his convictions and sentences under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and 21 U.S.C. § 841(a)(1) are unconstitutional for the following six reasons: (1) his rights under the Fifth Amendment to due process of law and under the Sixth Amendment to notice and jury trial were violated based on the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) the evidence was insufficient to support a conviction under 18 U.S.C. § 922(g) in light of the Supreme Court's holdings in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Apprendi, supra.; (3) ineffective assistance of counsel based on counsel's failure to challenge his convictions under 18 U.S.C. §§ 922(g) and 924(c); (4) ineffective assistance of counsel because counsel failed to object to the two additional criminal history points added pursuant to U.S.S.G. §§ 4A1 .1(d) and 4A1.2; (5) ineffective assistance of counsel for counsel's failure to object to an improper jury instruction regarding his 18 U .S.C. § 924(c) count; and (6) ineffective assistance of counsel based on counsel's failure to move the court to dismiss both 18 U.S.C. §§ 922(g) and 924(c) charges because the evidence produced at trial was not consistent with that in the indictment. Finally, the petitioner requests an evidentiary hearing. Upon review of the records and files in this case, as well as this court's recollection of the trial and sentencing proceedings involving the petitioner, the petition is DENIED and DISMISSED in its entirety.

I. Factual and Procedural Background

On April 22, 1999, after a two-day jury trial, the jury found the petitioner guilty on all four counts in the pending indictment. Specifically, the jury found the petitioner guilty of (1) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2) felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1); (3) possession of 5 grams or more of cocaine base ("crack") with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and (4) carrying or using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). On August 2, 1999, the court sentenced the petitioner to a term of imprisonment of 115 months for count one, 135 months for count three, to run concurrently, and 60 months for count four, to run consecutively, for a total of 195 months.¹ The petitioner filed a notice of appeal and submitted the following three issues to the Fourth Circuit for review: (1) whether the district judge erred in denying the appellant's motion for judgment of acquittal as the facts were insufficient to sustain a conviction; (2) whether the district court erred in denying the appellant's request for a jury instruction on a lesser included offense of simple possession of cocaine; and (3) whether the district court had sufficient and reliable evidence on which to base the sentence of the appellant. The petitioner's convictions and sentences were affirmed by the Fourth Circuit Court of Appeals on March 6, 2000. The petitioner's petition for writ of certiorari in the Supreme Court was denied on October 2, 2000. On June 28, 2001, the petitioner filed the instant motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On July 11, 2001, this court ordered the government to respond to the petition within sixty (60) days. Accordingly, the government filed its response on September 10, 2001. After being given an extension of time, the petitioner filed a reply on September 28, 2001.

II. Discussion

A petitioner collaterally attacking his sentence or conviction bears the burden of proving that his sentence or conviction was imposed in violation of the United States Constitution or laws, that the court was without jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack. See 28 U.S.C. § 2255. An evidentiary hearing is not required in this case because the case file, along with the court's recollection of the case, are adequate to dispose of the matter. See Rule 8, Rules Governing § 2255 Proceedings; Blackledge v. Allison, 431 U.S. 63, 74, n. 4, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214 (1996), made substantial changes to Section 2255. The AEDPA includes stringent limitations on the filing of successive Section 2255 petitions and assigns a "gatekeeping" function for the screening of habeas petitions. See Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (addressing the AEDPA's impact on the Supreme Court's original jurisdiction). Additionally, the AEDPA implements a one-year limitations period applicable to the filing of Section 2255 petitions. The instant petition is not successive, and was filed within the one-year limitations period. Therefore, we turn to the merits of the petition.

A. Claim 1

In his first claim, the petitioner argues that his rights under the Fifth Amendment to due process of law and under the Sixth Amendment to notice and jury trial were violated based on the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, he alleges that because count three of the indictment, charging him with violating 21 U.S.C. § 841(a)(1), did not contain the applicable penalty provision under section 841(b), that his conviction and sentence violates the principle enunciated in Apprendi. Without remarking as to whether the Supreme Court's holding in Apprendi is applicable to the facts of the instant case, the Fourth Circuit has held that any rule of law recognized by Apprendi does not apply retroactively to cases on collateral review. See United States v. Sanders, 247 F.3d 139, 146 (4th Cir.2001).² "[A] new rule is not `made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 2482, 150 L.Ed.2d 632 (2001), quoting 28 U.S.C. § 2255. The Supreme Court did not explicitly state in the Apprendi decision that its holding was retroactive. Nor has the Supreme Court, to date, applied the rule in Apprendi in a collateral proceeding.³ Thus, any rule of law newly recognized by the Apprendi decision has not been made retroactively applicable to cases on collateral review. See Sanders, 247 F.3d at 146; see also, In re Tatum, 233 F.3d 857, 859 (5th Cir.2000) (denying motion to file successive Section 2255 petition because Apprendi neither involved collateral proceedings nor has been made by the Supreme Court retroactively applicable to cases on collateral review); Rodgers v. United States, 229 F.3d 704 (8th Cir.2000) (same); Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000) (same); In re Joshua, 224 F.3d 1281 (11th Cir.2000) (same); Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir.2000) (same).

Furthermore, even if the petitioner's Apprendi claim were not procedurally defaulted, the petitioner's sentence imposed by the court does not offend the principles of Apprendi. "Apprendi holds that so long as the sentence is within the statutory range, a judge can increase a defendant's sentence on the basis of certain facts which need not be proven to a jury beyond a reasonable doubt." Sanders, 247 F.3d at 150. The petitioner argues that because the indictment failed to list the penalty provision under 21 U.S.C. § 841(b), that he must be sentenced under the section with the lowest possible penalty, specifically section 841(b)(1)(D). In support of this proposition, the petitioner cites a recent Fourth Circuit case which held that the district court exceeded its jurisdiction by sentencing the defendant to a section of the code that was not charged by the grand jury. See United States v. Cotton, 261 F.3d 397, 404-05 (4th Cir. 2001). However, the defendant in Cotton was indicted merely for a "detectable amount of cocaine base," and the court sentenced him under the harshest penalty provision without submitting drug amounts to the jury to be proven beyond a reasonable doubt. Id. By contrast, in this case the petitioner was charged with possession with intent to distribute 5 grams or more of cocaine base or crack in count three of the indictment. Even if the jury did not specifically find the drug amount was proven beyond a reasonable doubt, they did find that the petitioner was guilty of count three. This means that they found that he possessed cocaine base with the intent to distribute it. The lowest possible penalty provision for this crime is stated in section 841(b)(1)(C), which provides for a maximum punishment of 20 years imprisonment. 21 U.S.C. § 841(b)(1)(C). The petitioner was sentenced to 135 months, which is 11 years and 3 months, far below the 20 year maximum. The petitioner's contention that because the indictment failed to specify the penalty section, he should have been sentenced to a maximum of 5 years under section 841(b)(1)(D), is incorrect. Section 841(b)(1)(D) is only applicable to marijuana, not cocaine base. Any enhancement based on drug amounts in this case does not violate...