Casas v. U.S., Civil No. 04-2359 (JAG).

• Court: United States District Courts. 1st Circuit. District of Puerto Rico
• Citation: 576 F.Supp.2d 226
• Docket Number: Civil No. 04-2359 (JAG).,Crim. No. 95-405 (GAG).
• Parties: Ralph CASAS, Petitioner, v. UNITED STATES of America, Respondent.
• Decision Date: 03 March 2008

576 F.Supp.2d 226 Ralph CASAS, Petitioner,
v.
UNITED STATES of America, Respondent. Civil No. 04-2359 (JAG). Crim. No. 95-405 (GAG). United States District Court, D. Puerto Rico. March 3, 2008.

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Ralph Casas, Coleman, FL, pro se.

Nelson J. Perez-Sosa, United States Attorney's Office, San Juan, PR, for Respondent.

OPINION AND ORDER

JAY A. GARCÍA-GREGORY, District Judge.

Ralph Casas (hereinafter, "Petitioner" or "Petitioner Casas") proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). Following a jury trial, Petitioner Casas was convicted of conspiracy to distribute narcotics and possession with intent to distribute narcotics in violation of 21 U.S.C. § 846. The Court of Appeals affirmed the conviction. In his present pro se motion, Petitioner seeks relief under

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the provisions of 28 U.S.C. § 2255, raising an Apprendi/Blakely issue and claiming that the prosecutor committed misconduct. For the following reasons, the Court DENIES his motion.

I. BACKGROUND

On December 13, 1995, a Federal Grand Jury returned an Indictment charging sixty (60) individuals. Among the defendants was Petitioner Casas who was charged with violations to Title 21 U.S.C. § 846. Crim. D.E. # 2. A Superseding Indictment was returned on August 8, 1996. Crim. D.E. 417. Count I charged all sixty defendants with conspiring between September 1992 and March 1995 to possess with intent to distribute approximately 1,400 grams of heroin and 9,445 kilograms of cocaine in violation of 21 U.S.C. § 846. Crim. D.E. 417.

The Court severed the trial of Petitioner Casas and three (3) other co-defendants from that of the other fifty-six (56) indicted defendants. The first group of indicted defendants to be tried were convicted after a nine-month trial starting in May of 1999. Petitioner Casas and three other co-defendants, Rafael Segui-Rodriguez, Feliciano Nieves, and Winston Cunningham were tried together before a jury from November 6 to November 28, 2001. On September 27, 2002, Petitioner Casas was convicted after a jury trial of the first count in the superseding indictment. Crim. D.E. 2106. On April 19, 2002, Petitioner was sentenced to imprisonment for the remainder of his lifetime, a special monetary assessment of $50.00, and a supervised release term of five (5) years. Crim. D.E. 2212. On April 26, 2002, Petitioner filed a notice of appeal. Crim. D.E. 2214. The First Circuit affirmed Petitioner Casas' conviction and sentence. United States v. Casas, 356 F.3d 104 (1st Cir.2004). See also Crim. D.E. 2504.

On December 10, 2004, Petitioner moved to vacate, set aside or correct the court's sentence pursuant to 28 U.S.C. § 2255 on the grounds that he was entitled to relief based on an Apprendi/Blakely rationale, and on the basis of alleged prosecutorial misconduct.

II. DISCUSSION

A. Section 2255 Standard

Section 2255 allows a convicted person being held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under Section 2255 must allege that; (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See, 28 U.S.C. § 2255. Accordingly, Section 2255 permits a court to afford relief "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; Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Even an error that may justify a reversal on direct appeal will not necessarily sustain a collateral attack. See United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Habeas review is an extraordinary remedy, and a Section 2255 motion simply is not a substitute for a direct appeal. Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

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B. Apprendi/Blakely Claim

As far as the Court can tell, Petitioner Casas is claiming that his sentence should be vacated pursuant to Apprendi and Blakely, because the length of his sentence was based on factual determinations made by the trial court alone, rather than a jury. He also claims that the Court's determinations were based "on allegations compiled together in the presentence report by a probation officer after trial" and that these were never submitted to the jury. See Petition, p. 4, Ground Two. As will be explained ahead, it is decisive that this claim was already decided and rejected on appeal. Secondly, Petitioner Casas claims that the prosecutor committed misconduct "by presenting testimony and evidence of murder and violence during his trial for drugs" and that as a result of this and other acts by the prosecutor, the jury found the Petitioner guilty. See Petition, p. 4, Ground Three. The latter claim is defaulted. In the alternative, this same issue was decided on appeal against codefendant-appellant Segui-Rodriguez, and, thus, Petitioner Casas cannot be entitled to relief.

The Court shall briefly examine Petitioner's claim. Petitioner submits that the sentencing court's determination as to facts not reflected in the jury's verdict and the role in the offense enhancements violated Blakely and Apprendi rationale. These cases, however, are inapplicable to Petitioner's sentence. For the benefit of discussion, we shall briefly discuss the trilogy of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

In Blakely, which involved a guilty plea entered in the State of Washington, the Supreme Court invalidated a sentence imposed by the trial court after finding that the punishment exceeded the statutory maximum applicable to the facts admitted by the defendant. See, Blakely, 124 S.Ct. at 2537-38. In doing so, the Blakely Court applied the rule in Apprendi v. New Jersey, supra., which requires that, "[o]ther 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." Id., 530 U.S. at 490, 120 S.Ct. 2348. Before Blakely, every federal circuit court of appeals had held that Apprendi did not apply to Sentencing Guideline calculations based on judicial fact findings, so long as the sentence was imposed within the statutory maximum as determined by the United States Code. In Booker, however, the Supreme Court found "no distinction of constitutional significance between the Federal Sentencing Guidelines" and the state sentencing scheme at issue in Blakely. Booker, 125 S.Ct. at 749. Specifically, the Supreme Court in Booker held that the mandatory character of the Sentencing Guidelines was incompatible with the Sixth Amendment right to a jury trial. Id., 125 S.Ct. at 749-50. Accordingly, and in line with Blakely, the Supreme Court in Booker extended the holding in Apprendi with the following modification: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id., 125 S.Ct. at 756.

Petitioner Casas is not entitled to relief under Apprendi, Blakely, and Booker for more than one reason. His reliance on these holdings is misplaced as none of them applies retroactively on collateral review. Like Blakely, Booker is not retroactive. See McReynolds v. United States,

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397 F.3d 479, 480 (7th Cir.2005), cert. denied, 545 U.S. 1110, 125 S.Ct. 2559, 162 L.Ed.2d 285 (2005) (holding that Booker does not apply retroactively to collateral proceedings under § 2255); see also Guzman v. United States, 404 F.3d 139, 140 (2nd Cir.2005); Varela v. United States, 400 F.3d 864, 868 (11th Cir.2005); Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir.2005). None of the announced guideline-related rules have been applied retroactively to cases on collateral review. See Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), where the Supreme Court concluded that the new requirements in Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which, like Blakely and Booker, applied Apprendi principles, do not apply retroactively to cases on collateral review. Schriro v. Summerlin, 124 S.Ct. at 2526; Varela v. United States, 400 F.3d at 867.

More important, even if Apprendi, Blakely, and Booker announced a new rule of constitutional law made retroactive to cases on collateral review, Petitioner Casas' motion would be denied as devoid of merit.

First, to be clear, as to the claim that the alleged Court determinations were based on the presentence report, the Court reminds the Petitioner that the presentence report does not bind the Court. See, United States v. Nelson-Rodríguez, 319 F.3d 12, 62-63 (1st Cir.2003)("[A]s the district court noted the report [PSR] is only a recommendation to the court; the court is not bound to accept these recommendations.") Therefore, this claim is meritless.

Second, contrary to Petitioner Casas' contention that the jury made no finding as to drug quantity or type, the jury convicted Petitioner of conspiring between September 1992 and March 1995 to possess with intent to distribute 9,445 kilograms of cocaine in violation of 21 U.S.C. § 846. The statutory maximum for this offense was...