Doe v. U.S.
| Decision Date | 23 August 2000 |
| Docket Number | No. Civ.A. 99-912.,Civ.A. 99-912. |
| Citation | 112 F.Supp.2d 398 |
| Parties | John DOE, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of New Jersey |
Patrick A. Mullin, Hackensack, NJ, for petitioner.
Gary N. Wilcox, Assistant U.S. Attorney, Office of the U.S. Attorney, Newark, NJ, for respondent.
This matter is opened before the Court upon the petition of John Doe1 ("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 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.
A motion to amend a section 2255 pleading is governed by Federal Rule of Civil Procedure 15 and 28 U.S.C. § 2242 (); 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) (). 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 claim 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.
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).
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) (); 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...
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