Fisher v. US
| Decision Date | 04 June 1996 |
| Docket Number | Civil Action No. 96-10385-WGY. |
| Parties | Michael FISHER, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Anthony M. Traini, Traini Law Offices, Chestnut Hill, MA, for Michael Fisher.
Michael Fisher, White Deer, PA, pro se.
Patrick M. Hamilton, U.S. Attorney's Office, Boston, MA, for U.S.
This petition for habeas corpus filed by Michael Fisher ("Fisher") pursuant to 28 U.S.C. § 2255 presents the issue whether the administrative forfeiture of Fisher's automobile premised upon his involvement in a drug trafficking scheme precludes his later criminal conviction and sentence for that same scheme as violative of the Double Jeopardy Clause of the Fifth Amendment.
Fisher was arrested on December 29, 1989, pursuant to a criminal complaint issued by the United States District Court for the District of Massachusetts and, on January 26, 1990, was indicted along with his co-defendants Ali Osseiran and Rashid Haloui for (1) attempted possession with intent to distribute cocaine in violation of 21 U.S.C. § 846 and (2) conspiring with Ali Osseiran to violate 21 U.S.C. § 846.1
At the time of Fisher's arrest, the government seized one 1989 Lincoln Town Car pursuant to 21 U.S.C. § 881(a)(4).2 The government provided Fisher with a copy of a "Notice of Seizure of a Conveyance for a Drug Related Offense" with regard to the Lincoln Town Car. See Motion to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody Pursuant to 28 U.S.C. § 2255 ("Motion to Vacate"), Ex. D. The automobile was registered in Fisher's name and he possessed title to the car. Pursuant to 19 U.S.C. § 1608, the United States Drug Enforcement Administration sent by certified mail a notice of seizure to Fisher's home address in Winthrop, Massachusetts on three occasions. See Ex. E; Government's Opposition to Michael Fisher's Second Motion Pursuant to 28 U.S.C. § 2255 ("Government's Opposition"), Ex. 2. In addition, the Drug Enforcement Administration published notice of the seizure in USA Today for three consecutive weeks. See Motion to Vacate, Ex. F; Government's Opposition, Ex. 3. Approximately twenty days after the first publication of the notice, as Fisher failed to file a claim, the vehicle was administratively forfeited pursuant to 19 U.S.C. § 1609.
On or about March 13, 1990, Fisher filed a Motion for Return of Vehicle. The government opposed the motion stating that Fisher had failed to respond to the forfeiture notices in a timely manner and was therefore precluded from recovering the vehicle under Fed.R.Crim.P. 41(e). Fisher denied receipt of any registered mail sent to him by the Drug Enforcement Administration. See Motion to Vacate, Ex. K. Finding that Fisher had given the government the address to which the notices were sent, Chief Judge Tauro denied Fisher's motion at a hearing held on May 23, 1990. See Government's Opposition, Ex. 4. Fisher did not appeal this decision.
Meanwhile, the criminal action against Fisher proceeded apace. Facing extensive Bruton problems, the government put the alleged drug courier, Haloui, to trial first, evidently expecting to use him, after a guilty verdict, to bolster their case against Osseiran and Fisher. In this, they were disappointed, as Haloui was acquitted. United States v. Haloui, 89-CR-100204 (D.Mass. June 1, 1990). Nevertheless, the government had Haloui held as a material witness and, on September 17, 1990, trial commenced against Osseiran and Fisher. While the events of that trial are not without interest, see United States v. Osseiran, 798 F.Supp. 861 (D.Mass. 1992), they need not be recounted here. It suffices to say that Fisher was convicted on both counts and this Court imposed a sentence of ten years imprisonment.
Fisher appealed both his conviction and sentence to the Court of Appeals for the First Circuit. On June 3, 1991, while that appeal was pending, he filed his first habeas corpus petition asserting ineffective assistance of counsel. This Court denied that petition on September 29, 1992. On August 17, 1993, the Court of Appeals affirmed Fisher's criminal convictions and sentence. See United States v. Fisher, 3 F.3d 456 (1st Cir.1993). Fisher's present motion asserts for the first time — perhaps in response to the media coverage of the Supreme Court's granting certiorari in United States v. $405,089.23 U.S. Currency and United States v. Ursery, ___ U.S. ___, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996), see also Paul M. Barrett, Justices Rule on Use of Criminal Case and Forfeiture Suit Against Defendants, Wall St. J., Jan. 15, 1996 at B3; Laurie Asseo, U.S. Court to Hear Forfeiture Cases, The Boston Globe, Jan. 13, 1996 at 3, — that his criminal conviction violates the Double Jeopardy Clause.
Fisher argues that his criminal prosecution and punishment following the administrative forfeiture of the Lincoln Town Car violates the Double Jeopardy Clause, thus invalidating his criminal sentence.3 Fisher has two procedural hurdles to overcome, however, before this Court can reach the merits of his double jeopardy claim.
The government argues, inter alia, that Fisher waived his double jeopardy claim by failing to raise it either at the time of his original criminal trial, his subsequent appeal, or even in his first habeas corpus petition. The government contends that since both the Double Jeopardy Clause and the Supreme Court's seminal decision in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) were available at the time of Fisher's prior proceedings, he is presently barred from raising a double jeopardy claim.4
A defendant is required to raise a defense in a timely manner at trial or on direct appeal. See United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), reh'g. denied, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982). However, the Supreme Court has said that a defendant is justified in not raising a claim if at the time of the proceedings in question, "the claim is so novel that its legal basis is not reasonably available to counsel." Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984).
The underpinning of Fisher's present argument was not fully explicated until the Supreme Court's decision in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), which was announced on June 28, 1993.5 Austin holds that civil forfeiture under 21 U.S.C. § 881(a)(4) constitutes punishment for purposes of the Excessive Fines Clause.6 While the Court in Austin stated that its holding was dictated by history and existing precedents, Austin, 509 U.S. at 616 n. 9, 617, 621, 113 S.Ct. at 2809 n. 9, 2810, 2812, it establishes a legal rule that had not previously been applied. In its wake, federal courts have been struggling with variants of the issue posed by Fisher's present motion. Indeed, the Supreme Court has just recently heard two double jeopardy claims involving criminal convictions and civil forfeitures. See United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994) (), op. amended on denial of reh'g by, 56 F.3d 41 (9th Cir.1995), cert. granted sub nom. United States v. Ursery, ___ U.S. ___, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996); United States v. Ursery, 59 F.3d 568 (6th Cir.1995) (), cert. granted, ___ U.S. ___, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996). In the present unsettled state of the law, the rationale of Reed would indicate that Fisher had cause not to earlier raise his double jeopardy claim.7 See Fed. R.Crim.P. 12(f).
However, concluding that Fisher did not waive his double jeopardy argument because the decision in Austin changed the landscape of double jeopardy jurisprudence leaves him with a second potential dilemma to overcome. The government argues that Fisher may not avail himself of Austin in this context because of the prohibition, enunciated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, against the retroactive application of so-called "new" rules of law. See Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), reh'g denied, 495 U.S. 924, 110 S.Ct. 1960, 109 L.Ed.2d 322 (1990); Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). The government argues, in essence, that Fisher is caught in a legal whipsaw; either he waived his current argument by failing to raise it earlier, or he is precluded from taking advantage of the rule announced by Austin for the very reason that it was not available to him in his earlier proceedings.8
While this is a question that the First Circuit has yet to address, this Court has expressed the opinion that the Teague standard does not apply in the section 2255 context, see United States v. Payne, 894 F.Supp. 534 (D.Mass.1995), and this Court continues to be of that opinion. However, as several courts have explicitly held that Teague does apply to section 2255, see Van Daalwyk v. United States, 21 F.3d 179, 181-183 (7th Cir.1994); Gilberti v. United States, 917 F.2d 92, 94-95 (2d Cir.1990); Sanabria v. United States, 916 F.Supp. 106, 110 (D.P.R.1996); United States v. Tayman, 885 F.Supp. 832, 837-38 (E.D.Va.1995); Elortegui v. United States, 743 F.Supp. 828, 831 (S.D.Fla.1990), aff'd without opinion, 943 F.2d 1317 (11th Cir.1991), cert. denied, 502 U.S. 1116, 112 S.Ct. 1229, 117 L.Ed.2d 464 (1992); Hrubec v. United States, 734 F.Supp. 60, 65 (E.D.N.Y.1990), and others have applied it without discussion, see, e.g., United States v. Judge, 944 F.2d 523, 525 (9th Cir.1991), cert. denied, 504 U.S. 927, 112 S.Ct. 1988, 118 L.Ed.2d 585 (1992); United States v. Pavlico, 961 F.2d...
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The future of Teague retroactivity, or "redressability," after Danforth v. Minnesota: why lower courts should give retroactive effect to new constitutional rules of criminal procedure in postconviction proceedings.
...Friendly, supra note 139, at 146. (454.) Id. (455.) See supra notes 310-31 and accompanying text. (456.) See Fisher v. United States, 931 F. Supp. 53, 57 (D. Mass. 1996) (citing Gilberti v. United States, 917 F.2d 92, 94-95 (2d Cir. 1990)); United States v. Payne, 894 F. Supp. 534, 542-43 (......