Iacullo v. Stamper

• Decision Date: 22 August 2016
• Docket Number: CASE NO. 2:13-CV-523-WHA
• Parties: DINO IACULLO, Reg. No. 30812-004, Petitioner, v. DENNIS STAMPER, et al., Respondents.
• Court: U.S. District Court — Middle District of Alabama

DINO IACULLO, Reg. No. 30812-004, Petitioner,
v.
DENNIS STAMPER, et al., Respondents.

CASE NO. 2:13-CV-523-WHA

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

August 22, 2016

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

This case is before the court on a 28 U.S.C. § 2241 petition for writ of habeas corpus filed by Dino Iacullo ("Iacullo"), a federal inmate incarcerated at the Maxwell Federal Prison Camp at the time he filed this petition. The respondents filed responses addressing the claims for relief presented by Iacullo, and Iacullo submitted replies in support of his petition. Upon review of the petition, the responses filed by the respondents, and the replies filed by the petitioner, the court concludes that Iacullo's 28 U.S.C. § 2241 petition for writ of habeas corpus is due to be dismissed.

II. STATEMENT OF THE CASE

In 1995, a federal grand jury empaneled by the United States District Court for the Southern District of Florida indicted Iacullo for his role in a conspiracy to distribute cocaine.¹ A jury found Iacullo guilty of conspiracy to possess with intent to distribute cocaine and of attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On July 21, 1996,

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the court sentenced Iacullo to 293 months' imprisonment to run concurrently on each conviction, followed by five years of supervised release. Doc. 17-1 at 1-3. Iacullo filed a direct appeal, and the Eleventh Circuit Court of Appeals affirmed his convictions and sentence. See United States v. Iacullo, 142 F.3d 1282 (11th Cir. 1998); Doc. 17-2 at 5-12. Iacullo did not petition the United States Supreme Court for review of these convictions. Under applicable law, a conviction becomes final when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for [filing] a petition for certiorari elapsed or a petition for certiorari [is] finally denied." Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987); Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002). "The period in which a petition for certiorari must be filed ordinarily ends ninety (90) days after the entry of judgment." Dodd v. United States, 365 F.3d 1273, 1275 n.1 (11th Cir. 2004). Thus, Iacullo's convictions became final on or about July 21, 1998, after the ninety-day period for filing a petition for writ of certiorari with the United States Supreme Court had expired.

Beginning in June of 1999, Iacullo filed four 28 U.S.C. § 2255 motions in the United States District Court for the Southern District of Florida. That court dismissed the first two such motions without prejudice upon motions filed by Iacullo. The third § 2255 motion was "dismissed as time-barred[,]" Doc. 1 at 4, while the court dismissed the fourth § 2255 motion because Iacullo lacked authorization from the Eleventh Circuit to file a successive motion, see 28 U.S.C. § 2244(b)(3), and, in the alternative, as untimely. Doc. 17-4 at 4-5.² In October of 2014, Iacullo filed a motion

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for reduction of sentence under 18 U.S.C. § 3582(c)(2) after the United States Sentencing Commission adopted a 2014 amendment to the sentencing guidelines that reduced offense levels for certain drug offenses. See United States v. Iacullo, 631 F. App'x 854 (11th Cir. 2015). The United States District Court for the Southern District of Florida denied the motion and the Eleventh Circuit affirmed this denial. The appellate court's opinion, in relevant part, reads as follows:

Under the 1995 Sentencing Guidelines, Iacullo was assigned a base offense level of 38 and a criminal history category of I. This established a guideline range of 235 to 293 months' imprisonment.

In addition to describing the crimes of conviction, which arose out of a conspiracy to transport approximately 400 kilograms of cocaine from Florida to New York, the presentence investigation report ("PSR") states that Iacullo had been involved in other drug-trafficking activity. For example, the PSR states that Iacullo had been involved on at least three occasions in February and May of 1992 in "other successful transactions of cocaine" involving "[s]everal hundreds of kilograms of cocaine . . . in each transaction." PSR ¶ 24. Iacullo did not object to this paragraph in the PSR.

The district court adopted the factual findings and guideline computation of the PSR and sentenced Iacullo to a total term of 293 months' imprisonment. The court found that a sentence at the high end of the guideline range was appropriate "given Mr. Iacullo's prior significant involvement in drug trafficking activities." The court also noted that it would have imposed a longer sentence based on Iacullo's trial testimony had his guideline range been higher.

In 2014, the Sentencing Commission issued Amendment 782, which reduced the offense level for certain drug-trafficking offenses, including Iacullo's, by two levels. U.S.S.G. App. C, amend. 782. In October of that year, Iacullo, proceeding pro se, filed a motion to reduce his sentence under § 3582(c)(2) based on Amendment 782 and U.S.S.G. § 1B1.10. He asserted that Amendment 782 reduced his base offense level from 38 to 36. In support of his request for an amended sentence of 240 months' imprisonment, he cited his extensive post-offense rehabilitation, supported by attached documentation, including his completion of over 600 hours of various life-skills coursework while incarcerated. The government did not respond.

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The district court denied Iacullo's § 3582(c)(2) motion in a single-page order. After stating that it had "carefully reviewed" the motion and "the entire court file," the court explained its reasoning as follows:

According to Paragraph 24 of the Revised Presentence Investigation Report (PSR), to which Defendant Dino Iacullo did not object, Defendant was allegedly involved in other successful transactions involving cocaine. Several hundred kilograms of cocaine were involved in each transaction that took place on at least three occasions, during the months of February and May, 1992.

Based on the Defendant's prior drug activity, the Court, exercising its discretion, will deny the Defendant's request.

Iacullo moved for reconsideration of the court's order, explaining that he had been indicted separately for the conduct in paragraph 24 and sentenced to a concurrent term of 235 months' imprisonment. He again emphasized that he had strived to better himself during the time he had been in prison and that he had provided assistance to the government with its drug investigations. The district court denied the motion for reconsideration without explanation.

Iacullo, 631 F. App'x. at 855-56. In affirming this decision, the Eleventh Circuit noted that although "Iacullo was eligible for a sentence reduction . . . [t]he district court did not abuse its discretion in denying Iacullo's § 3582(c)(2) motion[,]" due solely to "his 'prior drug activity.'" Id. at 857.

III. CLAIMS AND ARGUMENTS

Iacullo filed this 28 U.S.C. § 2241 petition in July of 2013. In this petition, Iacullo challenges the constitutionality of the 293-month sentence imposed upon him by United States District Court for the Southern District of Florida for the conspiracy to possess and attempted possession of cocaine convictions. Specifically, Iacullo alleges that this sentence was improperly enhanced beyond the maximum authorized by law in violation of Alleyne v. United States, 133 S.

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Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).³ Doc. 1 at 5-9. In support of this allegation, Iacullo asserts that Alleyne and Apprendi establish he is actually innocent of the 293-month sentence because he was never indicted, convicted or found guilty beyond a reasonable doubt of the conduct or drug quantities on which the sentence is based. Doc. 1 at 8-9. Iacullo therefore argues that the trial court had no authority to enhance his sentence based on elements neither stated in the indictment nor proven beyond a reasonable doubt, and a fundamental defect occurred at sentencing and Eleventh Circuit precedent foreclosed his claims in prior post-conviction actions such that he should be allowed to proceed on a 28 U.S.C. § 2241 petition under the "savings clause" set forth in § 2255(e).

The respondents filed responses in opposition to Iacullo's habeas petition in which they argue that Iacullo has failed to meet his burden of showing that the remedy available to him under § 2255 is "inadequate or ineffective" as required by § 2255(e), and therefore he may not proceed before this court on the current 28 U.S.C. § 2241 petition. Doc. 14 at 3-5; Doc. 17 at 2-5; Doc. 36 at 5; Doc. 46 at 6. Iacullo filed responses to each of the briefs filed by the respondents. In these responses, Iacullo argues that his challenge to the excessive nature of the 293-month sentence meets the narrow exception provided by the savings clause and permits review of his claim in a § 2241 habeas petition. Iacullo cites numerous cases, including Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013), and Begay v. United States, 553 U.S. 137 (2008), in support of this argument. The respondents, however, maintain that Iacullo's reliance on these and other cases is misplaced:

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The essence of Petitioner's claim is his current 293 month sentence . . . is illegal because it exceeds the statutory maximum term of 240 months imprisonment allowed under 28 U.S.C. § 841(b)(1)(C). Petitioner asks this Court to apply the changes of law announced in Begay . . . and Bryant . . . , to the facts of his case. In Begay, the Court limited the meaning of "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e). 553 U.S. at 142-43, 128 S.Ct. 1584-85.
In Bryant, the court stated, "[w]e now hold that the new rule announced in Begay applies retroactively for purposes of a first § 2255 motion and the § 2241 petition Bryant seeks to bring under § 2255(e)." Bryant v. Ward

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