In re Joshua, 00-14328

• Decision Date: 30 August 2000
• Docket Number: No. 00-14328,00-14328
• Parties: (11th Cir. 2000) In Re: Benhurshan JOSHUA, Petitioner. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1281

224 F.3d 1281 (11th Cir. 2000)

In Re: Benhurshan JOSHUA, Petitioner.

No. 00-14328

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Aug. 30, 2000.

Sept. 12, 2000.

Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. 2255, 2244(b)(3)(A).

Before BLACK, HULL and WILSON, Circuit Judges.

PER CURIAM:

Benhurshan Joshua applies for an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, pursuant to 28 U.S.C. 2255 and 2244(b)(3)(A).¹ Because we find that Joshua's second motion does not contain a claim that relies on a new rule of constitutional law made retroactive to cases on collateral review, we deny his application.

According to his application, Joshua was convicted on two counts of possession with intent to distribute cocaine and sentenced to 240 months' imprisonment. On direct appeal, this Court affirmed Joshua's conviction and sentence. Subsequently, Joshua filed a 2255 motion in the district court, asserting that his counsel had been ineffective. The district court denied Joshua's motion. Joshua now seeks permission from this Court to file a second 2255 motion attacking his conviction and sentence.

Federal prisoners seeking to file a second or successive motion to vacate, set aside, or correct a sentence must move the court of appeals for an order authorizing the district court to consider the second or successive motion. See 28 U.S.C. 2255 2244(b)(3). Such authorization may be granted only if the court of appeals certifies that the second or successive motion contains a claim relying on:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Id. 2255.

In his application, Joshua asserts that drug quantity and drug type are elements of an offense that must be charged in an indictment and submitted to a jury. Because Joshua's indictment did not specify a drug quantity, Joshua asserts that the district court should not have enhanced his sentence based upon this factor. In addition, Joshua asserts that the indictment in his case charged distribution of cocaine, not distribution of "crack," a specific form of cocaine base. Accordingly, Joshua argues that the sentencing court erred in applying an enhanced sentence for distribution of crack cocaine. In support of his claims, Joshua relies on Apprendi v. New Jersey, --- U.S. ----, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), contending that it created a new rule of constitutional law made retroactive to cases on collateral review.

In Apprendi the defendant pled guilty to second-degree possession of a firearm for an unlawful purpose and third-degree unlawful possession of an antipersonnel bomb. 120 S.Ct. at 2352. Under New Jersey law, possession of a firearm for an unlawful purpose carried a term of imprisonment between five and ten years. A separate statute, described by the New Jersey courts as a hate-crime statute, provided for an extended term of imprisonment if the trial judge found, by a preponderance of the evidence, that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." Id. at 2351 (citing N.J. Stat. Ann. 2C:44-3(e) (West.Supp.2000)). The hate-crime statute authorized an increased term of imprisonment of 10 to 20 years. At sentencing, the trial judge determined that the hate-crime enhancement applied, and sentenced Apprendi to 12 years' imprisonment. Apprendi filed a direct appeal attacking the enhancement of his sentence under the hate-crime statute. Apprendi contended that the hate-crime issue had not been submitted to the jury and, therefore, the court erred in applying the enhancement. The New Jersey Supreme Court affirmed the conviction and sentence, and the United States Supreme Court granted a writ of certiorari. The Supreme Court reversed, holding that because the enhancement under the hate-crime statute increased Apprendi's maximum statutory penalty, the issue should have been submitted to the jury and proven beyond a reasonable doubt. 120 S.Ct. at 2362-63.²

Only the First Circuit has addressed whether Apprendi created a new rule of constitutional law made retroactive to cases on collateral review, pursuant to 2255. See Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir.2000). In that case, Sustache-Rivera previously had filed a 2255 motion attacking his conviction and sentence. After the Supreme Court issued its decision in Apprendi, Sustache-Rivera filed an application in the First Circuit Court of Appeals seeking permission to file a second...