Jackson v. U.S.

• Citation: 129 F.Supp.2d 1053
• Decision Date: 20 December 2000
• Docket Number: No. Crim. 95-50029.,Crim. 95-50029.
• Parties: Darry JACKSON, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

129 F.Supp.2d 1053

Darry JACKSON, Petitioner, v. UNITED STATES of America, Respondent.

No. Crim. 95-50029.

United States District Court, E.D. Michigan, Southern Division.

December 20, 2000.

Order on Reconsideration February 21, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Arthur J. Weiss, Farmington Hills, MI, Arthur A. Weiss, Jaffe, Raitt, Detroit, MI, William A. Siebert, Gladwin, MI, for Petitioner.

Mark C. Jones, U.S. Attorney's Office, Flint, MI, for Respondent.

ORDER

GADOLA, District Judge.

Before the Court are Petitioner's motions to (a) amend his petition pursuant to 28 U.S.C. § 2255 (docket entry 150) and (b) vacate his sentence pursuant to 28 U.S.C. § 2255 (docket entry 123). Pursuant to Local Rule 7.1(e)(2), this Court has determined that a hearing would not aid in the disposition of these motions. For the reasons stated below, the Court grants Petitioner's motion to amend his petition pursuant to 28 U.S.C. § 2255 and denies Petitioner's motion to vacate his sentence pursuant 28 U.S.C. § 2255.

I BACKGROUND

On June 19, 1996, a jury convicted Petitioner of conspiracy to distribute cocaine (count I), money laundering (counts II and IV), and making false statements to a federally-insured bank (count III). At sentencing, this Court concluded, by a preponderance of the evidence, that Petitioner was accountable for the distribution of over 150 kilograms of powder cocaine (docket entry 102, Tr. 26:5-9) and sentenced him to 360 months' imprisonment for that count (docket entry 102, Tr. 28:1). The Court also sentenced Petitioner to 240 months' imprisonment for each of the other counts, but Petitioner had to serve those terms concurrently (docket entry 102, Tr. 28: 2-11). The Court also sentenced Petitioner to ten years of supervised release for count I, and three years of supervised release for each remaining count (docket entry 102, Tr. 28: 22-25). Petitioner must serve these terms concurrently as well.

Petitioner unsuccessfully appealed his sentence to the United States Court of Appeals for the Sixth Circuit (docket entry 116). On January 12, 2000, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds that he suffered ineffective assistance of counsel both at trial and on appeal (docket entry 123).

On June 26, 2000, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that, except for the fact of a previous 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. at 2362-63.

On September 14, 2000, Petitioner filed a motion to amend his petition to include arguments predicated upon the Supreme Court's decision in Apprendi (docket entry 150).

II MOTION TO AMEND

A party may amend his § 2255 petition twenty days after service "only by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a); Doe v. United States, 112 F.Supp.2d 398, 401 (D.N.J. 2000). Here, the Government is the adverse party, and it does not consent to Petitioner's motion. Whether Petitioner may amend his petition thus hinges on whether the Court will grant him leave to do so.

The Court must grant leave to amend freely when justice requires. See Piner v. United States, No. 97-1304, 1999 WL 454708, at *1 (6th Cir. June 21, 1999). The Court would, however, deny the motion if: (1) Petitioner brought his proposed amendment in bad faith or for dilatory reasons; (2) granting the motion would cause undue delay or prejudice to the Government; or (3) granting the motion would be futile. See id. As there is no evidence that either of the first two elements exists here, the Court considers the third, futility.

The Court will deny as futile a motion to amend where the statute of limitations bars the amended claims. See Willits v. Peabody Coal Co., No. 98-5458, 1999 WL 701916, at *19 (6th Cir. Sept. 1, 1999); Doe, 112 F.Supp.2d at 402. In most cases, a petition made pursuant to § 2255 is subject to a one year statute-of-limitations accruing on the date that the judgment of conviction becomes final. See id. Here, Petitioner's motion to amend exceeds this time period.

This case may fall, however, under an exception to the typical case. That exception dictates that a petitioner's claim under § 2255 is not time barred if he files it within 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.A. § 2255 (West 2000). Petitioner filed his claim within one year of the Apprendi decision. The question thus becomes: has the newly-recognized right of Apprendi been "made retroactively applicable to cases on collateral review"? On this point, the Court has found no binding authority.

The Court begins with the observation that the wording of § 2255 is a classic example of the perils surrounding use of the passive voice. See generally William Strunk Jr. & E.B. White, The Elements of Style 18 (4th ed.2000). To wit, Congress did not specify exactly what court must make a newly-recognized right "retroactively applicable to cases on collateral review." See United States v. Valdez, 195 F.3d 544, 548 n. 7 (9th Cir.1999); United States v. Lloyd, 188 F.3d 184, 187 (3d Cir.1999). The Court must therefore decide whether Congress intended that the Supreme Court must be the entity that declares a newly-recognized right retroactively applicable on collateral review, or if it intended that a lower court may perform the same function.

This question is dispositive because the Supreme Court has not declared the right created by Apprendi to apply retroactively to cases on collateral review. See, e.g., In re: Joshua, 224 F.3d 1281, 1283 (11th Cir.2000). At least one lower court, on the other hand, has concluded that Apprendi applies retroactively to collateral attacks. See Doe, 112 F.Supp.2d at 402 (granting a motion to amend a § 2255 petition to include arguments based on Apprendi). In short, if this Court were to conclude that the Supreme Court must pronounce the retroactivity of Apprendi, Petitioner's motion to amend would be time barred; if it were to conclude that a lower court's pronouncement would suffice to perform the same purpose, Petitioner's motion would be timely. For the following three reasons, this Court holds that a lower court's holding that a newly-recognized right applies retroactively for purposes of collateral review suffices to make that right retroactively applicable to a party's first petition under § 2255.

First, the Court turns to the construction of the statute. Section 2255 is a product of the Antiterrorism and Effective Death Penalty Act of 1996 ("ADEPA"). The text of § 2255 shows that, when Congress desires to make the Supreme Court the sole entity that can make a new rule of constitutional law retroactive to cases on collateral review, it does so unambiguously. Several paragraphs below the statutory provision dealing with initial petitions under § 2255, Congress constructed the provision dealing with successive or second petitions under ADEPA. That provision reads as follows:

[a] second or successive motion [under § 2255] must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C.A. § 2255 (emphasis added).

In the provision of § 2255 at bar — a provision that Congress passed at the same time and placed in physical proximity to the above-quoted passage — Congress chose not to specify the Supreme Court as the sole court capable of declaring a newly-recognized right retroactive. Instead, it wrote that

[a] 1-year statute of limitation shall apply to a motion under [§ 2255]. The limitation period shall run from the latest of ... 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.A. § 2255 (emphasis added).

The juxtaposition of these provisions shows that: (1) Congress knew how to make the Supreme Court the sole entity that can make a newly-recognized right retroactive; (2) it chose to do just that in the case of second or successive petitions under § 2255; but (3) it chose not to do so in the case of other motions pursuant to § 2255. See Bates v. United States, 522 U.S. 23, 29-30, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) (reasoning that "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion"); cf. United States v. Page, 167 F.3d 325, 329 (6th Cir.1999) (Moore, J., concurring) (accepting the Congress-knew-how-to argument); United States v. Holmes, 975 F.2d 275, 283 n. 7 (6th Cir. 1992) (same).

The second reason in support of this Court's conclusion is that the legislative history of ADEPA evinces an intent to broaden the number of courts that can trigger retroactivity. As originally proposed, the part of ADEPA governing federal habeas-review of state death-sentences, § 2264, limited petitions to cases involving "new constitutional rights that have been retroactively applied by the Supreme Court." Orrin Hatch, Section by Section Analysis of Comprehensive Terrorism Prevention Act 1995, Gov't Press Releases, April 28, 1995, available in 1995 WL 14248293 (emphasis added). Section 2264 was the subject of great controversy within the Senate. See Tom Diemer, Terrorism Bill Debate Reflects Conflicting Agendas, Plain Dealer (Cleveland), June 4, 1995 at...