Oliver v. US, 1:95-CV-134.

• Citation: 901 F. Supp. 1262
• Decision Date: 05 October 1995
• Docket Number: No. 1:95-CV-134.,1:95-CV-134.
• Parties: Craig Wines OLIVER, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Michigan

901 F. Supp. 1262

Craig Wines OLIVER, Movant, v. UNITED STATES of America, Respondent.

No. 1:95-CV-134.

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

October 5, 1995.

COPYRIGHT MATERIAL OMITTED

James R. Redford, Asst. U.S. Attorney, Michael H. Dettmer, United States Attorney, Grand Rapids, MI, for respondent.

Craig Wines Oliver, FCI-PA, Federal Correctional Institution, Bradford, PA, Pro Se.

David A. Dodge, David A. Dodge, PC, Grand Rapids, MI, for movant.

OPINION

ROBERT HOLMES BELL, District Judge.

This matter comes before the Court on Movant Craig Wines Oliver's motion under 28 U.S.C. § 2255 to vacate the sentence that was imposed upon him by this Court on June 5, 1992. Oliver contends he should be resentenced using the principles established by recent decisions.

I.

On February 12, 1992, Oliver entered a plea of guilty to one count of manufacturing marijuana in violation of 21 U.S.C. § 841. He was sentenced, to 150 months in prison, followed by 5 years supervised release. The Court also imposed a fine of $30,000, and a $50 mandatory special assessment.

Oliver contends his sentence should be vacated and he should be resentenced in accordance with the principles established by two recent Sixth Circuit Court of Appeals decisions: United States v. Stevens, 25 F.3d 318 (6th Cir.1994), relating to the method for determining the quantity of marijuana involved in the offense, and United States v. Morrison, 983 F.2d 730 (6th Cir.1993), relating to acceptance of responsibility.

II.

A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. "To prevail under § 2255, Petitioner must show a `fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)).

In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). A petitioner may not raise claims in a § 2255 motion of even constitutional or jurisdictional magnitude to which no contemporaneous objection was made or which were not presented on direct appeal, unless he can show good cause excusing his failure to raise the issues previously and actual prejudice resulting from the alleged errors. Id. at 167-68, 102 S.Ct. at 1594; Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.1989).

III.

Prior to sentencing, this Court held an evidentiary hearing to determine the quantity of marijuana involved in Oliver's offense. Based upon evidence that the police seized over 400 plants from the rafters of Defendant's garage in 1990 and that Defendant had grown at least as many plants in 1989, this Court determined that Defendant Oliver had grown between 700 and 1000 plants in 1989 and 1990.

The drug equivalency provisions in § 2D1.1 of the Sentencing Guidelines provide in pertinent part that "in the case of an offense involving marihuana plants, if the offense involved (A) 50 or more marihuana plants, treat each plant as equivalent to 1 KG of marihuana." Applying this provision, this Court determined that Oliver manufactured between 700 and 1000 kilograms of marijuana, which resulted in a base offense level of 30.

On appeal Oliver objected to this Court's application of the equivalency provision because the plants were not discovered in an unharvested state. The Court of Appeals found no error in this Court's findings regarding the number of plants grown, and did not reach the legal issue under § 2D1.1.¹ United States v. Oliver, No. 92-1718, 989 F.2d 501 (Table) (6th Cir. Mar. 10, 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1048, 127 L.Ed.2d 371 (1994).

It was not until 1994, in Stevens, supra, that the Sixth Circuit directly addressed the question of the applicability of the equivalency provision to harvested plants. In Stevens the defendant was convicted of conspiracy to possess with intent to distribute marijuana. The trial court had used the number of plants and the 1 KG equivalency provision of § 2D1.1 in calculating his sentence. 25 F.3d at 320. On appeal the Sixth Circuit vacated the sentence and remanded for resentencing. The Court reasoned that the stepped-up punishment in the equivalency provision applies only to live plants that are found. For marijuana that has been harvested, the guidelines punishment should be based upon the actual weight of the controlled substance. Id. at 321.²

The Supreme Court denied Oliver's petition for certiorari on February 22, 1994. Stevens was decided by the Sixth Circuit on May 31, 1994, three months after Oliver's conviction and sentence had reached absolute finality. Oliver contends, nevertheless, that Stevens should be applied retroactively, and that he should be resentenced based upon the usable output of the marijuana, and not on the number of "plants."

A prisoner seeking habeas corpus relief generally cannot benefit from a new rule announced after the prisoner's conviction has become final. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), in a plurality opinion, the Supreme Court first announced the principle that new rules should not be applied retroactively on collateral review unless they fit one of two narrow exceptions. One exception applies if the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, and the other applies if the new rule requires the observance of those procedures that are implicit in the concept of ordered liberty. Id. at 311, 109 S.Ct. at 1075.

The doctrine of nonretroactivity has subsequently been adopted by a majority of the Supreme Court, and has been restated as follows:

Subject to two narrow exceptions, a case that is decided after a defendant's conviction and sentence become final may not provide the basis for federal habeas relief if it announces a "new rule." ... A decision announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final."

Gilmore v. Taylor, ___ U.S. ___, ___, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306, 316 (1993) (citations omitted).

Oliver contends that the "new rule" analysis set forth in Teague and its progeny has no application to his situation because his claim is not brought under § 2254 and because his claim is based upon substantive criminal law rather than upon constitutional criminal procedure.

Oliver contends that the Teague analysis was developed in § 2254 cases where comity principles come into play, and that it should not be extended to cover § 2255 cases where comity is not a concern.

The Court is not persuaded by Oliver's reasoning. Teague was based upon two policy considerations — finality of criminal convictions as well as comity. 489 U.S. at 308-10, 109 S.Ct. at 1074-75. Although comity is not at issue in § 2255 cases, the interest in finality of criminal convictions is as great in § 2255 cases as it is in § 2254 cases. Because of the similarities between the relief available under § 2254 and § 2255, case law decided under one section is generally applicable to the other. See Reed v. Farley, ___ U.S. ___, ___, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277, 292 (1994); Metheny v. Hamby, 835 F.2d 672, 673-74 (6th Cir.1987), cert. denied, 488 U.S. 913, 109 S.Ct. 270, 102 L.Ed.2d 258 (1988). The Sixth Circuit has in fact applied the Teague retroactivity analysis in a § 2255 case. See Pelaez v. United States, 27 F.3d 219 (6th Cir.1994). Other courts which have been faced with the issue have also routinely applied Teague to § 2255 cases, with or without discussion. See, e.g., Van Daalwyk v. United States, 21 F.3d 179, 181-83 (7th Cir.1994); United States v. Salerno, 964 F.2d 172, 176-77 (2d Cir.1992); 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). In fact, this Court is aware of no court which has declined to apply the Teague analysis on the basis that the case before it was filed under § 2255 rather than § 2254.

The more significant issue raised by Oliver's motion is whether the Teague analysis only applies to the retroactive application of new rules of constitutional criminal procedure, or whether it also applies to a nonconstitutional decision concerning the reach of a federal statute or, in this case, the Sentencing Guidelines.

This Court is aware that Oliver's distinction between procedural and substantive rules was suggested by the Sixth Circuit in Callanan v. United States, 881 F.2d 229 (6th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). The Court held in Callanan that where an intervening change of law is such that the defendant was punished for an act that the law does not make criminal, the new rule of law must be applied retroactively in postconviction proceedings. Id. at 231-32. In a footnote the Court noted that Teague was not controlling because it only addresses the retroactivity of "new constitutional rules of criminal procedure." Id. at 232 n. 1.

This distinction was also applied by the Tenth Circuit in United States v. Dashney, 52 F.3d 298 (10th Cir.1995). In Dashney the defendant was convicted under federal law for structuring cash transactions. After his conviction became final the Supreme Court decided in Ratzlaf v. United States, ___ U.S. ___, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), that under the federal structuring statute, a...