Pretei v. United States
| Decision Date | 08 March 2013 |
| Docket Number | Case No. 8:13-CV-207-T-27AEP,Crim Case No. 8:11-CR-372-T-27AEP |
| Parties | EDER PRETEI, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
BEFORE THE COURT is Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Dkt. 1) and "Memorandum of Points and Authorities in Support of Petitioner's 28 USC 2255 Application" (CV Dkt. 2). All three of Petitioner's grounds are premised on the recent decision in United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), in which the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503(a) and 70506 ("MDLEA") was found unconstitutional as applied to drug-trafficking activities "in the territorial waters of Panama." Id. at 1258. In this case, however, the vessel on which Petitioner was found was engaged in drug trafficking in international waters, distinguishing it from Bellaizac-Hurtado.
After conducting the review required by Rule 4(b), Rules Governing Section 2255 Proceedings (2005),1 it is apparent that the motion is due to be summarily denied because it plainly appears from the motion and record of prior proceedings that Petitioner is not entitled to relief.
Petitioner pleaded guilty to conspiracy to possess with intent to distribute and to distribute five (5) kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States (Count One) and possession with intent to distribute five (5) kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States (Count Two) (CR Dkts. 68, 71). He was sentenced to 60 months in prison on Count One and 144 months on Count Two, concurrent, followed by concurrent terms of 60 months of supervised release. (CR Dkt. 133). Judgment was entered March 28, 2012. (CR Dkt. 135). There was no appeal.
Since Petitioner did not appeal, his conviction became final on April 11, 2012. See Adams v. United States, 173 F.3d 1339, 1343 n.2 (11th Cir. 1999) (). Petitioner's § 2255 motion was signed on January 16, 2013 and is deemed filed that day under the "mailbox rule." Id. at 1341. The motion is therefore timely.
In his § 2255 motion, Petitioner raises three grounds:
A claim that was available but was not raised in the district court or on appeal is procedurally defaulted from consideration on collateral review, absent cause and prejudice. McCoy v. UnitedStates, 266 F.3d 1245, 1258-59 (11th Cir. 2001); Bousleyv. United States, 523 U.S. 614, 622 (1998); United States v. Frady, 456 U.S. 152 (1982). To show cause for not raising a claim, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim previously. Lynn v. United States, 365 F.3d 1225, 1235 n.20 (quoting Murray v. Carrier, Ml U.S. 478, 488 (1986)). To show prejudice, a petitioner must demonstrate that "errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness." Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal citations omitted). To establish actual innocence, a petitioner must demonstrate factual innocence, not mere legal insufficiency. Bousley, 523 U.S. at 623-24.
Petitioner's first two claims are procedurally defaulted because he failed to raise them in the district court or on appeal. Absent a showing of cause for failing to raise them and actual prejudice arising from that failure, these claims are subject to dismissal. See Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). To the extent Petitioner contends that ineffective assistance was the cause for his procedural default, that contention is without merit.
At the time of Petitioner's conviction, controlling Circuit precedent had expressly rejected the argument that Congress exceeded its authority in enacting the MDLEA and that application of the MDLEA to drug trafficking on the high seas was unconstitutional. See United States v. Saac, 632 F.3d 1203 (11th Cir.), cert. denied, 132 S.Ct. 139 (2011); United States v. Estupinan, 453 F.3d 1336 (11th Cir. 2006). Counsel could not have been ineffective in failing to raise a claim which controlling Circuit precedent had already rejected.
Moreover, during his guilty plea hearing, Petitioner admitted that the vessel on which he wasfound was interdicted in international waters.2 The holding in United States v. Bellaizac-Hurtado applies only to MDLEA prosecutions of drug trafficking in the territorial waters of a foreign country. Petitioner therefore cannot establish prejudice resulting from counsel's failure to challenge application of the MDLEA. Even if the Grounds One and Two are not procedurally defaulted, they have no merit and are subject to summary dismissal.
Ground One: "Petitioner's Indictment Must be Dismissed for Lack of Jurisdiction and Because of the Unconstitutionality of the Maritime Drug Law Act in Light of United States v. Bellaizac-Hurtado, No. 11-14049 (11th Cir. November 6, 2012)"
As demonstrated by the change of plea transcript, Petitioner pleaded guilty and expressly agreed that the factual basis supporting the charges to which he was pleading guilty were true (CR Dkt. 156, p. 42). Specifically, he confirmed under oath that the self propelled semi-submersible vessel on which he was found was "operating in international waters in the Carribean Seaapproximately 24 nautical miles off the coast of Honduras" (CR Dkt. 156, pp. 41-43). The vessel was stateless, none of the occupants claimed a nationality for the vessel, and it was carrying approximately 15,000 pounds of baled cocaine. (Id. at p. 41 - 42). Accordingly, the United States had jurisdiction over the vessel under the MDLEA. United States v. Tinoco, 304 F.3d 1088 (11th Cir. 2002), United States v. Rendon, 354 F.3d 1320, 1324-25 (11th Cir. 2003); United States v. Saac, supra; United States v. Estupinan, 453 F.3d at 1339 n.2 ()(citing 46 U.S.C. app. § 1903(c)(1)(A)). Petitioner's contention that there was no subject matter jurisdiction is therefore without merit.
And his contention that the MDLEA was unconstitutional as applied has no merit. In his affidavit, Petitioner avers that the vessel was in the territorial waters of Honduras (CV Dkt. 3). These statements flatly contradict the facts he swore were true during his change of plea hearing. As noted, when he pleaded guilty, he admitted under oath that the vessel on which he was found was operating in international waters in the Carribean 24 nautical miles off the coast of Honduras.
Petitioner's sworn statements made during his plea hearing, along with the findings made by the judge accepting his plea, constitute "a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 74 (1977). There is a strong presumption that the statements he made during his plea colloquy are true. United States v Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (citing United States v. Gonzalez-Mercado, 808 F.2d 796, 799-800 n.8 (11th Cir. 1987)). This presumption is not overcome by a bald assertion of misunderstanding, Harvey v. United States, 850 F.2d 388, 396 (8th Cir. 1988); United States v. Stitzer, 785 F.2d 1506, 1514 n.4 (11th Cir. 1986), or a contention that they were false. United States v. Stitzer, supra.
Ground One is due to be denied because it plainly appears from record that Petitioner is notentitled to relief.
Ground Two: "Petitioner is Actually and Factually Innocent of his Conviction Because of the Unconstitutionality of the Maritime Drug Law Act in Light of United States v. Bellaizac-Hurtado"
Relying again on United States v. Bellaizac-Hurtado, Petitioner contends that he is innocent because Congress exceeded its constitutional authority in enacting the MDLEA and therefore the district court was without jurisdiction. Petitioner's argument is essentially that his drug trafficking activities did not constitute a crime because Congress did not have the authority to proscribe drug trafficking on the high seas. This contention lacks arguable merit.
Petitioner is correct that a grant of jurisdiction by Congress to the district courts extends only to offenses against the laws of the United States. United States v. Mcintosh, 704 F.3d 894, 902 (11th Cir. 2013) (). If Petitioner is correct that enactment of the MDLEA exceeded Congress's constitutional authority, he was convicted of a non-offense over which the district court had no jurisdiction. See United States v. Meacham, 626 F.2d 503 (5th Cir. 1980); United States v. Peter, 310 F.3d 709 (11th Cir. 2002). That is simply not the case, however.
As noted, controlling precedent in this Circuit has expressly rejected the claim that enactment of the MDLEA exceeded Congress's constitutional authority. United States v. Estupinan, supra. Petitioner can therefore make no showing of lack of jurisdiction or actual innocence. And to the extent Petitioner's makes an "as applied" challenge to the MDLEA, for the reasons discussed with respect to Ground One, that claim has no merit. Moreover, by pleading guilty, Petitioner...
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