Sanabria v. US, Civil No. 95-1579 (JAF). Criminal No. 92-054.

• Decision Date: 15 February 1996
• Docket Number: Civil No. 95-1579 (JAF). Criminal No. 92-054.
• Citation: 916 F. Supp. 106
• Parties: Amador Irizarry SANABRIA, Petitioner, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

916 F. Supp. 106

Amador Irizarry SANABRIA, Petitioner, v. UNITED STATES of America, Defendant.

Civil No. 95-1579 (JAF). Criminal No. 92-054.

United States District Court, D. Puerto Rico.

February 15, 1996.

COPYRIGHT MATERIAL OMITTED

Amador Sanabria, pro se.

Jose A. Quiles Espinosa, Senior Litigation Counsel, Guillermo Gil, United States Attorney, District of Puerto Rico, San Juan, PR, for Defendant.

OPINION AND ORDER

FUSTE, District Judge.

I.

Amador Irizarry Sanabria has petitioned this court under 28 U.S.C. § 2255 (1988) for a writ of habeas corpus to vacate or amend his sentence of October 26, 1992. Petitioner claims that he was incorrectly deemed to have used or carried a firearm in relation to the drug trafficking crime of which he was convicted and that, consequently, his sentence was mistakenly enhanced under 18 U.S.C. § 924(c)(1) (1988).¹ Having reviewed both the petition and pertinent case law, we grant the petition. The facts of the case are reported in United States v. Andújar, 49 F.3d 16 (1st Cir.1995).

II.

Petitioner alleges that the court incorrectly deemed him to have been in possession of a firearm for purposes of section 924(c)(1) because (1) the recovered weapon was never subjected to "normal testing,"² and (2) defendant did not use or attempt to use the weapon in the course of the drug trafficking for which he was convicted. The petitioner admits that confidential informant Linder conditioned his participation in the conspiracy to import narcotics on receipt of a firearm with which to furnish himself personal protection. Docket Document No. 1, p. 2 (Defendant's brief in support of his petition) (citing Tr. 88). Defendant provided the requested firearm to confidential informant Linder with the expectation that, should it prove necessary, the weapon would be used by confidential informant Linder to protect himself in the course of the narcotics transaction.

III.

Petitioner apparently acknowledges that he was in possession of the firearm until he gave it to confidential informant Linder, so any proof from so-called "normal testing" that petitioner had possessed the weapon is surely superfluous. Moreover, neither our review of the case law nor the petition points to any case establishing an independent, procedural right to "normal testing" such that, had the government failed to test accordingly, the Due Process Clause would render a conviction under section 924 unconstitutional.

IV.

A. "Use" Under Section 924(c)(1)

Petitioner also contends that, though he had given a firearm to confidential informant Linder for use in a drug trafficking crime, petitioner had neither "used" nor "carried" the weapon as required by the statute. It had long been the rule in this Circuit that, in order for a gun to be "used" in relation to a drug trafficking offense, the gun, at least, must have facilitated or have had the potential of facilitating a drug trafficking offense. Under this test for a so-called "facilitative nexus," the mere fact that the firearm might have facilitated the drug trafficking offense by emboldening one or more of the offenders sufficed to establish "use" in relation to the drug-trafficking offense. United States v. Eaton, 890 F.2d 511, 512-13 (1st Cir.1989) (applying rule and citing cases). Likewise, the fact that the firearm was in the hands of a co-conspirator, not the petitioner himself, did not mean that, for purposes of section 924(c)(1), petitioner had not "used" the weapon, so long as petitioner "exercised dominion and control over the object, either directly or through others." United States v. Ramírez-Ferrer, 1995 WL 237041, *5 (1st Cir.1995) (citing United States v. García, 983 F.2d 1160, 1164 (1st Cir.1993)).

On December 6, 1995, the United States Supreme Court decided Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), rejecting the "accessibility and proximity" test adopted by the Court of Appeals for the District of Columbia in United States v. Bailey, 36 F.3d 106 (D.C.Cir.1994). The "accessibility and proximity" test provided that, for purposes of section 924(c)(1), the firearm need only have been accessible or proximate for a defendant to have "used" the weapon to facilitate or embolden the predicate offense. Bailey now requires that to prove "use" for purposes of section 924(c)(1), "the Government must show active employment of the firearm" by the defendant or a conspirator. Bailey, ___ U.S. at ___, 116 S.Ct. at 506. "Use" now includes, but is not limited to, brandishing, displaying, bartering, mentioning, or threatening with the firearm; it does not include the mere placing of a firearm at or near the site of a drug crime. Id. at ___, 116 S.Ct. at 508.

Given the similarity between the "accessibility and proximity" test and the "facilitative nexus" test adopted in this Circuit, we deem Bailey to have effected a change of law in this Circuit, rejecting important elements of the "facilitative nexus" test under which petitioner was sentenced. As a preliminary matter, then, we must decide whether to review the petition under the "facilitative nexus" test or under the rule announced in Bailey. Teague v. Lane, 489 U.S. 288, 300-01, 109 S.Ct. 1060, 1069-70, 103 L.Ed.2d 334 (1989) (before deciding general retroactivity of new rule, court should preliminarily determine retroactivity in case at issue).

B. Retroactivity of Bailey

As we noted in Lebon v. United States, 899 F.Supp. 722, 727 (D.Mass.1995), the Supreme Court decision of Griffith v. Kentucky, 479 U.S. 314, 320-27, 107 S.Ct. 708, 711-15, 93 L.Ed.2d 649 (1987), stands for the proposition that new rules of criminal law should have retroactive effect upon all cases pending on direct review. As we also noted in Lebon, however, Griffith does not purport to provide the same rule for cases under collateral review. Id. In Teague v. Lane, 489 U.S. 288, 290, 109 S.Ct. 1060, 1063-64, 103 L.Ed.2d 334 (1989), the Supreme Court announced its new rule of retroactivity, patterned on a rule formulated by Justice Harlan in Mackey v. United States, 401 U.S. 667, 681-95, 91 S.Ct. 1171, 1174-82, 28 L.Ed.2d 388 (1971). This rule provides that a new constitutional rule of criminal procedure should not be applied retroactively to cases on collateral review unless the new rule (1) places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or (2) requires the observance of those procedures that are implicit in the concept of ordered liberty. Teague, 489 U.S. at 290, 109 S.Ct. at 1063-64.

Though the Court explains in Teague that its rule of retroactivity applies to new constitutional rules of criminal procedure, it remains unclear whether or not Teague also applies to cases, like petitioner's, that involve new rules of nonconstitutional law. Moreover, Teague provides no clear indication of whether or not the Court intended the same rule of retroactivity that it there applied on collateral review of a final state court conviction to apply when reviewing the sentence of a federal convict. These are the issues to which we now turn.

1. Application of Teague to Motions Arising Under Section 2255

In his dissent to Teague, Justice Brennan noted that the Court did not indicate whether or not it intended that the rule it there announced would extend to claims brought by federal, as well as state prisoners. Teague, 489 U.S. at 327 n. 1, 109 S.Ct. at 1084 n. 1. We acknowledge that there is substantial evidence in the legislative history of section 2255 that a federal conviction or sentence is not "final" within the meaning of the statute until disposition of the habeas petition. See James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 25.6 n. 17, at 787-86 (2d ed. 1994). See also United States v. Payne, 894 F.Supp. 534 (D.Mass.1995) ("the difference in the nature of proceedings under sections 2254 and 2255 precludes application of Teague to federal prisoners"). Since Teague applies only to cases in which conviction has become "final", its rule of retroactivity would seem never to apply to petitions filed under section 2255. But the analysis must go further.

Whatever meaning Congress may have intended for the term "final", we are concerned less with the construction of the term as it appears in section 2255 as with the meaning that the Supreme Court ascribed to the term when deciding Teague, for it is Teague, not the statute, that we now interpret. And here, for once, the Supreme Court has left little ambiguity, Justice Brennan notwithstanding. In Griffith, from which Teague was later derived, the Court explained:

By "final", we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.

Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. at 712 n. 6. We deem this language to leave little room for a special rule of retroactivity applicable only to section 2255 petitioners. And, though this language is found only in dicta, we have no reason to believe that the Court has subsequently revised its definition of the term "final" in Teague and its progeny.

Should there remain any doubt that the Supreme Court intended that Teague apply to section 2255 petitions, we have the words of Justice Harlan himself:

I realize, of course, that state prisoners are entitled to seek release via habeas corpus under 28 U.S.C. § 2241, while federal prisoners technically utilize what is denominated a motion to vacate judgment under 28 U.S.C. § 2255. However, our cases make these remedies virtually congruent and the purpose of substituting a motion to vacate for the traditional habeas action in the federal system was simply to alter one minor jurisdictional basis for the writ. See United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952). As I do not propose to make any distinction, for

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