Sustache-Rivera v. U.S.

• Decision Date: 09 May 2000
• Docket Number: SUSTACHE-RIVER,V,PETITIONE,No. 99-2128,99-2128
• Citation: 221 F.3d 8
• Parties: (1st Cir. 2000) DAVIDUNITED STATES OF AMERICA, RESPONDENT. . Heard:
• Court: U.S. Court of Appeals — First Circuit

Page 8

221 F.3d 8 (1st Cir. 2000)

DAVID SUSTACHE-RIVERA, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT.

No. 99-2128.

United States Court of Appeals, For the First Circuit.

Heard: May 9, 2000.

Decided: July 25, 2000.

[Copyrighted Material Omitted] Christopher R. Goddu, with whom Willcox, Pirozzolo & McCarthy was on brief, for petitioner.

Michelle Morales, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief, for respondent.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

Lynch, Circuit Judge.

In March 1993, a jury convicted David Sustache-Rivera (Sustache) of three separate carjackings in violation of 18 U.S.C. § 2119. If a carjacking results in "serious bodily injury," then the statute allows for a greater length of imprisonment. The judge found that one of the carjackings had resulted in serious bodily injury and so imposed a greater sentence. All told, Sustache was sentenced to thirty-seven years in prison for the crimes.¹ He was twenty years old at the time. His convictions were affirmed on appeal. See United States v. Sustache-Rivera, 39 F.3d 1166 (1st Cir. 1994) (unpublished). Sustache's first habeas petition under 28 U.S.C. § 2255 was dismissed by the district court.² He now requests a certificate of appealability from this court so that he may file a second § 2255 petition. We decline to issue the certificate and dismiss the case.

I.

Sustache was charged with three separate carjackings under 18 U.S.C. § 2119. One of the counts specifically charged Sustache under 18 U.S.C. § 2119(2) -- the subsection that allows a longer sentence if the carjacking results in serious bodily injury -- and detailed the injuries one of the victims, Dr. Jose Aurelio Davila-Sanchez, received as a result of being shot three times. At trial, Davila-Sanchez's brother, Jose Miguel Betancourt-Sanchez, who was with Davila-Sanchez during the carjacking, testified regarding the injuries they received. According to his testimony, both men had been shot at many times. After an initial wave of gunfire, Davila-Sanchez was left bleeding and asking to be taken to the hospital. Then came a second wave of gunfire, during which Betancourt-Sanchez attempted to protect his brother from further injury; but both were shot, one bullet penetrating Betancourt-Sanchez and then entering his brother's stomach. The Pre-Sentence Report revealed that, as a result of his wounds, Davila-Sanchez's leg had to be amputated and he lost the use of his left hand.

The question of whether serious bodily injury occurred in the carjacking was not submitted to the jury, but was decided by the judge at sentencing. At the time of Sustache's trial and direct appeal, the law of this circuit was silent as to whether the question of serious bodily injury was an element of the crime to be determined by a jury or was merely a sentencing enhancement to be determined by the judge. We later held that the occurrence of serious bodily injury was merely a sentencing enhancement. See United States v. Rivera-Gomez, 67 F.3d 993, 1000 (1st Cir. 1995). Other circuits that had decided the question shared this view. See, e.g., United States v. Oliver, 60 F.3d 547, 552 (9th Cir. 1995); United States v. Williams, 51 F.3d 1004, 1009 (11th Cir. 1995). The Supreme Court, however, held in Jones v. United States, 526 U.S. 227, 251-52 (1999), that the serious bodily injury requirement in 18 U.S.C. § 2119(2) is an element of a carjacking offense and so must be submitted to the jury.

Sustache, naturally, now wants to raise the claim that his sentence should be vacated because the judge, not the jury, determined the serious bodily injury element. The claim concerns not only who should have decided the matter, but also what the government's burden of proof should have been. An element of a crime must be proven by the government beyond a reasonable doubt. See id. at 232. By contrast, sentencing enhancements are decided upon a preponderance of the evidence. See United States v. Lombard, 72 F.3d 170, 176 (1st Cir. 1995).

The question here is whether Sustache has a vehicle to raise the claim pursuant to 28 U.S.C. § 2255, either as a first petition, or by permission of this court as a second or successive petition or a petition falling within the section's savings clause.³ Congress imposed a number of bars to federal prisoners' efforts to obtain post-conviction relief when it enacted AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996, Pub. Law No. 104-132, 110 Stat. 1214, which governs this petition. Counting literally, this is Sustache's second § 2255 petition. Sustache filed a pro se petition under § 2255 in 1997 that raised a claim of ineffective assistance of counsel but did not raise the Jones claim.⁴ That petition was dismissed on its merits by the district court. Sustache's current attempt to correct the error that occurred at his trial is limited by AEDPA. AEDPA § 105 amended 28 U.S.C. § 2255 so that "second or successive" § 2255 petitions will not be heard unless the court of appeals grants leave to file the petition. See 28 U.S.C. §§ 2255, 2244(b)(3). The court may not grant such leave unless the petition is based on:

a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.⁵

28 U.S.C. § 2255.

Sustache's efforts to apply the new Jones rule are thus stymied unless: (1) this petition is considered to be a first petition; or (2) he meets the gatekeeping requirements for second or successive petitions; or (3) his claim fits within § 2255's savings clause for cases in which § 2255 provides an "inadequate or ineffective" remedy.⁶

II.

Sustache asserts that this petition should be considered a first petition because the new Jones rule was not available to him earlier. Treating this petition as a first petition has both substantive and procedural advantages for him. Substantively, if this were a first petition, he could raise a claim that his sentence "was imposed in violation of the laws of the United States." 28 U.S.C. § 2255. In other words, he would not be restricted to constitutional claims. Procedurally, he would not need permission from this court to file such a claim.

We also consider whether, assuming Sustache's petition should be treated as a second or successive § 2255 petition, his petition meets the requirements for such petitions in light of the Supreme Court's recent decision in Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348, ___ L.Ed.2d ___ (2000), issued after oral argument in this case.

Sustache's final argument is that his claim fits within the savings clause of § 2255. If a petitioner's § 2255 remedy is inadequate or ineffective, then he may apply for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, the general habeas corpus statute. See 28 U.S.C. § 2255. Recognizing the danger that the exception could easily swallow the rule and frustrate Congress' purpose in enacting AEDPA, the courts of appeals have read this exception narrowly. Nonetheless, Sustache says that fairness demands he at least be given the opportunity to present his claims and that, therefore, his claim should be found to fit within the savings clause. Otherwise, he says, § 2255 leaves him trapped in a procedural morass: even though Jones now makes clear that the trial court erred (resulting, he says, in a longer prison sentence), he cannot correct this error merely because he failed to raise it in his first § 2255 petition, at a time when he had no reason to anticipate Jones.

Because this area is a procedural maze for parties and courts, an outline of our holdings in this case may be helpful:

1. We are not inclined to view Sustache's petition as a first petition. Even if it were, it would fail for the reasons stated below.

2. Sustache's petition does not meet the gatekeeping requirements of § 2255 for second or successive petitions; this is so even if Jones does represent a new rule of constitutional law, because the Supreme Court has not made Jones retroactive to cases on collateral review.

3. Whether Sustache's petition falls within § 2255's savings clause is a matter we need not resolve.

4. Because Sustache did not present the Jones claim before, he must show cause and prejudice to present it now, and Sustache has no plausible claim of prejudice.

A. Is This a First or a "Second or Successive" Petition?

Sustache concedes that his petition is literally second, but says that an exception should be carved out for claims that could not reasonably have been presented earlier.

Not every literally second or successive § 2255 petition is second or successive for purposes of AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998). The Supreme Court and this court have outlined several situations in which a later petition is not "second or successive:" (1) where the later petition raises the same grounds as a previous petition that had been dismissed as premature, see id.; (2) where a state prisoner's later petition raises the same grounds as a previous petition that had been dismissed for failure to exhaust state remedies, see Slack v. McDaniel, ___ U.S .___, ___ _ ___, 120 S.Ct. 1595 1604-05 (2000); Dickinson v. Maine, 101 F.3d 791 (1st Cir. 1996); (3) where the earlier petition terminated without a judgment on the merits, see Pratt v. United States, 129 F.3d 54, 60 (1st Cir. 1997); or (4) where the later petition attacks a different criminal judgment, such as where a prisoner who has successfully brought a first habeas claim is retried, reconvicted, and resentenced and then attacks the new judgment, see Pratt, 129 F.3d at 62; see also Shepeck v. United States, 150 F.3d 800, 801 (7th Cir. 1998) (later petition presenting issues that were unripe until re-sentencing that resulted from first petition not second or successive).⁷ The...