U.S. v. Hernandez

• Decision Date: 02 February 2006
• Docket Number: No. 04-4051.,04-4051.
• Citation: 436 F.3d 851
• Parties: UNITED STATES of America, Appellee, v. Juan Gerardo HERNANDEZ, also known as Chapin, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

436 F.3d 851

UNITED STATES of America, Appellee, v. Juan Gerardo HERNANDEZ, also known as Chapin, Appellant.

No. 04-4051.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2005.

Filed: February 2, 2006.

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Stephen D. Marso, argued, West Des Moines, IA, for appellant.

Gary L. Hayward, argued, Asst. U.S. Atty., Des Moines, IA, for appellee.

Before ARNOLD, HANSEN, and MURPHY, Circuit Judges.

HANSEN, Circuit Judge.

Juan Gerardo Hernandez (Hernandez) filed a pro se motion for postconviction relief pursuant to 28 U.S.C. § 2255 after this court affirmed his conviction and 168-month prison sentence for conspiracy to distribute methamphetamine and possession with intent to distribute. See United States v. Hernandez, 16 Fed.Appx. 544 (8th Cir.2001) (unpublished). The district court¹ dismissed his motion but granted a certificate of appealability on several issues. Hernandez's appeal challenges the district court's rulings regarding various sentencing issues and its application of the Federal Rules of Civil Procedure to § 2255 motions. We affirm the judgment of the district court.

I.

After a jury trial, Hernandez was found guilty of conspiring to distribute methamphetamine and possessing methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) & 846. He was sentenced to 168 months of imprisonment, to be followed by five years of supervised release. In his direct appeal, we rejected Hernandez's claims of insufficient evidence, improper determination of drug quantity, and various sentencing errors. Hernandez's July 31, 2002, pro se motion for postconviction relief pursuant to 28 U.S.C. § 2255 set forth three claims: ineffective assistance of counsel for failure to object to the admission of evidence that lacked a proper foundation, unconstitutional sentencing due to the judge's determination of drug amounts, and a sentencing error related to whether methamphetamine was a Schedule III or Schedule II drug for sentencing purposes. Hernandez was appointed counsel in September 2002, and the district court granted him until November 15, 2002, to file an amended motion and brief to supplement his original filings.

The amended materials were filed on November 12, 2002. In them, Hernandez included the ineffective assistance and drug quantity claims from his pro se motion, but he added a second allegation of ineffective assistance of counsel, alleging failure to effectively cross-examine two witnesses. The government filed a motion to dismiss, arguing that while all the claims were meritless, the new claim of ineffective assistance was also untimely and thus barred by the statute of limitations.²

The district court dismissed the newly asserted ineffective assistance claim as untimely and denied the sentencing claim on its merits on June 5, 2003. After conducting an evidentiary hearing on the ineffective assistance of counsel admission of evidence claim, the court also denied it.

On June 30, 2004, Hernandez filed a Motion for Reconsideration/Motion to Amend, asking the district court to reconsider the denial of his claims in light of the Supreme Court's Blakely³ decision and requesting permission to add claims under Blakely. The district court denied this motion on August 4, 2004, finding that Blakely did not apply retroactively to cases on collateral review. On August 9, 2004, Hernandez filed a second motion asking the court for permission to amend and for reconsideration of the Blakely issue, based on this court's panel decision in United States v. Pirani, ___ F.3d ____ (8th Cir.2004), which was vacated on August 16, 2004; and on October 15, 2004, the district court denied Hernandez's second motion for reconsideration and again held that Blakely did not apply retroactively on collateral review.

Hernandez obtained a certificate of appealability from the district court on seven issues: (1) the district court's ruling that there was no Apprendi⁴ violation, (2) the August 4, 2004, ruling by the district court that Blakely did not apply retroactively to cases on collateral review, (3) the district court's October 15, 2004, ruling regarding the retroactivity of Blakely, (4) the court's ruling that Hernandez's claim of ineffective assistance of counsel on cross-examination did not relate back to the original § 2255 claim of ineffective assistance of counsel, (5) the district court's implied ruling that Federal Rule of Civil Procedure 15(c)(2) must be applied to § 2255 motions, (6) the court's finding that there were insufficient grounds for equitable tolling, and (7) the district court's ruling that the United States did not waive the statute of limitations. These issues fall into two basic categories: sentencing issues tied to Apprendi, Blakely, and Booker, and issues related to the Federal Rules of Civil Procedure and the statute of limitations applicable in this case. While we will address each issue Hernandez raises on appeal, we will do so under these two broader categories.

II.

"We review de novo the district court's denial of a section 2255 motion." Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir.2005). "[A]ny underlying fact-findings are reviewed for clear error." United States v. Davis, 406 F.3d 505, 508 (8th Cir.2005).

A. Sentencing Issues

Hernandez argues that the district court erred by holding in the August 4 and October 15, 2004, orders that Blakely (and subsequently Booker) did not apply retroactively to cases on collateral review. After those orders were filed, this court issued its opinion in Never Misses A Shot, where we held that Booker was a new procedural rule that was not of "watershed" importance and that it "does not apply to criminal convictions that became final before the rule was announced." Never Misses A Shot, 413 F.3d at 783. Because this case is before us on collateral review, as it was in the district court, Hernandez's Blakely and Booker claims must fail.

Hernandez also claims that the court failed to apply the principles of Apprendi when he was sentenced and that his term of five years of supervised release violates the Presentment Clause, the Due Process Clause, and the Jury Trial Clause of the United States Constitution. While Hernandez's Booker and Blakely arguments fail for the reasons stated above, Apprendi was decided prior to his conviction, and consequently we look at its application here. We note that Hernandez raised no Apprendi issue in his direct appeal, but the government has not seen fit to raise that procedural default with respect to the pending § 2255 motion. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ("a collateral challenge may not do service for an appeal").

The indictment brought against Hernandez did not charge a specific amount of methamphetamine. In its verdict, however, the jury found him responsible for 500 grams or more of a mixture containing methamphetamine or 50 grams or more of actual methamphetamine. At sentencing, the district court determined that Hernandez was responsible for at least 1.5 kilograms but less than 5 kilograms of a mixture containing methamphetamine. Hernandez contends that because no quantity was charged in the indictment, that part of his sentence which imposes five years of supervised release violates Apprendi because the court determined his sentence based on the court's finding of drug quantity.

The Supreme Court held in Apprendi that any fact, other than a prior conviction, that raises the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Hernandez's "offenses simpliciter" are a violation of 21 U.S.C. § 841(a)(1), possessing methamphetamine with intent to distribute it, and conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846. Although the quantity of methamphetamine involved in either the conspiracy charge or the possession with intent to distribute charge was not alleged in the indictment, the jury determined by its answer to special interrogatories that the amounts involved exceeded 500 grams of a methamphetamine mixture or 50 grams of actual methamphetamine. Those quantity findings, made by the jury using a reasonable doubt standard, triggered the provisions of 21 U.S.C. § 841(b)(1)(A)(viii) which required (at the time Hernandez committed the offenses in 1997 and 1998) a mandatory minimum period of incarceration of five years and a maximum of forty years, together with a mandatory minimum of four years of supervised release. But even if the jury's quantity findings are set aside as part of the analysis, the bare bones offenses that Hernandez was convicted of, that is the offenses in their simplest form, unadorned by any specific quantity allegation or jury quantity finding, exposed him to a maximum sentence of twenty years of confinement and a minimum term of three years of supervised release. See 21 U.S.C. § 841(b)(1)(C) (1997).⁵ That statute specified no maximum term of supervised release, but 18 U.S.C. § 3583(b) set a cap of five years of supervised release for Class A felonies, which include violations of 21 U.S.C. § 841(a). See United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000). Hence, Hernandez's imposed five year term of supervised release does not exceed the statutory maximum authorized by the jury's guilty verdicts (even without reference to its quantity findings). Because no statutory maximum was exceeded, there is no Apprendi violation.⁶

B. Statute of Limitations

Hernandez's conviction was final on October 31, 2001, ninety days after this court issued its ruling on his direct appeal. Thus, he had until October 31, 2002, to file a § 2255 motion for postconviction relief. He timely filed his pro se motion on July 31, 2002. The amended motion, filed on November 12, 2002, was outside the one-year period. As such, any claims raised for the first time in the ...