U.S. v. Nelson, Crim. No. 89-20081-06-KHV.

• Decision Date: 07 November 2001
• Docket Number: Civ. No. 01-3264-KHV.,Crim. No. 89-20081-06-KHV.
• Parties: UNITED STATES of America, Plaintiff, v. Dana NELSON, Defendant.
• Court: U.S. District Court — District of Kansas

Page 1181

177 F.Supp.2d 1181

UNITED STATES of America, Plaintiff, v. Dana NELSON, Defendant.

Crim. No. 89-20081-06-KHV.

Civ. No. 01-3264-KHV.

United States District Court, D. Kansas.

November 7, 2001.

Leon J. Patton, Office of United States Attorney, Kansas City, KS, for Plaintiff.

Dana Nelson, Oakdale, LA, Pro se.

MEMORANDUM AND ORDER

VRATIL, District Judge.

This matter comes before the Court on defendant's the Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. # 524) filed June 28, 2001. For reasons set forth below, defendant's motion is overruled.

Factual Background

On October 18, 1989, a grand jury returned a sixteen-count indictment. See Indictment (Doc. # 55). Count 1 charged defendant with conspiracy to possess cocaine base with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count 6 charged defendant with possession of cocaine base with the intent to distribute within 1000 feet of a public school in violation of 21 U.S.C. § 845a(a) (now codified at 21 U.S.C. § 860).

On January 4, 1990, a jury convicted defendant on Counts 1 and 6. See Verdict (Doc. # 192) filed January 4, 1990. The Court did not require the jury to make any finding as to the drug quantities involved in each count. At sentencing, the Court enhanced defendant's sentence two levels for possession of a firearm and two levels for obstruction of justice. See Transcript Of Sentencings Of William Daniel Nelson, Harvey D. Curry, Dana Nelson, Burlon Davis and James Moss (Doc. # 334) filed June 29, 1990 at 31-32. The Court predicated defendant's base offense level on 500 grams of cocaine base.¹ See id. at 29-30. Defendant's total offense level was 40, with a criminal history category I, resulting in a sentencing range of 292 to 365 months. See id. at 33-34. On each count, the Court sentenced defendant to a term of imprisonment of 292 months and a term of supervised release of six years, to be served concurrently. See Judgment Including Sentence (Doc. # 263) filed April 11, 1990. Defendant appealed his conviction and the Tenth Circuit affirmed. See United States v. Nelson, 941 F.2d 1213, 1991 WL 163061 (10th Cir. Aug. 23, 1991), cert. denied, 502 U.S. 1044, 112 S.Ct. 902, 116 L.Ed.2d 803 (1992).

On June 28, 2001, defendant filed the instant motion pursuant to 28 U.S.C. § 2255. Defendant claims that his conviction should be vacated and that he should be resentenced in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In particular, defendant argues that the jury, not the Court, should have determined the amount of cocaine base, whether defendant possessed a firearm, and whether he obstructed justice.

Analysis

I. Procedural Bar

A. Whether Defendant's Claim Is Precluded By Teague

The Court first examines whether Apprendi applies to cases on collateral review. Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), only two types of new rules may be applied retroactively to cases on collateral review: (1) a rule which places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and (2) a watershed constitutional rule of criminal procedure which requires the observance of "those procedures that ... are implicit in the concept of ordered liberty." Id. at 307, 311, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)). A rule that qualifies under the "watershed" exception "must not only improve accuracy, but also `alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060). "The scope of the Teague exceptions must be consistent with the recognition that `[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.'" Sawyer, 497 U.S. at 242, 110 S.Ct. 2822 (quoting Teague, 489 U.S. at 309, 109 S.Ct. 1060).

Apprendi clearly presents a "new" rule of constitutional criminal procedure. See United States v. Heckard, 238 F.3d 1222, 1234 (10th Cir.2001). The first Teague exception does not apply, however, because Apprendi did not place certain kinds of conduct beyond the power of the criminal law-making authority to proscribe. As to the second Teague exception for watershed rules of criminal procedure, numerous federal courts have held that Apprendi does not satisfy this exception. See McCoy v. United States, 266 F.3d 1245, 1254-55 (11th Cir.2001); United States v. Moss, 252 F.3d 993 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 147 (4th Cir.2001), petition for cert. filed, No. 01-6715 (Oct. 9, 2001); Jones v Smith, 231 F.3d 1227, 1238 (9th Cir.2000); United States v. Moss, 137 F.Supp.2d 1249, 1252 (D.Kan.2001).²

The Court agrees with the reasoning of those courts which have found that Apprendi does not qualify as a watershed rule of criminal procedure. Apprendi announced two new rules of criminal procedure: (1) other than the fact of a prior conviction, the jury, not the judge, must determine any facts that increase the penalty for a crime beyond the statutory maximum and (2) the jury must find such facts beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. These rules do not alter our basic understanding of the bedrock procedural requirements essential to a fair proceeding (such as the right to counsel). See Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), to illustrate type of rule within watershed exception); Levan v. United States, 128 F.Supp.2d 270, 278 (E.D.Pa. 2001) ("Shifting an element of the offense from jury to judge and utilizing a preponderance rather than a beyond a reasonable doubt standard does not implicate fundamental fairness or relate to the accuracy of the conviction or sentence."); see also O'Dell v. Netherland, 521 U.S. 151, 167, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (defendant's right to advise capital sentencing jury about parole eligibility not watershed rule); Lambrix v. Singletary, 520 U.S. 518, 539-40, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (defendant's right not to have jury consider certain aggravating circumstances not watershed rule); Sawyer, 497 U.S. at 244, 110 S.Ct. 2822 (procedural enhancement to accuracy of capital sentencing announced in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) not watershed rule); Andrews v. Deland, 943 F.2d 1162, 1187 (10th Cir.1991) (constitutional right to lesser included offense instruction in capital cases not watershed rule), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992).

In Teague, Justice O'Connor explained the extremely limited nature of the exception for watershed rules of criminal procedure:

Finally, we believe that Justice Harlan's concerns about the difficulty in identifying both the existence and the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished.

Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also of the view that such rules are "best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus—that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods." Rose v. Lundy, 455 U.S. 509, 544, 102 S.Ct. 1198, 1216-1217, 71 L.Ed.2d 379 (1982) (STEVENS, J., dissenting) (footnotes omitted).

Teague, 489 U.S. at 313-14, 109 S.Ct. 1060.

The Tenth Circuit has not decided whether Apprendi should be applied retroactively to cases on collateral review, but it has reviewed such claims on direct appeal only for "plain error." See United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 2575, 150 L.Ed.2d 738 (2001). The plain error standard applies "[w]here the law was settled at the time of trial, [but] clearly contrary to the law on appeal." Id. The Tenth Circuit has noted that it will "exercise its discretion and notice such error where it either (a) results in the conviction of one actually innocent, or (b) seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quotation marks, alteration, and citations omitted). Other Circuits have also reviewed Apprendi claims under a plain error or harmless error standard. See, e.g., United States v. Parolin, 239 F.3d 922, 930 (7th Cir.2001); United States v. Baltas, 236 F.3d 27, 40 (1st Cir.2001); United States v. Kinter, 235 F.3d 192, 198 (4th Cir.2000); United States v. Gerrow, 232 F.3d 831, 833 (11th Cir.2000), cert. denied, ___ U.S. ___, 122 S.Ct. 75, ___ L.Ed.2d ___ (2001). The standard for plain error review (i.e. errors that seriously affect the fairness of a proceeding) is similar to the requirements of a watershed principle under Teague (i.e. rules that alter our understanding of procedural elements essential to the fairness of a proceeding). See Pittman, 120 F.Supp.2d at 1270-71. To date, very few cases have been reversed on direct appeal, which supports the Court's conclusion here that Apprendi is not a "watershed" rule of criminal procedure.³ See id.

B. Failure To Raise Claim On Direct Appeal

Defendant's Apprendi claims also are procedurally barred because he failed to...