U.S. v. Washington
| Decision Date | 16 July 2003 |
| Docket Number | No. CIV.A. 01-2549.,No. CR.A.98-382 RWR.,CR.A.98-382 RWR.,CIV.A. 01-2549. |
| Parties | UNITED STATES of America, v. Christopher G. WASHINGTON, Movant. |
| Court | U.S. District Court — District of Columbia |
Kenneth W. Ravenell, Schulman, Treem, Kaminkow & Gilden, P.A., Baltimore, MD, Daniel E. Ellenbogen, Washington, DC, Kenneth M. Robinson, Robinson Law Firm, Washington, DC, for Defendant.
Charles Joseph Harkins, Jr., Martin Dee Carpenter, Judson Earle Lobdell, U.S. Attorney's Office, Washington, DC, for U.S.
Christopher Washington was sentenced to 262 months in prison following his guilty plea to unlawful possession with intent to distribute fifty grams or more of cocaine base. He now moves under 28 U.S.C. § 2255 (2000) to vacate, set aside, or correct his sentence. The government has moved to dismiss, asserting that Washington's motion is untimely. Because Washington's § 2255 application was not filed within the one-year statute of limitations and the circumstances do not justify equitable tolling, Washington's motion will be dismissed without a hearing as untimely.
Washington was charged with unlawful possession with intent to distribute fifty grams or more of cocaine base (Count One), 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (2000); unlawful possession of a firearm and ammunition by a convicted felon (Count Two), 18 U.S.C. § 922(g)(1); and using and carrying a firearm during a drug trafficking offense (Count Three). 18 U.S.C. § 924(c)(1). While represented by counsel, Washington pled guilty to Count One of the indictment. (Tr. of Apr. 13, 1999, at 56, 61.) The Court informed Washington that if he pled guilty to unlawful possession with intent to distribute fifty grams or more of cocaine base, he could receive a sentence of up to life in prison. (Id. at 44.) Washington acknowledged that he understood the terms of the plea agreement. (Id. at 42-44.) The government proffered that it could prove beyond a reasonable doubt, and Washington acknowledged as true, that during a traffic stop, Washington appeared to place something on the floorboard of the front passenger seat in which he was seated, and the police recovered 116.1 grams of cocaine base and a scale that fell to the ground when Washington was taken out of the car; an operable loaded pistol on the car floor at Washington's seat; and a list of drug customers and prices, and $1,204 in cash, on Washington's person. (Id. at 57-58.) Washington admitted during his plea that he had possessed about one hundred sixteen grams of crack cocaine and had intended to sell it. (Id. at 59.)
At the sentencing hearing on March 6, 2000, the Court found that partly because of the quantity of drugs Washington had possessed, he was a career offender under § 4B1.1 of the U.S. Sentencing Guidelines with an offense level of 37 and a criminal history category of VI. After a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1, Washington's adjusted offense level was 34, yielding a sentencing range of 262 to 327 months. (Pre-Sentence Investigation Report at 16.) The Court sentenced Washington to 262 months in prison. (J. of Mar. 10, 2000.) The Court warned Washington that if he wanted to appeal his sentence, he had to file his notice of appeal within ten days of judgment being entered. Judgment was entered on March 20, 2000, but Washington filed no notice of appeal. On November 30, 2001, Washington filed this § 2255 motion to vacate, set aside, or correct sentence.1
Section 2255 allows a prisoner to move a court to vacate, set aside, or correct his sentence on the basis that it was improperly imposed.2 Before the merits of a § 2255 motion can be heard, a court must first determine whether the motion is timely. See United States v. Cicero, 214 F.3d 199, 202 (D.C.Cir.2000). The motion is timely if filed within the applicable statute of limitations or if the limitation period is subject to equitable tolling. Id.
Section 2255 is subject to a one-year statute of limitations. The limitations time period:
run[s] from the latest of — (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; [or] (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review ....
Cicero, 214 F.3d at 200-01 (quoting § 2255 ¶ 6).
Section 2255 does not explicitly state when a judgment of conviction becomes final. In cases where a criminal defendant does not file a notice of direct appeal within the required ten-day period,3 circuits have held that the proper date for beginning the § 2255 statute of limitations is either the date judgment is entered or the date by which a notice of appeal must be filed. See United States v. Sanders, 247 F.3d 139, 142 (4th Cir.2001) (); United States v. Schwartz, 274 F.3d 1220, 1223-24 & n. 1 (9th Cir.2001) (). In this case, the Court entered judgment against Washington on March 20, 2000, and Washington filed no notice of appeal. His judgment became final, at the latest, on April 3, 2000. Washington did not file his § 2255 motion until November 30, 2001. Because more than nineteen months had passed before Washington filed his motion, the motion is not timely under § 2255 ¶ 6(1).
Washington nevertheless argues that his motion is timely under § 2255 ¶ 6(3) because it is based on a right newly recognized by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Court held that under the Fifth, Sixth, and Fourteenth Amendments, any fact other than a prior conviction that increases a defendant's penalty beyond the statutory maximum for the relevant crime must be submitted to a jury and proved beyond a reasonable doubt. Id. at 476, 490, 120 S.Ct. 2348. Washington argues that his sentence violated Apprendi because it was enhanced based on the Court's finding by a preponderance of the evidence that he possessed over fifty grams of cocaine base.
Even if this sentence enhancement did violate Apprendi, Washington would not be entitled to relief under § 2255 ¶ 6(3). Apprendi was decided on June 26, 2000, and Washington filed this motion seventeen months later on November 30, 2001. Thus, Washington did not file within one year of "the date on which the right asserted was initially recognized by the Supreme Court." § 2255 ¶ 6(3).
Washington may also be barred from bringing his motion under § 2255 ¶ 6(3) since Apprendi is unlikely to apply retroactively to cases on collateral review. An initial § 2255 motion, such as Washington's, may be brought where a "right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." § 2255 ¶ 6(3). Neither the Supreme Court nor the D.C. Circuit has yet applied Apprendi retroactively to an initial collateral attack. See United States v. Hicks, 283 F.3d 380, 389 (D.C.Cir.2002). Indeed, seven circuits have held that Apprendi does not retroactively apply to an initial motion for collateral review in federal court. See United States v. Walls, 215 F.Supp.2d 159, 162-63 (D.D.C.2002) (citing Curtis v. United States, 294 F.3d 841, 844 (7th Cir.2002); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.2002); McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001); United States v. Moss, 252 F.3d 993, 1001 (8th Cir.2001); United States v. Sanders, 247 F.3d 139, 151 (4th Cir.2001); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir.2000); Goode v. United States, 39 Fed. Appx. 152 (6th Cir.2002)). Nevertheless, since some decisions suggest that a district court itself has authority to make newly recognized rights "applicable to cases on collateral review" under § 2255 ¶ 6(3), see Pryor v. United States, 278 F.3d 612, 615-16 (6th Cir.2002); Ashley v. United States, 266 F.3d 671, 674 (7th Cir.2001), a brief discussion of Apprendi's retroactivity is warranted.4
Apprendi established a new constitutional rule of criminal procedure. It changed the fact-finder from judge to jury and the burden of proof from preponderance of the evidence to beyond a reasonable doubt for any fact other than a prior conviction that increases the penalty for a crime beyond the statutory maximum. See e.g., Curtis, 294 F.3d, at 843; Mora, 293 F.3d at 1218-19. Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), new constitutional rules of criminal procedure are not retroactively applicable to cases on collateral review unless one of two exceptions applies. Bousley v. United States, 523 U.S. 614, 619-20, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
The first, limited exception is for new rules forbidding criminal punishment of certain primary conduct [and] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. The second, even more circumscribed, exception permits retroactive application of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.
O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (internal quotations and citation omitted).
The first Teague exception does not apply here because "Apprendi did not decriminalize a class of conduct or...
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