Mejia v . USA CV-01-104-M 04/30/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Alfredo Luis Mejia, Petitioner
v. Civil N o . 01-104-M Opinion N o . 2001 DNH 084 United States of America, Respondent
O R D E R
Petitioner, Alfredo Mejia, seeks to vacate his conviction
for violating various federal drug laws, asserting that the
indictment in his underlying criminal case was constitutionally
defective. Specifically, he says that in light of the Supreme
Court’s opinion in Apprendi v . New Jersey, 530 U.S. 466 (2000),
the indictment was required (but failed) to include: (1) the
quantity of crack cocaine he was accused of possessing and/or
distributing; and (2) a reference to the pertinent federal
statute(s) imposing the penalties for the crimes with which he
was charged. Because the record conclusively reveals that he is
entitled to no relief, his petition is denied. See 28 U.S.C.
§ 2255. Background
On November 7 , 1995, Mejia pled guilty to seven counts of a
superceding indictment charging him with violations of federal
drug laws: one count of conspiracy to distribute and to possess
with the intent to distribute cocaine and cocaine base (also
known as “crack”); and six counts of unlawful distribution of
cocaine and cocaine base. On February 6, 1996, the court
sentenced Mejia to 120 months of incarceration, followed by a
five year term of supervised release.
Pursuant to 28 U.S.C. § 2255, Mejia then sought habeas
corpus relief, saying the government breached the terms of his
plea agreement and claiming his appointed counsel provided
ineffective assistance in violation of his Sixth Amendment
rights. The court concluded that Mejia was not entitled to
relief on either ground, with one possible exception:
Petitioner’s ineffective assistance claim can fairly be read to include a claim that the Guideline Sentencing Range calculation was incorrect, because drug quantities, related to “relevant conduct” that occurred prior to the conspiracy offense charged in Count I , were improperly used to determine the ten year mandatory minimum sentence applicable to Count I . That ten year mandatory minimum resulted in a GSR (Total Offense Level 2 9 , Criminal History Category I ) of 120
2 to 121 months of imprisonment. It appears that the mandatory minimum sentence applicable to Count I (based only on drug quantities relevant to the offense of conviction) should have been 5 years, not ten (i.e. excluding the pre-conspiracy relevant conduct drug quantity). Thus, the GSR should have been 97 to 121 months, not 120 to 121 months.
Mejia v . United States, Civil N o . 97-424-M, at 1-2 (D.N.H. Jan.
2 9 , 1998). Accordingly, the court ordered that notice of the
petition be served upon the United States Attorney and directed
that h e ,
respond on or before February 2 0 , 1998, advising the court as to the government’s position relative to the court’s intention to grant relief by correcting petitioner’s sentence to imprisonment, that i s , reducing it from 120 months to the lowest point in the applicable guideline range (97 months), thereby insuring that no prejudice results from the apparent calculation error.
Id. at 2 . The government responded, saying that it did not
object to the court’s proposal to resentence Mejia to 97 months
of incarceration. On February 2 7 , 1998, the court granted
Mejia’s petition to vacate his sentence, resentenced him to a 97
month term of imprisonment, and reimposed a 5-year term of
3 supervised release.1 On March 2 1 , 2001, Mejia filed the petition
for habeas corpus relief currently before the court.
Discussion
I. Second or Successive Petitions for Habeas Relief.
Under 28 U.S.C. § 2255, as amended by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), a federal inmate may file
1 It appears that the term of supervised release imposed on Mejia was in excess of that permitted by law and that he should have been sentenced to no more than three years of supervised release. See U.S.S.G. § 5D1.2 (Nov. 1 , 1995). That error was the product of an incorrect interpretation of the applicable Sentencing Guidelines that affected a significant number of defendants sentenced in this district during a particular time period, rather than any Apprendi issue. Although Mejia has not raised that issue in his petition, it will be remedied in due course anyway. This court has taken steps to insure that the term of supervised release imposed on Mejia and other affected defendants is correct. When it was discovered that a number of criminal defendants had erroneously been sentenced to terms of supervised release in excess of those provided by 21 U.S.C. § 841(b)(1)(C) and U.S.S.G. § 5D1.2, the judges of this court issued procedural orders to all affected parties. Each affected defendant was notified of the error and told that at least two weeks prior to his or her release from prison, the United States Probation Office will file, and the court will grant, a request that the term of supervised release imposed on the defendant be reduced to a level consistent with the applicable Guideline requirements (in this case from five years to three years). Thus, the error concerning Mejia’s term of supervised release will be corrected before he begins serving that aspect of his sentence.
4 a second or successive § 2255 petition only if the court of
appeals first certifies that the petition is based on either:
(1) newly discovered evidence that, if proved and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255. “This statutory directive means that a
district court, faced with an unapproved second or successive
habeas petition, must either dismiss i t , or transfer it to the
appropriate court of appeals.” Pratt v . United States, 129 F.3d
5 4 , 57 (1st Cir. 1997) (citations omitted). 2
Anticipating that his request for relief might constitute a
second or successive habeas corpus petition and seeking to avoid
2 Of course, not every historically second or successive habeas corpus petition is necessarily “second or successive” for purposes of § 2255. See generally Sustache-Rivera v . United States, 221 F.3d 8 , 12-13 (1st Cir. 2000) (discussing several circumstances in which a subsequent petition for habeas corpus relief is not deemed “second or successive” under § 2255), cert. denied, 121 S.Ct. 1364 (2001). As discussed more fully below, however, it is not entirely clear whether Mejia’s petition falls within the bounds of any arguably applicable exception(s).
5 the requirements applicable to such petitions under § 2255, Mejia
asserts that his current petition for habeas relief is brought
pursuant to 28 U.S.C. § 2241. See Petitioner’s letter to the
Clerk of Court (April 5 , 2001) (“My petition is not a § 2255 and
thus, you should not file it under same. I implore you to file
my petition under the original habeas corpus writ, § 2241.”).
II. Construing Mejia’s Petition.
A. The petition is Not Properly Brought under § 2241.
Mejia might avail himself of the remedies available under
§ 2241 if he were to challenge the execution (rather than the
validity) of his sentence. See United States v . DiRusso, 535
F.2d 673, 674-75 (1st Cir. 1976) (“Section 2255, however, does
not grant jurisdiction over a post-conviction claim attacking the
execution, rather than the imposition or illegality of the
sentence. . . . The proper vehicle for attacking the execution of
[a] sentence . . . is 28 U.S.C. § 2241.”) (emphasis supplied).
Here, however, Mejia attacks the legality of his underlying
federal conviction, saying it was obtained based upon a
constitutionally deficient indictment. Alternatively, he
arguably challenges the legality of his amended 97 month
6 sentence. In either event, however, it is plain that he
challenges the “imposition or illegality” of his imprisonment,
rather than the “execution” of his sentence.
Consequently, in order to bring his current petition
pursuant to § 2241, rather than § 2255, Mejia must necessarily
(albeit implicitly) be claiming that his petition is subject to
§ 2255’s “savings clause” - that i s , that § 2255 is “inadequate
or ineffective to test the legality of his detention.” 28 U.S.C.
§ 2255. See also Sustache-Rivera v . United States, 221 F.3d at
15 (“The savings clause applies if the remedy under § 2255 is
inadequate or ineffective to test the legality of a petitioner’s
detention. Only then may a § 2241 petition be filed that
challenges the legality of a conviction or a sentence.”)
(citation and internal quotation marks omitted). However, as the
Court of Appeals for the First Circuit has observed, “A petition
under § 2255 cannot become ‘inadequate or ineffective,’ thus
permitting the use of § 2241, merely because a petitioner cannot
meet the AEDPA ‘second or successive’ requirements. Such a
result would make Congress’s AEDPA amendment of § 2255 a
meaningless gesture.” United States v . Barrett, 178 F.3d 3 4 , 50
7 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000). See also
Jiminian v . Nash, __ F.3d. __, 2001 WL 314559 (2d Cir. April 2 ,
2001) (“This opinion considers whether § 2255 may be deemed to
offer an ‘inadequate or ineffective’ remedy within the meaning of
28 U.S.C. § 2255, ¶ 5, thereby allowing a federal prisoner to
file a habeas corpus petition pursuant to 28 U.S.C. § 2241(c)(3),
where a prisoner who had a prior § 2255 motion dismissed on the
merits and cannot meet the AEDPA’s gate-keeping requirements
seeks to raise a claim that was available in a prior § 2255
motion. We conclude that § 2255 cannot be deemed inadequate or
ineffective under such circumstances.”).
Consequently, Mejia’s petition is not properly viewed as
having been brought pursuant to 28 U.S.C. § 2241 and the court
must next consider whether it is subject to the restrictions
applicable to “second or successive” petitions. Parenthetically,
the court notes that even if Mejia’s petition could be properly
viewed as having been brought pursuant to 28 U.S.C. § 2241, this
court would lack jurisdiction over i t . See Barrett, 178 F.3d at
50 n.10 (“[A] § 2241 petition is properly brought in the district
court with jurisdiction over the prisoner’s custodian (unlike a
8 § 2255 petition, which must be brought in the sentencing
court).”). Because it appears that Mejia is currently detained
in a federal correctional facility located in New Jersey, the
proper forum in which to litigate any claims under § 2241 is the
United States District Court for the District of New Jersey.
B. Is Mejia’s Petition “Second or Successive?”
Because Mejia’s original sentence was vacated and a new
sentence was imposed, there are circumstances under which a
subsequent § 2255 petition might properly escape the requirements
applicable to second or successive petitions. Whether his
pending petition actually falls within that realm, however,
presents a difficult question that appears to be unresolved in
this circuit.
In his current petition for habeas corpus relief Mejia
arguably challenges the validity of his underlying conviction,
saying the indictment upon which his conviction was based was
defective. Construed in that fashion, and assuming he could have
raised that challenge in his prior petition, his current petition
must necessarily be viewed as “second or successive.”
9 As a general rule, a prisoner who had both the incentive and the ability to raise a particular claim in his first petition for post-conviction relief, but declined to assert it, cannot raise it the second time around.
Pratt v . United States 129 F.3d 5 4 , 62 (1st Cir. 1997). See also
Galtieri v . United States, 128 F.3d 3 3 , 37-38 (2d Cir. 1997)
(“[W]henever a first 2255 petition succeeds in having a sentence
amended, a subsequent 2255 petition will be regarded as a ‘first’
petition only to the extent that it seeks to vacate the new,
amended component of the original sentence, and will be regarded
as a ‘second’ petition to the extent that it challenges the
underlying conviction or seeks to vacate any component of the
original sentence that was not amended.”). Consequently, unless
Mejia may properly be viewed as challenging his recently amended
sentence, rather than his underlying conviction, this court
probably lacks jurisdiction to address the merits of Mejia’s
petition, which instead must be transferred to the court of
appeals. See Pratt, 129 F.3d at 57 (“AEDPA’s prior approval
provision allocates subject-matter jurisdiction to the court of
appeals by stripping the district court of jurisdiction over a
10 second or successive habeas petition unless and until the court
of appeals has decreed that it may go forward.”).
Alternatively, however, one might argue that Mejia raises a
timely challenge to his amended sentence (i.e., within one year
of imposition). His complaint is that his sentence is unlawfully
based upon factors (drug quantity) not proved beyond a reasonable
doubt to a jury. To support that claim, he points to the Supreme
Court’s recent decision in Apprendi.3
One might reasonably posit that Mejia had neither the
incentive nor opportunity to raise such a challenge in his first
petition, since: (1) it predated the Supreme Court’s issuance of
the Apprendi opinion; (2) it would have been contrary to arguably
applicable then-existing circuit precedent; and (3) he might well
have lacked any incentive to argue at trial (or on direct appeal)
3 Under the circumstances described, the fact that Apprendi has not been made retroactively applicable to cases on collateral review, 28 U.S.C. § 2255, para. 6 ( 3 ) , would seem to be of no moment. If one can plausibly argue that Mejia’s petition represents a timely challenge to his amended sentence, he need not avail himself of any of the exceptions to § 2255’s one year statute of limitations (one of which addresses recent Supreme Court decisions specifically made retroactive to collateral attacks on criminal convictions and/or sentences).
11 that the jury should have been presented with evidence concerning
the specific quantities of cocaine that he was allegedly
trafficking. See Sustache-Rivera v . United States, 221 F.3d 8 ,
14 n.9 (1st Cir. 2000). Viewed in that context, Mejia’s petition
might escape the requirements applicable to second or successive
petitions, notwithstanding the fact that it i s , historically, his
second petition.
Mejia’s petition plainly presents a somewhat unusual fact
pattern and raises potentially difficult questions concerning the
proper interpretation of § 2255’s “second or successive”
language. The court of appeals recently addressed an analogous
situation, in which an inmate claimed that a § 2255 petition
should not be treated as second or successive “where a facially
meritorious basis for relief becomes available for the first time
- due to a change in law - after a previous § 2255 petition has
already been filed and litigated.” Sustache-Rivera, 221 F.3d at
13. In that case, the petitioner was convicted of carjacking.
However, the question of whether serious bodily injury occurred
during the course of the carjacking was not submitted to the
jury. Instead, that issue was resolved at sentencing, by the
12 court. Subsequent opinions issued by the court of appeals
confirmed that serious bodily injury was merely a sentencing
enhancement and, therefore, need not be submitted to the jury.
Approximately four years later, however, the Supreme Court held
that the serious bodily injury requirement is an element of the
carjacking offense defined in 18 U.S.C. § 2119(2) and, therefore,
must be submitted to the jury. Jones v . United States, 526 U.S.
227, 251-52 (1999). Thus, much like Mejia, the petitioner in
Sustache-Rivera claimed that the basis for challenging his
underlying conviction and/or sentence only became viable after he
filed his first petition for habeas relief.
Although the court of appeals noted that “the courts of
appeals have routinely treated as second or successive claims
alleged to be ‘new’ due to the Supreme Court’s changing the law,”
id. at 1 4 , and notwithstanding its having expressed some doubts
about the merits of the petitioner’s argument, the court declined
to resolve whether his petition was properly viewed as second or
successive:
[A]lthough we think the argument questionable, we do not decide the issue, but only note that the premise of [petitioner’s] argument - that he lacked reasonable
13 opportunity to argue that serious bodily injury was an element of the crime - is itself a difficult question.
Id. at 14 (citing Bousley v . United States, 523 U.S. 614 (1998)).
The court then went on the observe, “[m]ore significantly, . . .
whether [the] petition is treated as a first petition or as a
second petition makes no difference for other reasons.”
Sustache-Rivera, 221 F.3d at 1 4 .
So it is in this case. Accordingly, for purposes of this
order, the court will assume that Mejia has raised a valid and
timely challenge to his amended sentence. Thus, his petition is
not “second or successive” and this court has jurisdiction to
address it on the merits. Even giving Mejia the benefit of that
doubt, however, his petition necessarily fails on the merits
since it does not raise a viable Apprendi issue.
III. The Rule in Apprendi.
Even assuming that Mejia may properly challenge his amended
sentence as violative of the rule articulated in Apprendi, the
petition and files of record conclusively demonstrate that he is
14 entitled to no relief. See 28 U.S.C. § 2255, para. 2 .
Consequently, his petition must be denied.
In Apprendi the Supreme Court held that, “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490 (emphasis supplied). In this case,
Mejia was convicted of conspiracy to distribute and to possess
with intent to distribute cocaine and cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and 846, and unlawful distribution of
cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1).
No drug quantities were specified in the indictment.
Consequently, Mejia was subject to the penalty provisions of 21
U.S.C. § 841(b)(1)(C) and exposed to the so-called “default
statutory maximum” of twenty years imprisonment. See United
States v . Robinson, 241 F.3d 115, 118 (1st Cir. 2001). As noted
above, however, upon resentencing, Mejia was sentenced to 97
months of imprisonment, well below the 20-year statutory maximum
to which he was exposed. As the Robinson court made clear, such
15 a sentence does not run afoul of the rule articulated in
Apprendi:
In the last analysis, the court meted out only a 121- month sentence - a sentence below the lowest statutory maximum for trafficking in cocaine base. No Apprendi violation occurs when the district court sentences a defendant below the default statutory maximum, even though drug quantity, determined by the court under a preponderance-of-the-evidence standard, influences the length of the sentence imposed.
Robinson, 241 F.3d at 119 (citation omitted).
Conclusion
Mejia’s petition for habeas relief is properly viewed as
having been filed under 28 U.S.C. § 2255, rather than 28 U.S.C.
§ 2241. It i s , therefore, at least arguable that it must be
treated as a “second or successive” petition, over which this
court lacks jurisdiction. The state of the law on that issue i s ,
however, unsettled in this circuit and a colorable argument can
be made that his petition is not subject to the certification
process applicable to second or successive petitions.
Consequently, giving Mejia the benefit of any doubt and
treating his petition as falling outside the realm of those
16 properly viewed as being “second or successive,” the court
concludes that it has jurisdiction to address the merits of his
claim. Unfortunately for Mejia, however, his petition fails to
raise a viable Apprendi issue and the record conclusively
establishes that he is not entitled to the habeas relief he
seeks. Mejia’s motion to vacate under 28 U.S.C. § 2255 (document
no. 1 ) i s , therefore, denied. The Clerk of the Court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
April 3 0 , 2001
cc: Alfredo L. Mejia, pro se Peter E . Papps, Esq.