the terms and conditions imposed in the original sentence imposed
on October 9, 1991. Also addressed in our March 24, 1998
Memorandum and Order were Petitioner's ineffectiveness of counsel
claim, 6th Amendment right to confront accusers claim, improper
sentencing calculation claim, obstruction of justice claim, and
acceptance of responsibility/reduction in sentence claim. (See
This is the kind of case that gives us pause regarding
28 U.S.C. § 2255 limitations under the new Act.
We pause because the Petitioner did file a prior
28 U.S.C. § 2255 claim which we granted and set aside the prior sentence
allowing him to be resentenced to an identical term as the
original. In the course of doing that we explored the merits of
his numerous arguments and determined them to be meritless. As
such, we think that this is a second 28 U.S.C. § 2255 petition
and therefore improper. We think that the Petitioner did exhaust
his right to appeal this sentence but in an abundance of caution
we will address his petition again and frequently refer back to
the first petition (Doc. 71) and our Memorandum and Order of
March 24, 1998. (Doc. 91).
Further, the Petitioner claims that his sentencing is affected
by the recent case of Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435. We find that it is not.
Notwithstanding the Petitioner's improper attempt to amend his
motion via an informal letter addressed to the Court, again, in
an abundance of caution we will analyze the merits of this claim.
A. INEFFECTIVENESS CLAIM
The Petitioner contends that his counsel was ineffective. This
claim was raised in Petitioner's prior habeas corpus motion (Doc.
91) where it was reviewed and dismissed by this Court. Because
our prior review of this claim is more than adequate we find it
unnecessary to restate it here. (See Doc. 91, pp. 7-12).
Obviously, the Petitioner has a difference of opinion, but in
light of his failure to cite any changes in the law or relevant
cases, revisiting this issue is not warranted.
B. PROSECUTORIAL MISCONDUCT CLAIM
Petitioner claims in his brief that the government committed
"[g]ross [p]rosecutorial [m]isconduct, when coercing Petitioner
to [p]lea [g]uilty" because the Petitioner was promised that if
he cooperated with the government that he would receive
sentencing and post sentencing consideration. Namely, Petitioner
was asked to reveal his sources of supply of cocaine and
information about his tip that he was being investigated by
authorities. Notwithstanding Petitioner's viewpoint, this claim
Petitioner admits in his brief that he did not cooperate with
the authorities and that he received no benefit or additional
consideration from the government. Petitioner cites no relevant
authority to support this claim. Petitioner does cite U.S. v.
Carrara, 49 F.3d 105, 107 (3d Cir. 1995) (holding, defendant's
filing of false affidavit relieved government of its obligation
under plea agreement to seek downward departure from Sentencing
Guidelines range on ground of substantial cooperation, et al.).
Based on the reasoning in Carrara, the government did not act
in bad faith or improperly when it refused to request a downward
departure in the Petitioner's sentence because the Petitioner
refused to cooperate.
C. IMPROPER SENTENCING CLAIM
The Petitioner claims that the reasoning used by this Court to
enhance his base
offense level was wrong. This identical issue was raised in the
Petitioner's prior habeas corpus motion (Doc. 91) where it was
reviewed and dismissed by this Court. Because our prior review of
this claim is more than adequate we find it unnecessary to
restate it here. (See Doc. 91, pp. 14-22). Obviously, the
Petitioner has a difference of opinion, but in light of his
failure to cite any changes in the law or relevant cases,
revisiting this issue is not warranted.
D. APPRENDI CLAIM
Assuming the Petitioner's "Amended (informal) Brief" (Doc. 116)
filed on December 29, 2000, is proper, it still fails.
The Petitioner correctly states in his "Amended (informal)
Brief" (Doc. 116) that his sentence was calculated based on the
Court's use of facts presented at sentencing by the government
and determined by a preponderance of the evidence. The Petitioner
claims that this is improper in light of Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. Since the
Apprendi decision last year, this District has seen many
filings from inmates seeking reconsideration of their sentences,
however the holding in Apprendi is narrow. The Petitioner's
argument for applying Apprendi in his case is not much more
than wishful thinking. Recently, the Third Circuit case of U.S.
v. David Williams, CV-99-5431, slip op. (D.N.J., Dec. 21, 2000),
defined the parameters of Apprendi. In Williams, the
Appellant, Williams entered into a plea agreement with the
government after being charged with numerous counts of conspiracy
to distribute heroin. He was sentenced following a plea hearing.
At the plea hearing the parties stipulated to the amount of
heroin involved and the judge used this amount to determine the
base offense level. Williams was subsequently sentenced to 85
months — within the sentencing guideline range of 70 to 87
months. Williams appealed in light of Apprendi. The Court in
Williams looked at two issues in deciding whether to apply
Apprendi: 1) whether the Supreme Court intended Apprendi to
apply to cases in which the trial judge decides a fact that
increases a defendant's sentence under the Sentencing Guidelines,
but the sentence imposed does not exceed the statutory maximum;
and 2) whether the Supreme Court intended Apprendi to apply to
cases in which judicial fact finding increases the possible
sentence to be received above the statutory maximum, but the
actual sentence is below the statutory maximum. The Williams
Court answered "no" to both of these questions and therefore
declined to apply Apprendi.
In Williams, the District Court at the sentencing hearing
found that the amount of drugs attributed to Williams increased
his base level offense from level 25 to level 28, thereby
creating a sentencing range of 70 to 87 months. The District
Court in Williams sentenced him to 85 months. The Court in
Williams found that because the sentence did not exceed the
statutory maximum, it was a permissible exercise of discretion on
behalf of the District Court and based on the first issue set
forth, supra, Apprendi does not apply.
In the second issue, the Court found that Apprendi did not
apply to the Williams case because,
"[d]espite the ambiguity in Apprendi, we hold that
it does not apply to Williams' sentence for several
reasons. First and foremost, though the District
Court's finding regarding the amount of drugs
substantially increased the possible statutory
maximum sentence under 21 U.S.C. § 841(b)(1), we hold
that Apprendi is not applicable to Williams'
sentence, because the sentence actually imposed
(seven years and one month) was well under the
original statutory maximum of 20 years.
Second, this 20 year maximum sentence was confirmed
several times in the course of Williams' plea and
sentence. The plea agreement specified that the
statutory `statutory maximum penalty' for Williams'
violation was 20 years imprisonment. The District
Court confirmed at the plea hearing that Williams
understood that he `could receive up to 20 years in
prison.' Williams' application to enter a guilty plea
states that he understood that the maximum punishment
under the law for his offense was 20 years in prison.
. . ."
U.S. v. David Williams, CV-99-5431, slip op. (D.N.J., Dec.
21, 2000) (pp. 10-11).
The case before us is similar to Williams with respect to
sentencing. Under the first guideline of the Williams test, we
find that Apprendi does not apply. The statutory maximum that
Petitioner could receive was up to 40 years, depending on the
charge. The sentencing guidelines reflected a sentence of 235 to
293 months (19.6 to 24.4 years). The Petitioner's actual sentence
was 235 months (19.6 years). (Doc. 39, pp. 127).
Under the second guideline of the Williams test, we find that
Apprendi also does not apply. The Williams Court found that
Apprendi does not apply when judicial fact finding does
increase the possible sentence to be received but the actual
sentence is below the statutory maximum. As stated above, the
statutory maximum for the most serious charges is 40 years. The
Petitioner received less than one half of that time, thereby
making Apprendi inapplicable.
Finally, we cannot apply Apprendi retroactively with no
definitive directive from the Supreme Court to do so.
It is questionable whether this action is a second § 2255
petition or a successive § 2255 petition because the Petitioner
was resentenced and the merits were addressed in our Memorandum
and Order of March 24, 1998. (Doc. 91). Another
aberration-outside of whether this is a proper § 2255 petition or
not-is that six months after filing this petition the Petitioner
submitted Document No. 116 via U.S. Mail as an "amendment" which
raises Apprendi v. New Jersey. In an effort to put this case to
rest and in proper perspective more than ten years from its
inception, we revisited the Petitioner's issues, including the
alleged ineffective assistance of counsel claim, alleged
government misconduct, and the alleged sentencing
miscalculations, in addition to the new Apprendi claim.
Apart from the Petitioner's procedural errors, we visited the
merits of this case, found them meritless and addressed them in
our March 24, 1998 Memorandum and Order with the exception of the
Apprendi issue. (See Doc. 91).
Therefore, based upon our review and for the foregoing reasons,
we deny Petitioner's § 2255 motion to vacate his sentence and his
amendment. (Docs. 114, 116).
NOW, this 20th DAY of FEBRUARY, 2001, it is hereby ORDERED
1. The Petitioner's motion for habeas corpus relief
(Doc. 114) is DENIED.
2. The Petitioner's Apprendi claim (Doc. 116) is
2. Based on the Court's conclusion herein, there is
no basis for the issuance of a certificate of
3. This petition is dismissed with prejudice, and any
appeal from it will be deemed frivolous.
4. The Clerk of Court is directed to close this case.