The opinion of the court was delivered by: William W. Caldwell United States District Judge
Invoking Fed. R. Civ. P. 60(b)(1) through (6), Defendant, Toffy Colon, has filed a pro se motion for relief from our order of February 11, 1993, denying his first motion under 28 U.S.C. § 2255. In light of Gonzalez v. Crosby, U.S. , 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), Defendant frames his motion as one seeking to correct a defect in the integrity of the 2255 proceedings. However, the claims presented in the Rule 60(b) motion are ones that either challenge the constitutionality of Defendant's criminal conviction and sentence or the correctness of two of the substantive rulings on the 2255 motion. As such, Defendant's filing is really a successive 2255 motion, and he must first seek the permission of the court of appeals before we can entertain it.
In September 1989, a jury convicted Colon on both counts of a two-count indictment. Count I had charged him with a conspiracy to distribute multiple kilo quantities of cocaine between July 1987 and August 1988 and count II with the distribution of three kilograms of cocaine on July 2, 1988. In December 1989, after a court finding that the offenses involved at least fifteen kilograms of cocaine, he was sentenced to concurrent sentences of 400 months on each count, to pay a total of $100 to the United States as a special assessment of $50 on each count, and to five years of supervised release on each count concurrently. Represented by a different counsel than his trial attorney, the defendant took a direct appeal which the Third Circuit denied in an unpublished judgment order, dated July 17, 1990. See United States v. Colon, Nos. 89-5985 & 90-5047 (3d Cir. July 17, 1990).
On November 2, 1992, Colon filed his first 2255 motion. We denied that motion by order of February 11, 1993, the subject of the current motion for relief from judgment. In his motion, Colon claimed that both his trial counsel and his appellate counsel were ineffective in failing to object to the following:
(1) a defect in count II of the indictment which failed to charge him with distributing cocaine with the requisite knowledge and intent; (2) the court's instruction on count II which did not properly instruct the jury on the "scienter" element of 21 U.S.C. § 841(a); (3) the prosecutor's prejudicial references to one murder, one shooting, one shootout, and an injury in an automobile accident which had nothing to do with the charges against Defendant; (4) the prosecutor's improper vouching for his witnesses which included an improper reference to the fact that Gerald Smith, the main witness against Defendant, had testified in other trials; (5) the submission to the jury of the unredacted plea agreements of the witnesses against Defendant which contained "cooperation and polygraph" clauses improperly bolstering the witnesses' testimony; and (6) the prosecutor's rebuttal argument in closing to the jury which inflamed their passions against Defendant.
In rejecting these claims, we noted in the memorandum accompanying the order that count II had indeed failed to charge a necessary element of the offense, that Defendant had distributed the cocaine knowingly, but we decided that Defendant had not been prejudiced by this omission and that we would not disturb the conviction on collateral proceedings. The Third Circuit affirmed in an unpublished judgment order, dated October 13, 1993. See United States v. Colon, No. 93-7138 (3d Cir. Oct. 13, 1993).
In December 1993, Colon filed a second 2255 motion. In that motion, he argued, in part, that the 400-month sentence he was given on the conspiracy conviction violated the Ex Post Facto Clause because it was based on a statutory amendment to 21 U.S.C. § 846 which had taken effect after the conspiracy had ended. We noted that this claim had "support in the case law," citing United States v. Moon, 926 F.2d 204 (2d Cir. 1991). On March 30, 1994, we denied the motion because it presented claims that had not been brought in the original 2255 motion, and Defendant could not excuse his failure to do so. The Third Circuit affirmed on September 23, 1994. See United States v. Colon, No. 94-7251 (3d Cir. Sept. 23, 1994).
Thereafter, Colon sought additional post-conviction relief, including two applications in the court of appeals to file successive 2255 motions, see In re: Toffy Colon, C.A. Nos. 01-1964 and 06-1103 (3d Cir.), but they were all denied.
The current motion raises the following issues. First, the original 2255 ruling on February 11, 1993, lacks integrity for the following reasons. The court had no jurisdiction to impose a 400-month sentence on count I because: (1) 21 U.S.C. § 846, as it currently reads, was used to calculate the sentence imposed on count I, but had not been enacted by the time the conspiracy ended, as the court noted in its March 30, 1994, order denying the second 2255 motion;*fn1 and (2) no cocaine quantity was mentioned in count I. Second, the court lacked jurisdiction over count II because that count failed to assert an essential element of the crime, that the distribution had been done knowingly and because that element had been left open in the jury's verdict in violation of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Defendant's substantive claims are as follows. First, the 400-month sentence on count I violates the Fifth Amendment because the indictment only charged a three-kilogram quantity of cocaine (the sentence imposed was based on fifteen kilograms) and included none of the enhancements that were used to establish the sentence: possession of a firearm during commission of the offense, Defendant's role as organizer or leader, and obstruction of justice. Nor did it include the element of intent for the distribution offense in count II. The sentence also violates the Sixth Amendment because the jury was not instructed to find a drug quantity, or any of the other bases for imposing sentence. Further, no finding was made by the jury on these elements beyond a reasonable doubt.
Defendant relies on Gonzalez v. Crosby, U.S. , 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), to file this Rule 60(b) motion on the ground that Gonzalez makes Rule 60(b) "available to challenge the integrity" of a district court's prior 2255 ruling. (Doc. 133, Rule 60(b) motion at p. 10). Defendant asserts that in this "Post-Booker sentencing world," (doc. 133, Rule 60(b) motion at p. 10), see United States v. Booker, 543 ...