IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
December 13, 2011
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Juan R. Sanchez, J.
Petitioner Jeffrey Riggins seeks relief from his conviction and sentence pursuant to 28 U.S.C. § 2255. Riggins argues the sentence imposed for his conviction of possession of cocaine base (crack) with intent to distribute violates the Eighth Amendment because of the unwarranted disparity in the penalties for crack and powder cocaine offenses. Riggins also seeks leave to amend his § 2255 motion to add an ineffective assistance of counsel claim and a claim that this Court's application of the career offender provision of the United States Sentencing Guidelines violated United States v. Booker, 543 U.S. 229 (2005). For the following reasons, Riggins's § 2255 motion and request for leave to amend will be denied.
In December 2006, Riggins was indicted on one count of possession of five grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Seven months later, in July 2007, Riggins was indicted on an additional 24 counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
Before trial, Riggins filed a motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978),*fn1 arguing the affidavit in support of the warrant for his arrest contained deliberately or recklessly false statements. Specifically, Riggins challenged statements by the affiant, Drug Enforcement Administration Task Force Officer Jeffrey Taylor, that (1) during an intercepted phone call on October 21, 2006, Riggins told the other party to the call he "had a very high yield of crack cocaine when he cooked the cocaine previously purchased from the other individual," and (2) Riggins had a series of phone conversations with the same individual on November 25, 2006, in which he "negotiated the purchase of 20 grams of cocaine from the other individual." Def.'s Mot. for a Franks Hr'g ¶¶ 3-4. Riggins argued Taylor's statement about the October 21 call was false because the transcript of the call did not support Taylor's characterization, and he challenged the statement about the November 25 call on the ground that there was no record of any intercepted call on that date.
In an August 27, 2007, Memorandum and Order, this Court denied Riggins's motion, finding Taylor's characterization of the October 21 call was a reasonable interpretation of the intercepted conversation,*fn2 and finding Riggins had failed to produce any evidence of malice or recklessness by Taylor, in light of the Government's evidence suggesting Taylor had simply misstated the date of the calls he identified as having occurred on November 25, 2006. This Court also found the allegedly false statements in the affidavit were not necessary to the determination of probable cause in any event.
Riggins proceeded to trial, and on November 5, 2007, a jury convicted him on all of the drug counts of the Superseding Indictment.*fn3 At the sentencing hearing on April 7, 2008, this Court adopted the Presentence Investigation Report (PSR) for Riggins, in which the probation officer concluded Riggins's criminal history qualified him as a career offender under U.S.S.G. § 4B1.1. PSR ¶ 30. As a result of his classification as a career offender, Riggins was assigned an offense level of 37 and a criminal history category of VI, yielding an advisory Guidelines range of 360 months to life. Id. ¶¶ 30, 67, 102. After considering the factors set forth in 18 U.S.C. § 3553(a), this Court sentenced Riggins to 432 months of imprisonment on the drug counts, 15 years on the firearm count (to run concurrently), eight years of supervised release, a fine of $3,000, and a special assessment of $2,600. Riggins appealed his conviction, challenging the denial of a Franks hearing, but the Third Circuit affirmed, finding that even if Riggins had been arrested illegally, such illegal arrest was not a basis to overturn his conviction. United States v. Riggins, 319 F. App'x 180 (3d Cir. 2009).
On April 8, 2010, Riggins filed a pro se § 2255 motion, seeking to vacate his sentence on the ground that the disparity in penalties for crack and powder cocaine offenses is unconstitutional. At this Court's direction, Riggins's re-filed his § 2255 motion on the Court's current standard form on June 21, 2010, and the Government responded to the motion on November 10, 2010. Riggins thereafter filed a reply brief in which he sought permission to amend his § 2255 motion to include an ineffective assistance of counsel claim and an additional claim that his sentence was unconstitutional. At this Court's request, the Government filed a response to Riggins's reply. Riggins filed a further reply in May 2011.
Pursuant to § 2255, a prisoner in custody may move the court which imposed his sentence to vacate, set aside, or correct the sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
In his § 2255 motion, Riggins challenges the constitutionality of his sentence based on the disparity in penalties for crack and powder cocaine offenses in the federal system.*fn4 Riggins argues his sentence violates the Eighth Amendment because (1) the crack/powder cocaine disparity is unwarranted and produces sentences grossly disproportionate to the crime for crack offenses, and (2) the disparity is no longer acceptable in light of the changing views of the various components of the criminal justice system on the subject since the passage of the Anti-Drug Abuse Act of 1986, which created the disparity. In support of the latter argument, Riggins cites the Supreme Court's recent decisions in Kimbrough v. United States, 552 U.S. 85 (2007), and Spears v. United States, 555 U.S. 261 (2009), in which the Court recognized the district courts' authority, post-Booker, to "reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines," and not simply based on the individualized circumstances of a particular case. Id. at 266. He also cites the Fair Sentencing Act of 2010 (FSA), which increased the quantities of crack necessary to trigger the five- and ten-year statutory mandatory minimum penalties under 21 U.S.C. § 841(b)(1), thereby reducing the crack-to-powder cocaine ratio to approximately 18:1. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124 Stat. 2372 (2010); Dixon, 648 F.3d at 197. Although acknowledging the FSA is not retroactive,*fn5 Riggins argues these developments reflect an emerging consensus that the crack/powder disparity creates sentences that are disproportionate and unwarranted.
The Government argues the enhanced penalties for crack offenses were not a factor in Riggins's sentence because his sentence was based on his status as a career offender, which resulted in a higher base offense level than if he had been sentenced based on the drug quantities attributable to him, and an advisory Guidelines range substantially higher than the ten-year mandatory minimum sentence applicable to the crack charge. While it is true Riggins's advisory Guidelines range was determined based on the career offender Guideline, rather than the Guideline for drug offenses, the crack charge appears to have affected the selection of the applicable offense level under that Guideline and thus the corresponding advisory Guidelines range.*fn6 Therefore, the Court will address Riggins's constitutional challenge.*fn7
As the Government notes, the Third Circuit has upheld the
constitutionality of the statutory mandatory minimum sentences for
crack offenses and the 100:1 crack-to-powder cocaine ratio against
Eighth Amendment, as well as equal protection, challenges.*fn8
In United States v. Frazier, 981
F.2d 92, 95-96 (3d Cir. 1992) (per curiam), the Third Circuit rejected
the argument that the disparity in the penalties for crack and powder
cocaine offenses was so disproportionate as to amount to cruel and
unusual punishment. The court first observed there are "reasonable
grounds" for imposing greater punishment for crack offenses than for
powder cocaine offenses involving similar drug quantities, including
"differences in the purity of the drugs, the dose size, the method of
use, the effect on the user, and the collateral social effects of the
traffic in the drug." Id. at 96. Noting the selection of the most
appropriate ratio was a judgment for Congress and the Sentencing
Commission, the court went on to hold the 100:1 ratio did not "step
beyond the bounds of the Constitution." Id. The court in Frazier also
rejected an equal protection challenge to the sentencing scheme's
100:1 ratio, finding no evidence the distinction between crack and
powder cocaine "was motivated by any racial animus or discriminatory
intent on the part of either Congress or the Sentencing Commission,"
and holding the distinction was "constitutional under rational basis
equal protection review." Id. at
95. Since Frazier was decided, the Third Circuit has consistently
adhered to these holdings. See, e.g., United States v. Marshall, No.
07-4778, 2009 WL 179876, at *2 (3d Cir. Jan. 27, 2009) (rejecting as
meritless a defendant's argument that the 10-year mandatory minimum
for his crack offense violated the Eighth Amendment because it was
disproportionate to his crime and disproportionate to the sentences of
powder cocaine defendants); United States v. Shields, 281 F. App'x
100, 101 (3d Cir. 2008) (adhering to prior holdings that mandatory
minimum sentences for crack offenses and 100:1 crack-to-powder ratio
do not violate the Eighth Amendment or a defendant's right to due
process); United States v. Alton, 60 F.3d 1065, 1069 n.7 (3d Cir.
1995) (noting Frazier decision is in accord with decisions of other
federal appellate courts "uniformly uph[o]ld[ing] the statutory and
guideline penalties for crack cocaine offenses against due
equal protection, and cruel and unusual punishment claims").
Although Riggins points to more recent developments in the law, including the Supreme Court's decisions in Kimbrough and Spears and the enactment of the FSA, two different panels of the Third Circuit have specifically declined to reconsider the constitutionality of the crack/powder cocaine disparity based on these developments. See United States v. Moore, 435 F. App'x 125, 128 (3d Cir. 2011) (rejecting entreaty to reconsider Frazier in light of the FSA and Kimbrough as "unavailing"); United States v. Chandler, 395 F. App'x 908, 911 (3d Cir. 2010) (declining to reconsider the constitutionality of crack/powder cocaine disparity based on Kimbrough and the FSA, and noting Kimbrough "does not support the notion that the . . . ratio and the mandatory minimum sentence are unconstitutional" and the FSA "is not determinative of the[ir] unconstitutionality"). Riggins's challenge to the constitutionality of his sentence will likewise be denied.
In his reply brief, Riggins seeks leave to amend his § 2255 motion to include a claim of ineffective assistance of counsel. Although the exact contours of the claim are not clear, Riggins appears to argue his attorney was ineffective for not adequately challenging Officer Taylor's statement in the affidavit in support of the warrant for Riggins's arrest that during an intercepted phone call on October 21, 2006, Riggins stated he had a very high yield of crack cocaine when he cooked cocaine purchased from the other party to the call. Riggins contends his counsel established the falsity of this statement during cross-examination of Taylor at the hearing on Riggins's Franks motion, but then failed to use the falsity of the statement to impeach Taylor at trial or to challenge the sufficiency of the Government's evidence that Riggins ever possessed crack at trial and on direct appeal.*fn9 The Government argues the amendment should not be permitted because it is an effort by Riggins to raise a new claim after expiration of the applicable one-year statute of limitations and is therefore time-barred.
Motions under § 2255 are subject to a one-year limitations period, which runs from the latest of the following dates:
(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;
(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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f)(1)-(4). Here, the one-year limitations period runs from June 30, 2009, the date Riggins's judgment of conviction became final,*fn10 as the dates specified in paragraphs (2) and (3) are plainly inapplicable and Riggins has failed to show the facts supporting his ineffective assistance claim could not have been discovered by the time the judgment became final.*fn11 Thus, because Riggins's reply brief seeking leave to amend was not filed until January 2011, his ineffective assistance of counsel claim is time-barred unless it relates back to Riggins's original, timely filed § 2255 motion. See United States v. Thomas, 221 F.3d 430, 436 (3d Cir. 2000) (holding, "as in non-habeas civil proceedings, a party cannot amend a § 2255 petition to add a completely new claim after the statute of limitations has expired").
An amendment to a § 2255 motion will be deemed to relate back to the date of the original motion if the original and amended motions "state claims that are tied to a common core of operative facts." Mayle v. Felix, 545 U.S. 644, 664 (2005); see also Thomas, 221 F.3d at 436 (explaining an amendment relates back to an original § 2255 motion if it provides factual clarification or amplification of a claim or theory in the original motion, but not if it seeks to add an entirely new claim or new theory of relief). Riggins concedes he did not include an ineffective assistance of counsel claim in his original § 2255 motion, Pet'r's Reply 2, but argues the amendment nevertheless relates back to the motion because the ineffective assistance claim arises out of the same set of facts as the issue Riggins identified as having been raised on direct appeal, namely, grounds raised in Riggins's direct appeal. Id. ¶¶ 8-9 (directing the petitioner to state whether he appealed from the judgment of conviction and, if so, on what grounds). There is no reference to either issue in the portion of the form motion instructing Riggins to "state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States." Id. ¶ 12. Nor is there any mention of these issues anywhere in Riggins's 14-page memorandum of law, which specifically identifies the two "issues presented" on collateral review, both of which pertain to the constitutionality of the sentencing disparity between crack and powder cocaine offenses. Pet'r's Mem. in Support of § 2255 Mot. 2. In these circumstances, even construing Riggins's § 2255 motion liberally, the motion cannot reasonably be understood to assert a challenge to the sufficiency of the evidence on the crack cocaine charge, much less a claim that counsel was ineffective for failing to assert such a challenge. Because Riggins's proposed ineffective assistance of counsel claim is not an effort to amplify his constitutional challenge to his sentence and does not share a common core of operative facts with his sentencing claims, the amendment does not relate back to the date of his original petition. Thus, because Riggins did not seek leave to amend until January 2011-more than six months after the one-year limitations period expired in June 2010-the amendment is untimely and will be denied.*fn12
An appropriate order follows.
BY THE COURT:
Juan R. Sanchez, J.