IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
July 3, 2012
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Eduardo C. Robreno, J.
Before the Court is Keith Blount's ("Petitioner") counseled motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 (hereinafter "§ 2255 Motion"). For the reasons set forth below, the Court will deny and dismiss with prejudice Petitioner's Motion and no certificate of appealability will issue.
On March 3, 1999, Petitioner was found guilty of one count of distributing one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1), after a jury trial. He was sentenced on November 23, 1999, to 264 months of incarceration, to run concurrently with a state sentence for unrelated conduct. Judgment, ECF No. 102. Petitioner appealed his conviction and asserted three claims. He argued that the evidence was insufficient to support his conviction, that the district court committed plain error in instructing the jury that the government did not have to prove that Petitioner knew that the drugs distributed were cocaine rather than some other controlled substance, and that the government should have been required to submit the question of drug quantity to the jury, despite the fact that his trial counsel agreed to stipulate to the amount distributed, because that fact increased the statutory maximum penalty. The Third Circuit Court of Appeals affirmed Petitioner's conviction and sentence on December 20, 2000. Blount v. United States, No. 99-1994, slip op. at 2 (3d Cir. Dec. 20, 2000). Certiorari was denied October 1, 2001. Blount v. United States, 534 U.S. 908, 908 (2001).
On September 23, 2002, Petitioner filed a timely petition to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. ECF No. 113. Petitioner raised five allegations in support of his claim for relief. First, Petitioner contended that trial counsel was ineffective for failing to seek a mistrial as a result of particular expert testimony by an officer. Second, Petitioner argued that trial counsel was ineffective for failing to call co-defendant Vincent Billue to testify at trial. Third, Petitioner alleged that trial counsel was ineffective for failing to request a downward departure for the time already served in state and county custody. Fourth, Petitioner alleged that trial counsel was ineffective for failing to request that an officer's testimony be excluded from the Court's sufficiency of the evidence analysis. Fifth, Petitioner contended that in light of his other arguments, the evidence was insufficient to support his conviction.
The Court held hearings on Petitioner's petition on April 30, 2004, June 9, 2004, and June 15, 2004. This Court denied all of Petitioner's claims except the claim that sentencing counsel was ineffective for failing to request a downward departure pursuant to United States Sentencing Guidelines Section 5G1.3 for time served in state and county custody. Blount v. United States, No. 98-412, slip op. at 11-12 (E.D. Pa. July 22, 2004), ECF No. 136. The Court then issued an order scheduling a hearing for a re-sentencing "to consider whether a downward departure, for time spent in state incarceration before federal sentencing, is warranted." See Order, July 22, 2004, ECF No. 136. Although originally scheduled for August 23, 2004, Petitioner's re-sentencing was held approximately a year later on August 26, 2005.*fn1 The Court determined that Petitioner was a career offender and found his offense level to be 34, his criminal history category to be VI, and his imprisonment range to be 262 to 327 months. The Court then granted Petitioner's request for an adjustment pursuant to United States Sentencing Guidelines Section 5G1.3 and re-sentenced Petitioner to 245 months plus 28 days. ECF No. 189.
Petitioner appealed his amended sentence and the Court of Appeals affirmed it on June 8, 2007. ECF No. 200. Petitioner did not file any further appeals or motions until he filed the instant petitioner on June 20, 2011. § 2255 Motion, ECF No. 203. Thus, his second sentence became final on or about September 7, 2007.
In the instant petition, Petitioner raises four grounds as the basis for his petition for relief. First, Petitioner contends that trial counsel was ineffective for failing to seek a mistrial as a result of particular expert testimony by an officer. Second, Petitioner argues that trial counsel was ineffective for making an uninformed decision not to call co-defendant Vincent Billue to testify at trial. Third, Petitioner asserts that appellate counsel should have raised the foregoing two issues on direct appeal. Fourth and lastly, Petitioner asserts that when his sentence was vacated, he was entitled to resentencing using the advisory guidelines in effect at the time of the resentencing, and is now entitled, pursuant to Pepper v. United States, 131 S. Ct. 1229 (2011), to have the district court consider post-sentencing rehabilitation as a factor in reducing his sentence.
A federal prisoner in custody under sentence of a federal court challenging his sentence based on a violation of the Constitution or laws of the United States may move the court that imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255(a) (Supp. IV 2011). In a § 2255 motion, a federal prisoner may attack his sentence on any of the following grounds: (1) the judgment was rendered without jurisdiction; (2) the sentence imposed was not authorized by law or otherwise open to collateral attack; or (3) there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. See id. § 2255(b).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations period for § 2255 motions. 28 U.S.C. § 2255(f) (Supp. IV 2011). That period generally runs from "the date on which the judgment of conviction becomes final." Id. § 2255(f)(1). A petitioner's judgment becomes final when his time to petition for a writ of certiorari for review of the Third Circuit's judgment expires.
See Clay v. United States, 537 U.S. 522, 525 (2003) ("[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."); U.S. Sup. Ct. R. 13(1) (providing ninety-day period to file petition for writ of certiorari to review appellate court judgment).
A petitioner is entitled to an evidentiary hearing as to the merits of his claim unless it is clear from the record that he is not entitled to relief.*fn2 The Court must dismiss the motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." R. Governing § 2255 Proceedings for the U.S. District Courts 4(b) [hereinafter "Section 2255 Rule"].
Based on Petitioner's § 2255 Motion, it plainly appears that Petitioner is not entitled to relief because his motion presents issues that have already been considered and denied previously by this Court. The one exception is Petitioner's claim that the Court should consider his post-sentencing rehabilitation pursuant to Pepper v. United States. 131 S. Ct. at 1250. However, as Pepper should not be given retroactive effect to Petitioner's case, this claim will also be denied. Therefore, the Court will deny the motion and dismiss with prejudice.
Petitioner relies upon Magwood v. Patterson, 130 S. Ct. 2788 (2010), for the proposition that his current petition is not a second successive petition and therefore he is not bound by requirement to first obtain authorization from the United States Court of Appeals for the Third Circuit to challenge his conviction. See § 2255(h). Under AEDPA, a petitioner incarcerated pursuant to a federal judgment cannot bring a "second or successive" motion for habeas relief, unless he or she first obtains permission from a court of appeals. Id. The Supreme Court in Magwood held that when a first habeas petition pursuant to 28 U.S.C. § 2254 results in the issuance of a new judgment, a later-in-time petition challenging that new judgment is not a "second or successive petition" under AEDPA. 131 S. Ct. at 2787. The Second Circuit subsequently held that, in light of the substantially similar relevant language in § 2255 and § 2254, "the rule stated in Magwood applies to § 2255 motions." Johnson v. United States, 623 F.3d 41, 45 (2d Cir. 2010).*fn3
While the Government concedes that the Supreme Court's holding in
Magwood "may permit [Petitioner] to avoid the requirements for a
'second or successive' motion under § 2255(h)," it argues that to the
extent the Petitioner is contending that the statute of limitations
did not begin to run until June 24, 2010 (the day Magwood was
decided), Petitioner's reliance on Magwood is misplaced because the
case did not discuss excusing a Defendant from meeting the limitations
period established by § 2255(f) for a first motion.*fn4
Petitioner's current § 2255 motion challenges his amended judgment of conviction
affirmed by the Third Circuit on June 8, 2007, which in the absence of
a petition for certiorari, became final ninety days later, on or about
September 7, 2007. See Clay, 537 U.S. at 525. As Petitioner filed his
current motion on June 20, 2011, more than a year after the amended
judgment became final, he relies upon 28 U.S.C. § 2255(f)(3)
contending that recent developments in the law, specifically Magwood
and Pepper v. United States, 131 S. Ct. 1229, render his § 2255 motion
Even if Magwood were to be given retroactive effect to Petitioner's case, thus rendering his § 2255 motion challenging his amended judgment of conviction timely, his claims fail because they have either already been considered and dismissed by this Court during Petitioner's initial § 2255 motion or they are based on a "newly recognized right" which has not been made "retroactively applicable to cases on collateral review." § 2255(f)(3).*fn5 Petitioner's arguments with respect to his first and second claims, specifically that trial counsel was ineffective for failing to seek a mistrial as a result of particular expert testimony by an officer*fn6 and for making an uninformed decision not to call co-defendant Vincent Billue to testify at trial have not changed since the Court last considered them. See Blount, slip op. at 4-11, ECF No. 136. The law has not changed, no newly discovered facts have been alleged,*fn7 and nothing has occurred that would make the Court reverse its previous decision to deny Petitioner's prior § 2255 based on his claims of ineffective assistance of trial counsel for failing to request a mistrial as a result of allegedly unfairly prejudicial testimony or to conduct a reasonable investigation before making an allegedly uninformed decision not to call Vincent Billue.*fn8
Lastly, Petitioner argues that when his sentence was vacated, he was entitled to resentencing using the advisory guidelines in effect at the time of the resentencing, and is now entitled pursuant to Pepper v. United States, 131 S. Ct. 2788 (2011), to have the district court consider post-sentencing rehabilitation as a factor in reducing his sentence. The Court previously considered the former part of Petitioner's request at his resentencing, in which Petitioner argued that he was entitled to a de novo resentencing in light of the intervening decisions of Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). Blount v. United States, No. 98-412, slip op. at 3-6 (E.D. Pa. Aug. 26, 2005), ECF No. 184. The Court then concluded and now reaffirms that Booker is not retroactively applicable to cases on collateral review and that no authority suggests that Petitioner was then entitled to a de novo resentencing in light of Blakely and Booker. Id. at 5. Nevertheless, "[i]n an effort to protect judicial efficiency" the Court ruled on all of Petitioner's objections to the revised PSR in the alternative, and stated at sentencing that if a de novo review was required the Court would have imposed the same sentence as it imposed on August 26, 2005. Resentencing Hr'g Tr. 20:20-21:5, ECF No. 197. Thus, Petitioner's claim that he was inappropriately denied his rights to a de novo resentencing is denied.
As to Petitioner's claim that he is entitled to have his
post-sentencing rehabilitation considered pursuant to the Supreme
Court's decision in Pepper, the Court also denies this claim because
the decision is not retroactively applicable to a collateral
proceeding. In Pepper, the Supreme Court held that "[d]istrict courts
post-Booker may consider evidence of a defendant's post-sentencing
rehabilitation at resentencing and such evidence may, in appropriate
cases, support a downward variance from the advisory Guidelines
range." 131 S. Ct. at 1247. In so holding the Supreme Court
invalidated 18 U.S.C. § 3742(g)(2), which had effectively foreclosed a
resentencing court from considering evidence of a defendant's
post-sentencing rehabilitation for purposes of imposing a
non-Guidelines sentence, based on the rationale of Booker. Id. at
1244-45. The decision in Pepper is a species of the Booker rule that
the Sentencing Guidelines may not be applied as mandatory. Id. The
Third Circuit and other circuits have held that Booker does not apply
retroactively to cases on collateral review, including initial
petitions. Lloyd v. United States, 407 F.3d 608, 615-16
(3d Cir. 2005); see also Green v. United States, 397 F.3d 101, 103 (2d
Cir. 2005) (per curiam) ("[N]either Booker nor Blakely . . . apply
retroactively to Green's collateral challenge."); Humphress v. United
States, 398 F.3d 855, 860 (6th Cir. 2005) ("[W]e conclude that
Booker's rule does not apply retroactively in collateral
proceedings."). Pepper, like Booker, announced a rule that is
"new"*fn9 and "procedural," but not "watershed," and
therefore, does not satisfy the three-step inquiry*fn10
required to be retroactively applicable to those cases that
became final as of March 2, 2011, the date that Pepper was issued. See
Lloyd, 407 F.3d at 615-616. Accordingly, Pepper will not be applied
retroactively to Petitioner's case, which is on collateral review, and
thus Petitioner's claim will be denied.
IV.CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a § 2255 motion, the Court must also decide whether to issue or deny a Certificate of Appealability ("COA"). See Section 2255 R. 11(a). The Court may issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2) (2006).
When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, an evidentiary hearing is not required because it plainly appears that Petitioner's § 2255 Motion presents claims which have already been considered and dismissed on collateral appeal or are based on a Supreme Court decision that is not retroactively applicable to Petitioner's case. For the same reasons, jurists of reason would not find it debatable whether the Court is correct in this procedural ruling. Therefore, the Court will deny a COA.
For the foregoing reasons, the Court will deny and dismiss with prejudice Petitioner's § 2255 Motion. The Court will not issue a certificate of appealability. An appropriate order will follow.