Opinion
00 Civ. 9696 (JFK), 98 Cr. 1230 (JFK)
July 2, 2002
Petitioner, Pro se: Marilyn Acevedo Reg. No. 42305-054 FCI Danbury Danbury, CT 06811.
For Respondent: JAMES B. COMEY United States Attorney for the Southern District of New York New York, N.Y. 10007. Of Counsel: Raymond J. Lohier, Jr. Assistant United States Attorney.
MEMORANDUM OPINION AND ORDER
Before the Court is the Petition of Marilyn Acevedo, pursuant to 28 U.S.C. § 2255 ("§ 2255"), to vacate, set aside or correct her sentence. For the reasons set forth below, Petitioner's motion is denied.
BACKGROUND
On November 10, 1998, Ms. Acevedo pleaded guilty before this Court to a one count information charging her with conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846. Under the Sentencing Guidelines ("U.S.S.G."), her base offense level was 32. However, as part of the Plea Agreement, Ms. Acevedo and the Government stipulated to a two level reduction pursuant to U.S.S.G. § 3B1.2 because her role in the offense was that of a "minor participant", a three level reduction, pursuant to U.S.S.G. § 3E1.1(a) and (b)(2), for Ms. Acevedo's timely notification of her intent to plead guilty and acceptance of responsibility, and an additional two level reduction, pursuant to U.S.S.G. § 2D1.1(b)(4), for her having truthfully provided to the Government "all information and evidence that the defendant ha[d] concerning the offense or offenses that were part of the same conduct or of a common scheme or plan" as the offense conduct in this case, in accordance with 18 U.S.C. § 3553 (f). These reductions resulted in an applicable offense level of 25. Ms. Acevedo and the Government also stipulated that her Criminal History Category was I. Based on these calculations, Petitioner and the Government stipulated that her sentencing range was 57 to 71 months in prison.
On April 8, 1999, this Court sentenced Ms. Acevedo to a term of sixty (60) months' imprisonment, a four-year term of supervised release, and a $100 special assessment.
Ms. Acevedo submitted the present § 2255 petition to the Court on December 21, 2000. Petitioner argues that the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) rendered her sentence of five years' imprisonment unconstitutional. She also maintains that her counsel was ineffective. Finally, Ms. Acevedo claims her conviction for the conspiracy charge to which she pleaded guilty was baseless, since it rested on "assumptions, not evidence," and since it followed a period of approximately 170 days between her arrest and the filing of the information to which she pleaded guilty.
DISCUSSION
I. Petition is Untimely and Barred by the Terms of the Plea Agreement
Ms. Acevedo's § 2255 petition fails because it is untimely. Since April 24, 1996, petitions filed under § 2255, with limited exception, must be filed within one year of the date on which the petitioner's conviction becomes final. See Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. No. 104-132 § 105, 110 Stat. 1214, 1220, codified at 28 U.S.C. § 2255. Ms. Acevedo did not file this petition until December 21, 2000. Ms. Acevedo's statutory deadline for filing her § 2255 petition was April 18, 2000, one year from the date on which her conviction became final. Because Ms. Acevedo failed to file her petition until eight months after the deadline, her claims are time-barred. See 28 U.S.C. § 2255.
Furthermore, under the terms of the Plea Agreement, Petitioner waived her right to appeal, or otherwise litigate her sentence under § 2255. The sentence of 60 months' imprisonment imposed on her was within the Stipulated Guidelines range set forth in the Plea Agreement. In her Plea Agreement, Ms. Acevedo agreed that neither a downward nor an upward departure from the sentencing range was warranted and that she would not seek any such departure. Moreover, during her plea allocution, Petitioner told the Court that the Plea Agreement was explained to her before she signed it, that she understood its terms, and that she had entered into it voluntarily.
II. The Apprendi Claim
Even if Ms. Acevedo's § 2255 petition were not time barred and precluded by the terms of the plea agreement, it still fails on the merits. In Apprendi v. New Jersey, 530 U.S. 466 (2000), 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 penalty must be submitted to a jury and proved beyond a reasonable doubt." Id. at 476. Relying on Apprendi, Ms. Acevedo argues that this Court erroneously increased her sentence claiming that the enhancement of the amount of heroin in her case to over one kilogram was unconstitutional because the facts underlying it were not found by a jury beyond a reasonable doubt. This claim has no merit, however.
A. Apprendi Does Not Apply Retroactively on Collateral Review
First and foremost, Apprendi does not apply retroactively on collateral review. Apprendi was decided after Ms. Acevedo's plea and sentencing. For Apprendi to apply to this case, the rule announced must be "new".
In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court defined a "new rule" as one that "breaks new ground or imposes a new obligation on the States or the Federal Government," and was not dictated by precedent at the time that the petitioner's conviction became final. Id. at 301. By this standard, Apprendi is a new rule. However, Teague also holds that a new rule of criminal procedure cannot form the basis for retroactive collateral review unless the case falls into one of two exceptions. Id. at 307.
The Second Circuit has construed Teague to recognize two exceptions to the general rule that new rules of constitutional procedure are not retroactive on collateral review. They are: (1) new rules which "place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense;" and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding." Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997) (quoting Sawyer v. Smith, 497 U.S. 227, 241-42 (1990)), cert. denied, 527 U.S. 1021 (1999). The first exception is inapplicable here because Apprendi does not decriminalize any conduct. The second exception is also inapplicable because the rule set forth in Apprendi does not qualify as a "watershed rule". The rule does not "alter our understanding of the bedrock procedural elements." Teague, 489 U.S. at 311. The procedure at issue would have to implicate the "fundamental fairness of the trial," and its absence would have to create an "impermissibly large risk that the innocent will be convicted." Id. at 312. The new rule announced in Apprendi, which merely shifts determination of the factors that enhance a maximum statutory penalty from the judge to the jury, does not meet this high standard.
The Second Circuit has found that Apprendi does not apply retroactively to second or successive petitions under § 2255 because "it is clear that Apprendi is not a new rule of constitutional law which has been made retroactive to cases on collateral review by the Supreme Court." Forbes v. United States, 262 F.3d 143, 145 (2d Cir. 2001); see also Bilzerian, 127 F.3d at 241 (finding that the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506 (1995), which shifted the determination of materiality in an 18 U.S.C. § 1001 prosecution from the judge to the jury, was not a watershed rule justifying retroactive collateral review).
B. The Apprendi Claim is Baseless
Second, Acevedo stipulated in her Plea Agreement of November 2, 1998 to possession of the specific drug quantities alleged in the information. In light of that stipulation, Acevedo's Apprendi claim is baseless. In United States v. Champion, 234 F.3d 106, 111 (2d Cir. 2000), the Second Circuit held that Apprendi concerns were not implicated where the defendant had stipulated to the amount of drugs at issue, since, had the issue been placed before a jury, the jury would have been bound by the stipulation. See id. (noting further that a defendant who pleads guilty to the specified drug amounts is in a similar position); see also Valdez v. United States, 00 Civ. 9105, 2001 WL 29998, at *1-2 (S.D.N.Y. Jan. 8, 2001) (holding that the defendant who stipulated to drug quantity in his plea agreement had no claim under Apprendi); Lendof v. United States, 00 Civ. 4312, 2001 WL 327155, at *9 (S.D.N.Y. Apr. 4, 2001) (same).
Nothing in the record suggests that Ms. Acevedo's plea was involuntarily or unknowingly made. Ms. Acevedo failed to object to either the drug quantity or to the guideline range calculation prior to sentencing. Ms. Acevedo cannot now claim that I improperly sentenced her on the basis of the drug quantities specified in the information and the plea agreement. See Ming v. United States, 99 Civ. 3873, 2001 WL 91621, at *3-4 (E.D.N.Y. Jan. 18, 2001) (in which Judge Gleason correctly rejected an Apprendi claim because defendant failed to object to the drug quantity calculation at sentencing).
Furthermore, Ms. Acevedo's guilty plea is the functional equivalent of a guilty verdict on all the charges. "A plea of guilty is more than a confession admitting that the accused did various acts, `it is itself a conviction.'" United States v. Norris, 143 F. Supp.2d 243, 247 (E.D.N.Y. 2001) (quoting Kercheval v. United States, 274 U.S. 220, 223 (1927)). Since Ms. Acevedo's sentence was based on that conviction, Apprendi simply does not apply in this case.
C. Apprendi is Not Applicable to Sentences Falling Below the Statutory Maximum for the Offense
In addition, the Second Circuit has recently held that Apprendi does not apply where, as here, defendant is sentenced to less than the statutory maximum. See United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001) (holding that "a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury"); see also Valdez, 2001 WL 29998, at *1; Lendof, 2001 WL 327155, at *9 In this case, Ms. Acevedo faced a statutory maximum of life imprisonment, and a minimum sentence of ten years' imprisonment. Her actual sentence of sixty months' imprisonment not only fell well within the statutory maximum, but was below the statutory minimum penalty because the Government agreed that she was entitled to the "safety valve" provision pursuant to 18 U.S.C. § 3553 (f). Clearly, Petitioner was not deprived of the constitutional]. rights the ruling in Apprendi sought to protect. The Apprendi claim is rejected.
III. Ineffective Assistance of Counsel Claim
Ms. Acevedo also suggests that her Sixth Amendment right to effective counsel was violated when her attorney Robert Weinstein ("Weinstein"), (a) allegedly forced Ms. Acevedo to sign a plea agreement, and (b) failed to advise Petitioner of her appellate rights or of her right to file a § 2255 petition. As a threshold matter, Acevedo's motion must be denied since it was not filed within the one year statute of limitations imposed by the AEDPA for § 2255 motions filed after April 24, 1996. See 28 U.S.C.A. 2244; supra p. 3.
Acevedo pleaded guilty on November 10, 1998 and was sentenced on April 8, 1999. As pointed out earlier, the applicable limitations period commenced on April 18, 1999, the date Ms. Acevedo's conviction became final. Ms. Acevedo did not file the instant petition until December 2000, eight months beyond the date the statute of limitations had tolled. Her petition is therefore untimely under the AEDPA. See 28 U.S.C. § 2255.
In this case, since Petitioner's Apprendi claim has no validity and since Acevedo neither alleges that any new facts arose after the imposition of judgment, nor claims there were government imposed impediments to filing this Motion, the limitations period commenced on April 18, 1999, the date on which the judgment of the conviction became final. See 28 U.S.C. § 2255.
Even if Petitioner's claim were not untimely, it fails on the merits. To prevail on an ineffective assistance of counsel claim, she must first show that her counsel's representation fell below an "objective standard of reasonableness" under "professional norms." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Then, Ms. Acevedo must "affirmatively prove prejudice [showing] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Further, when applying this standard to guilty pleas, the Supreme Court has explained that to prove the necessary prejudice the defendant must show that, "but for the counsel's errors, (s)he would not have pled guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Ms. Acevedo has the burden of demonstrating that her counsel failed to raise "significant and obvious issues" which if raised, would likely have been successful," Mayo v. Henderson, 13 F.3d 528, 533-34 (2d. Cir. 1994), therefore rebutting the "strong presumption that counsel's conduct falls within the `wide range of reasonable professional assistance." United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). Ms. Acevedo fails to meet this burden.
Her counsel conducted himself reasonably in accordance with the above standards. First of all, there is nothing in the record to support the claim that Acevedo's plea was in any way involuntary or coerced. Except for Acevedo's unsworn, self-serving statements, her claim that she was forced into signing her plea agreement is completely unsupported. This Court conducted a thorough and complete plea allocution in which Ms. Acevedo confirmed that she was not induced to plead guilty by any fear, pressure, threat or force of any kind, and where she confirmed that she fully understood everything that was contained in the Plea Agreement before she signed it. Furthermore, even if she had been forced into pleading guilty, Petitioner cannot demonstrate that she suffered any prejudice by entering her guilty plea. By admitting to participating in the conspiracy to sell heroin in the amounts specified in the Plea Agreement, Ms. Acevedo was able to obtain from the Government a safety valve reduction in her sentence that would enable her to receive a sentence below the ten-year mandatory minimum required by 21 U.S.C. § 846. The evidence against Petitioner was strong, and there is no suggestion that, absent the alleged coercion by Weinstein, she would have chosen to go to trial. See Lockhart, 474 U.S. at 59 (noting that the determination of whether the defendant was prejudiced depends on whether the defendant would have chosen to go to trial and whether she would have been likely to prevail). As a result of her guilty plea petitioner received a reduced sentence; counsel's advice to enter into such a plea was, at the very least, objectively reasonable. In this case, the allegations are clearly "insufficient to satisfy the Strickland requirement of `prejudice.'" Id. at 60.
Similarly, the charges that her attorney failed to advise her of her appellate rights and right to file a § 2255 petition are unsubstantiated. The record at sentencing on April 8, 1999, (R. at 6, line 11; R. at 7, lines 6-7), shows that Ms. Acevedo was notified of her appellate rights at sentencing, so she can show no prejudicial effect from her attorney's alleged lapse. See Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000) (noting that it would not be professionally unreasonable for an attorney to decide not to repeat the sentencing court's instructions regarding appeal rights).
IV. The Claim That The Conviction Was Baseless
Acevedo's suggestion that the delay between her arrest and the date the information against her was filed violated her Sixth Amendment right to a speedy trial is meritless. She merely argues that the 170 days provided the Government with too much time to investigate her illegal activity. Furthermore, under the Speedy Trial Act, since Acevedo never made this argument before she pleaded guilty, she has waived it. See 18 U.S.C. § 3162 (a)(2)
Finally, Ms. Acevedo's remaining claims that her conviction was based on "assumptions, not evidence" are also meritless. Section 2255 addresses only those claims alleging a jurisdictional defect, a constitutional error, or an error constituting "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizo, 442 U.S. 178, 185 (1979). Ms. Acevedo's claim that the Government assumed many of the facts that form the basis for the charges to which she pleaded guilty does not constitute either jurisdictional or constitutional errors, nor do they constitute fundamental defects resulting in a complete miscarriage of justice. Therefore, her claim does not support a collateral attack under § 2255.
Her statements as recorded at the sentence proceedings of April 8, 1999 irrevocably demonstrate that Ms. Acevedo's conviction was proper and justified. (R. at 4, lines 16-25).
CONCLUSION
For the reasons detailed above, Acevedo's petition pursuant to 28 U.S.C § 2255 to vacate, correct or set aside her conviction and sentence is hereby denied. Because the Petitioner has not made a substantial showing of denial of a constitutional right, a certificate of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). This case is closed and the Court directs the Clerk of the Court to remove this case from the Court's active docket.