Opinion
Crim No. 95-21-B
January 12, 2001.
ROBERT C. GRANGER, ESQ.[term 11/08/96], [COR LD NTC ret], ROY, BEARDSLEY, WILLIAMS GRANGER, LLC, ELLSWORTH, ME., JOHN C. MATTES, Esq., [term 11/08/96], [COR LD NTC ret], MIAMI, FL., LEONARD I. SHARON [COR LD NTC ret], SHARON, LEARY DETROY, AUBURN, ME.
ORDER
Petitioner, Bradley Oliver Bowen, on August 28, 2000, filed a habeas corpus petition (Docket # 311) challenging his federal conviction pursuant to 28 U.S.C. § 2255, listing six grounds for relief. After an extension for cause shown, the United States answered on October 12, 2000. (Docket # 314.) On October 16, 2000, Bowen filed a motion to amend the petition to "supplement the issues raised." (Docket # 315.)
Two of the six grounds in the initial petition are typed on an addendum sheet that is attached after the page on which Bowen signed the statutory alternative to the oath. Although far shy of a frontal attack, the United State's answer alludes to this sequence as if it is somehow out of synch with the oath requirements. Although at this point I make no determination as to the merits of these two grounds, I will treat the fifth and sixth grounds as sheltered by Bowen's alternative to the oath.
Under the Federal Rules of Civil Procedure leave to amend after a responsive pleading has been filed must be "freely given when justice so requires." Fed.R.Civ.P. 15(a). Congress has expressly provided that this standard, operative in civil actions, applies to amendments to or supplementation of habeas applications. See 28 U.S.C. § 2242; see also James v. Giles, 221 F.3d 1074,1077-78 (9th Cir. 2000) (observing that Federal Rule of Civil Procedure 15(a) applies to habeas corpus actions just as it does to "garden variety" civil actions); Scott v. Clark, 761 F.2d 1524, 1527 (11th Cir. 1985) (pro se § 2255 petitioner's efforts to amend should have been permitted by the district court under Rule 15(a), even though the petitioner had not sought leave to amend).
After review of the initial petition and offered amendment I conclude that Bowen is not attempting to "amend" his petition to, for instance, add or delete a ground for relief. Rather, I read the motion as proffering a supplementation of argument. The argument offered in the amendment addresses the fourth ground raised in Bowen's original petition, and also addressed in his reply to the United State's answer. (Docket #316.) The text is entirely legal argument and there is no need for further oath. Applying the liberal standard of Rule 15(a) in the context of a first petition for habeas relief, I GRANT his unopposed motion to supplement. The fourth ground in Bowen's petition, as further addressed in his reply brief and motion to supplement, raises the question of whether the sentencing judge, and not the jury, can determine the quantity of the controlled substance in imposing a sentence for an offense when the quantity of the substance dictates under which subsection of the statute a defendant falls and thereby determines the statutory maximum sentence for the offense.
This elasticity in accepting Bowen's pro se submission is appropriate particularly because he will have even more restricted avenues for relief after this first petition is resolved. See cf. Raineri v. United States, 233 F.3d 96, 101 (1st Cir. 2000) ("In an era in which Congress has seen fit to narrow the doorway to habeas relief, fairness concerns dictate that courts take care not to apply the new law woodenly.")
A certificate of service on the local Office of the United States Attorney, dated October 10, 2000, is affixed to Bowen's motion to amend.
Responding to the fourth ground in its answer, the United States has recognized that Bowen is raising an Apprendi v. New Jersey, 530 U.S. 466 (2000) claim. Bowen asserts that the jury should have made a determination of the identity and amount of the drug involved in his offense and the United States ought to have carried its burden as to these "elements" by proof beyond a reasonable doubt. However, the extent of the United State's rebuttal, thus far, is that in Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir. 2000) the First Circuit foreclosed the use of Apprendi in all collateral challenges.
In this regard, Bowen's is a different claim than the defendant in United States v. Baltas, ___ F.3d ___, 2001 WL 1001 (1st Cir. 2001) who, along with other challenges to his conviction and sentence, unsuccessfully asserted an Apprendi claim in a direct appeal of his sentence. Baltas was convicted for conspiracy to possess with intention to distribute heroin, and under the applicable subsection of 21 U.S.C. § 841(b) the quantity of the Schedule I narcotic involved was not determinative of the term of imprisonment. The defendant in United States v. Lafreniere, ___ F.3d ___, 2001 WL 1002 (1st Cir. 2001) suffered the same Apprendi infirmity.
The determination of the identity of the drug may well be a moot issue in light of the decision issued by the First Circuit on Bowen's first direct appeal. See United States v. Bowen, 127 F.3d 9 (1st Cir. 1997) (concluding that the meaning of "hashish oil" was ambiguous prior to the amendments to the Sentencing Guidelines, effective November 1, 1995, and applying the rule of lenity to Bowen's case, requiring the District Court to re-sentence Bowen, treating the "particular, tarry substance" attributed to him as marihuana rather than hashish oil").
I do not read Sustache-Rivera as sweeping so broadly. True, the First Circuit determined that Sustache had an insurmountable hurdle even if the court construed his submission as a first, rather than a second or successive, habeas petition. However, in giving Sustache the benefit of analyzing his case with respect to the wider relief available on a first habeas petition, it dismissed his case only after review of the trial record and pre-sentencing report to see if the petition could withstand scrutiny as a first petition. See Sustache-Rivera, 221 F.3d at 17 (in determining, post-Apprendi, that the defendant was not prejudiced by the fact that the sentencing judge and not the jury determined the occurrence of serious bodily injury, an element of the carjacking offense, reviewing undisputed testimony before the jury that victims were shot at multiple times, both had been hit, with one in the abdomen, and the pre-sentence report representing that a gunshot wound had required amputation of the lower leg). Though the leeway available to Bowen under Apprendi may be minimal in the posture of this collateral review (following two direct appeals), at the very least the inquiry requires an examination of the trial and sentencing record to determine whether the United States can meet its burden under the "`actual prejudice, harmless error test'" to show that the error "did not have `substantial and injurious effect or influence.'" Sustache-Rivera, 221 F.3d at 17-18 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
With the record before me, I cannot even determine if at trial or in the context of either of his two sentencings Bowen raised the issue of amount, as opposed to identity, or his entitlement to a jury determination. See Bousley v. United States, 523 U.S. 614, 622-23 (1998); Sustache-Rivera, 221 F.3d at 14 n. 9.
Therefore, I order the government to further respond to Bowen's fourth ground, providing supplementation to its argument and expansion of the record in light of the concerns raised above. See D. Ct. R. Governing Sec. 2255 Proceedings, Rule 7. This response must be filed by February 2, 2001.