Opinion
Nos. EP-05-CA-178-DB, EP-03-CR-659-DB.
August 9, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Guillermo Castanon's ("Castanon") Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Amended Motion to Vacate") [Docket no. 96], filed through counsel on July 28, 2005. For the reasons discussed below, the Court concludes that Castonon's claim is procedurally barred and that his Amended Motion to Vacate should accordingly be dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Cases. I. BACKGROUND A. Criminal cause EP-03-CR-659-DB
On May 28, 2003, the Grand Jury sitting in El Paso, Texas returned a five-count Superseding Indictment against Castanon and two co-defendants. The Superseding Indictment named Castanon in only two counts, charging him with possession of 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii) (Count One); and conspiracy to possess 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, with the intent to distribute it, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(viii) (Count Two).
Castanon decided to forego trial. Instead, he chose to accept a plea agreement in which he consented to plead guilty to Count One of the Superseding Indictment in exchange for the Government's dismissal of the remaining counts then pending against him. He accordingly entered a plea of guilty on September 1, 2003. The Court accepted his plea the same day and set the matter for sentencing. The Court entered Judgment on March 15, 2004, sentencing Castanon to a 360-month term of imprisonment, a 5-year term of non-reporting supervised release, and a $100 special assessment.
Castanon appealed, arguing for the first time that the Court's upward adjustments to his sentencing range violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and constituted plain error. He acknowledged that the Fifth Circuit Court of Appeals' opinion in United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), foreclosed his argument, but sought to preserve the claim for further review. Castanon further contended that this Court erred by not awarding him a two-level downward safety valve adjustment or a downward adjustment for a mitigating role. Lastly, he asserted that his waiver of the right to appeal his sentence was unknowing and involuntary because he suffered from an unspecified psychiatric condition.
In an Order dated December 16, 2004, the Fifth Circuit Court of Appeals agreed that circuit precedent barred his Blakely claim. It further rejected Castonon's claim that his guilty plea and concomitant waiver of appellate rights was involuntary. It therefore declined to reach Castanon's contentions regarding this Court's application of the sentencing guidelines. Castanon did not seek a petition for a writ of certiorari from the Supreme Court.
B. Castanon's Amended Motion to Vacate
Castanon raises one claim in his Amended Motion to Vacate, arguing that the Court imposed his sentence in a manner that violates United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738 (2005), because the facts on which this Court based his sentencing enhancements were not admitted to by Castanon or found by a jury beyond a reasonable doubt.
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." To satisfy the "cause" standard, a petitioner must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
Gaudet, 81 F.3d at 589.
Id.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for summary dismissal and cause the movant to be notified." USCS § 2255 Proc. R. 4(b) (2004).
III. DISCUSSION
In United States v. Pineiro, 377 F.3d 464 (2004), the Fifth Circuit Court of Appeals held that the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), did not apply to the United States Sentencing Guidelines. As noted above, the Court of Appeals relied on the Pineiro decision when, on December 16, 2004, it denied Castanon's claim that his sentence violated the holding of Blakely. However, when the Supreme Court released the Booker decision on January 12, 2005, approximately one month later, it extended the rule announced in Blakely to the federal sentencing scheme. It additionally vacated the Fifth Circuit's opinion in Pineiro, as that ruling was clearly inconsistent with Booker.
United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738 (Jan. 12, 2005).
United States v. Pineiro, 377 F.3d 464 (2004), vacated remanded by Pineiro v. United States, ___ U.S. ___, ___, 125 S. Ct. 1003 (Jan. 24, 2005).
As of the date of Booker's release, it was too late for Castanon to file a petition for the Court of Appeals to rehear his Blakely claim in light of the Booker decision. It was not, however, too late for Castanon to petition the Supreme Court for a writ of certiorari, because as of January 12, 2005, only 27 days of the 90-day period for seeking such relief had expired. For reasons that are not clear to this Court, Castanon did not seek a writ of certiorari, but rather allowed the 90-day period to pass without action on March 16, 2005. Some two months after his deadline for filing a petition for writ of certiorari expired, Castanon filed his original Motion to Vacate.
See FED. R. APP. P. 40(a)(1) (stating that, in a criminal case, a petition for panel rehearing must be filed within 14 days after the entry of judgment).
See SUP. CT. R. 13.
It is well settled that a collateral challenge may not substitute for an appeal. Here, although Castanon initially preserved his Booker issue for later review, he utterly failed to take advantage of the remedy available to him by filing a petition for writ of certiorari. Under such circumstances, the Court finds that Castanon has waived his present claim for relief and is therefore not entitled to a collateral review on the merits. IV. CERTIFICATE OF APPEALABILITY
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Castanon's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claim for relief.
V. CONCLUSION
In sum, the Court concludes that Castanon waived his present claim by failing to seek relief in a petition for a writ of certiorari. Therefore, his Amended Motion to Vacate should be summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Cases. Accordingly:
1. Petitioner Guillermo Castanon's Amended Motion to Vacate, Correct, or Set Aside Sentence pursuant to 28 U.S.C. § 2255 [Docket no. 96], filed on July 28, 2005, is DISMISSED WITH PREJUDICE.
2. Petitioner Guillermo Castanon is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED as MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order denying Petitioner Guillermo Castanon's Amended Motion to Vacate, Set Aside or Correct Sentence, filed on July 28, 2005, pursuant to 28 U.S.C. § 2255. The Court further denied Petitioner a Certificate of Appealability regarding his claim. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. Accordingly,IT IS ORDERED that Petitioner Guillermo Castanon's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS ALSO ORDERED that Petitioner Guillermo Castanon is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.
The Clerk shall close this case.