Opinion
02 Civ. 2308 (PKL), 95 Cr. 941 (PKL).
June 15, 2005
MEMORANDUM ORDER
On April 10, 1997, a jury found Pedro Narvaez ("petitioner") guilty of various racketeering, narcotics and firearms offenses arising from his participation in a racketeering enterprise known as the "Nasty Boys." Following his conviction, petitioner filed a direct appeal with the Second Circuit. On September 8, 2000, the Second Circuit affirmed petitioner's conviction, see United States v. Muyet, 225 F.3d 647 (2d Cir. 2000), and on March 5, 2001, the United States Supreme Court denied his petition for a writ of certiorari, see Narvaez v. United States, 532 U.S. 913 (2001). The following year, petitioner, acting pro se, filed a timely § 2255 petition seeking collateral review of his conviction. This Court denied that petition on July 28, 2003. Petitioner subsequently applied to the Second Circuit for a certificate of appealability. On February 24, 2005, petitioner filed an Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. On March 31, 2005, the Second Circuit vacated this Court's denial of petitioner's first § 2255 petition and directed the Court to construe petitioner's second application as a motion to amend his first petition. Accordingly, the Second Circuit instructed the Court to consider whether the issues raised in the second petition relate back to the issues raised in the initial § 2255 petition.
Section 2255 provides that a "1-year period of limitation shall apply to a motion under this section," that will typically run from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255. Petitioner's conviction became final when the Supreme Court denied his petition for writ of certiorari on March 5, 2001. Thus, pursuant to 28 U.S.C. § 2255, the statute of limitations here expired on March 5, 2002. Petitioner filed his second petition on February 24, 2005. However, because petitioner's second application is to be construed as a motion to amend rather than a successive habeas petition, the standard for assessing his application is governed by Federal Rule of Civil Procedure 15. Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001). Subsection (c) of Rule 15 is applicable when, as here, the statute of limitations for the underlying cause of action has already run. Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 815 (2d Cir. 2000). Under Rule 15(c), an amendment is timely if it "relates back" to the original motion. Fed.R.Civ.P. 15(c). Rule 15(c) provides, in relevant part, that "[a]n amendment of a pleading relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading." Fed.R.Civ.P. 15(c)(2). Further, in determining whether an amendment arises out of the same conduct, transaction or occurrence, the Second Circuit has advised that "the pertinent inquiry . . . is whether the original complaint gave the defendant fair notice of the newly alleged claims." Fama, 235 F.3d at 815 (quoting Wilson v. Fairchild Republic Co., 143 F.3d 733, 738 (2d Cir. 1998)).
In his original § 2255 motion, petitioner claimed that (1) this Court lacked subject matter jurisdiction over numerous counts; (2) he lacked notice of the charged offense due to the indictment's omission of the term "willful" as an essential element of conspiracy; (3) the jury charge presented by this Court constructively amended the indictment; (4) trial counsel provided ineffective assistance by failing to inform him of the consequences of rejecting the Government's plea offer; (5) appellate counsel provided ineffective assistance; and (6) this Court erred in calculating his sentence. The Court rejected each of these arguments in its now vacated Opinion and Order dated July 28, 2003. See Narvaez v. United States, Nos. 95 Cr. 941, 02 Cv. 2308, 2003 WL 21749638 (S.D.N.Y. July 28, 2003). In his motion to amend, petitioner does not revise any of his original claims but only argues that he is entitled to collateral relief from his sentence based on the Supreme Court's recent decision inCrawford v. Washington, 541 U.S. 36 (2004). Petitioner contends that he was denied his Sixth Amendment right to confront witnesses when, at trial, a plea allocution of a former co-defendant was used to prove specific facts that inculpated him.
Although district courts have been provided some guidance for determining whether a second habeas petition relates back to the first petition, see Fama, 235 F.3d at 815, the issue has not been fully resolved in this Circuit and is the subject of some disagreement among other circuits. Compare United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (refusing to find that an amendment relates back when it contains new theories or facts not raised in the original habeas petition) and Davenport v. United States, 217 F.3d 1341, 1344-45 (11th Cir. 2000) (same)and United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir. 2000) (same) and United States v. Duffus, 174 F.3d 333, 337-38 (3rd Cir. 1999) (same) and United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999) (same) with Felix v. Mayle, 379 F.3d 612, 615 (9th Cir. 2004) (holding that new theories are permissible because they relate back to the trial and conviction, which constitute the "conduct, transaction, or occurrence" under Rule 15(c)) and Ellzey v. United States, 324 F.3d 521, 526-27 (7th Cir. 2003) (same). However, to ensure that petitioner's newly raised Crawford argument is addressed, the Court will assume that petitioner's motion to amend relates back to his original petition.
In Crawford, the Supreme Court held that an out-of-court testimonial statement is inadmissible against a criminal defendant unless the witness is not available to testify and the defendant had a prior opportunity for cross-examination. 541 U.S. 36, 68 (2004). Petitioner claims that, under Crawford, he was denied his Sixth Amendment rights when, at trial, a plea allocution of a former co-defendant was admitted into evidence. However, even if Crawford is relevant here, petitioner is entitled to collateral relief from his sentence only ifCrawford applies retroactively.
The Supreme Court has made it clear that a new rule is not "made retroactive to cases on collateral review" unless the Supreme Court holds it to be retroactive. Tyler v. Cain, 533 U.S. 656, 663 (2001). To date, the Supreme Court has not held that the rule enunciated in Crawford is retroactive. Moreover, in Teague v. Lane, the Supreme Court ruled that, with two exceptions, new constitutional rules of criminal procedure are not applicable to those cases which have become final before the new rules are announced. 489 U.S. 288, 310 (1989). Because petitioner's conviction became final on March 5, 2001, more than three years before Crawford was decided, the rule of Crawford may only be applied if it falls into one of the two exceptions. The first exception, not relevant here, is that "a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'"Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)). The second exception applies to new "watershed rules of criminal procedure" that are essential to the fundamental fairness of the criminal proceeding. Id. at 311-13. The Supreme Court has not characterized Crawford as a "watershed rule" and to the contrary, the Second Circuit has expressly stated that it is not a "watershed rule" and should not be applied retroactively on collateral review. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (noting that Crawford is not essential to the fundamental fairness of a proceeding because it may serve to preclude admission of highly reliable out-of-court testimony that would have previously been admissible). Therefore, according to Supreme Court and Second Circuit authority, petitioner may not avail himself of the Crawford rule in this case, and the Court finds that petitioner is not entitled to collateral relief on that basis.
As noted above, petitioner has not altered any of the arguments proffered in his initial § 2255 motion and the only additional argument contained in his motion to amend is based on Crawford. Because petitioner's Crawford argument fails for the reasons set forth above and the arguments advanced in his first petition remain unpersuasive for the reasons delineated in the Court's denial of his first petition, petitioner's § 2255 motion as amended is DENIED.
SO ORDERED.