Opinion
98 Civ. 1881 (SWK), 89 Cr. 346 (SWK).
April 19, 2002
OPINION AND ORDER
Pro se petitioner Robert Panton, a/k/a "Bob Lemon" ("Panton") moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence for conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Panton argues that the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), should be applied retroactively to his case.
I. BACKGROUND
On June 13, 1991, a grand jury sitting in the Southern District of New York returned a twenty-count indictment against Panton and his co-defendants. Count One charged Panton with violating Title 21, United States Code, Section 846 by conspiring to distribute and possess with intent to distribute a controlled substance. The object of the conspiracy was the violation of Title 21, United States Code, Section 841(b)(1)(A), through the distribution of more than a kilogram of heroin between April 1987 and May 1989. On January 29, 1992, a jury convicted Panton on Count One and, on May 25, 1994, this Court sentenced Panton to life imprisonment, to be followed by five years supervised release and a mandatory special assessment. On January 19, 1996, the Second Circuit affirmed Panton's conviction. See United States v. Lemon, 100 F.3d 942 (2d Cir. 1996), cert. denied, 519 U.S. 853, 117 S.Ct. 146 (1996).
Panton's initial habeas petition was denied by this Court on October 18, 1999, and, after Panton appealed that decision, the Second Circuit remanded with instructions for this Court to permit Panton to amend his petition and to consider the merits of his claim under Apprendi. However, the Second Circuit denied the remainder of Panton's claims as procedurally barred. Panton's amended petition, which only includes claims based upon Apprendi, is now before the Court.
II. DISCUSSION
A. APPRENDI DOES NOT APPLY RETROACTIVELY ON COLLATERAL REVIEW
Apprendi sets forth the following new rule of criminal procedure: "IIo]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 371 U.S. at 490. It is undisputed that the ruling in Apprendi applies to convictions that preceded the decision where the defendant was challenging the conviction in direct appeal. See United States v. Thomas, 274 F.3d 655 (2d Cir. 2001); Griffith v. Kentucky, 479 U.S. 314, 321-23, 107 S.Ct. 708, 712-14 (1987). However, pursuant to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), a new rule of criminal procedure is not to be applied retroactively to cases on collateral review unless one of the following two exceptions applies: (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;" or (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, 110 S.Ct. 2822, 2831 (1990)). As demonstrated below, neither of these exceptions applies to Apprendi.
First, the rule announced in Apprendi clearly does not meet the first exception. It does not address an entire category of primary criminal conduct, nor does it prohibit imposition of a certain type of punishment based upon an offender's status or offense. See Bilzerian, 127 F.3d at 241.
The second exception is also inapplicable to Apprendi. Under Teague and its progeny, "watershed rules" are those which "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311) (emphasis in original); see also Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651 (S.D.N.Y. March 21, 2002) (holding Apprendi cannot be considered a watershed rule" of criminal procedure and refusing to apply the rule retroactively on collateral review); Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, *2 (S.D.N.Y. Jan. 11, 2002) (holding Apprendi does not apply retroactively to cases on collateral review); Rivera v. United States, 136 F. Supp.2d 263 (S.D.N.Y. 2001). In fact, it is extremely rare for a case to meet the high standard set forth in Teague. See Garcia, 2002 WL 42888 at *2 (of the eleven new or proposed rules of criminal procedure the Supreme Court has reviewed against the criteria for the second Teague exception, in not one instance has the Court held that the rule should apply retroactively); United States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000).
"The rule in Apprendi — requiring any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt — falls short of Teaciue's high standard." Garcia, 2002 WL 42888 at *2. Apprendi merely shifts the determination of factors that enhance the maximum statutory penalty from the judge to the jury. See id. In similar circumstances, the Second Circuit held that a new rule which shifts the deterjnination of an element of a crime from the judge to the jury was not a watershed rule" under the Teague standard. See Bilzerian, 127 F.3d at 241 (holding that the rule stated in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995), shifting the determination of materiality from the judge to the jury in prosecutions for concealing a material fact from a federal entity, does not fit within the second exception in Teague). Therefore, Apprendi should not be applied retroactively to cases on collateral review.
In addition to the recent decisions in this District that determined the rule in Apprendi should not be applied retroactively on collateral review, at least four other circuits have also made the same determination. See, e.g., United States v. Sanders, 247 F.3d 139, 150 (4th Cir.) ("we do not read Apprendi to hold that the country's criminal justice system malfunctioned so fundamentally prior to the year 2000 as to merit the retroactive application of the Court's new procedural rule."), cert. denied, ___ U.S. ___, 122 S.Ct. 573 (2001); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) ("we hold today that Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review."), cert. denied, ___ U.S. ___, 122 S.Ct. 848 (2002); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000) ("we find that the non-retroactivity principle announced in Teague v. Lane prevents [p]etitioner from benefitting from Apprendi's new rule on collateral review"); and In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000).
The Court notes that it is aware of United States v. Cotton, 261 F.3d 397 (4th Cir. 2001), cert. granted, 122 S.Ct. 803 (2002), which may allow the retroactive application of Apprendi.
Following the ample precedent set forth by the previous cases decided in this District and around the country, it is evident that the new rule of criminal procedure announced in Apprendi should not be applied retroactively to cases on collateral review. As a result, Panton's motion is therefore denied.
B. PANTON SUFFERED NO PREJUDICE FROM THE ABSENCE OF A JURY FINDING AS TO THE QUANTITY OF HEROIN
Assuming for purposes of argument that Apprendi is retroactively applicable and may not be distinguished on its facts, Panton is unable to show any actual prejudice resulting therefrom or that he is actually innocent of the crime for which he was convicted. See Rivera, 136 F. Supp.2d at 264; DeJesus v. United States, 161 F.3d 99, 102-03 (2d Cir. 1998); Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611 (1998).
Title 21, United States Code, Section 841(b)(1)(A) authorizes increased statutory maximum sentences based upon the quantity and type of controlled substance involved in the offense. Thus, while a violation of Section 841(b)(1)(C) carries a statutory maximum penalty of twenty years imprisonment for an indeterminate amount of narcotics, if the Government establishes at trial that the offense involved one kilogram or more of heroin, then the penalty provisions of Section 841(b)(1)(A) apply, including an increased statutory maximum penalty of life imprisonment.
The Presentence Report (PSR) prepared by the Probation Department recommended that Panton be held accountable for 41 kilograms of heroin, based upon the length of time Panton owned and operated the heroin distribution spot on 122nd Street and the amount of heroin distributed through that location. See PSR at ¶ 115. This Court accepted the recommendation of the PSR and found, by a preponderance of the evidence, that Panton was responsible for the possession and distribution of over 41 kilograms of heroin and sentenced Panton to life imprisonment on that basis. However, since the jury was not asked to determine the quantity of heroin that Panton should have been held accountable for, the sentence violated the rule in Apprendi, if it was to be applied retroactively to this case.
Panton, because of his failure to raise the issue in Apprendi on direct appeal, may benefit from its ruling only if the sentencing of him in disregard of it was in plain error. See United States v. Jackson, 236 F.3d 886, 887-88 (7th Cir. 2001). However, in order for Panton to prevail under the pla.tn-error standard, he must show that the error was prejudicial, that is, that there is "some likelihood that the judgment would have been different had the error not been made." Jackson, 236 F.3d at 888. Failure to submit the issue of drug quantity to the jury is a harmless error that does not require reversal. See id. "Apprendi did not recognize or create a structural error that would require per se reversal." United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000). "[A] constitutional error is harmless if "it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" Id. (quoting Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 1838 (1999)). Therefore, if the evidence that Panton's offense involved a kilogram of more of heroin is "overwhelming," he is not entitled to be resentenced on the basis of Apprendi. United States v. Jackson, 236 F.3d at 888.
The record in this case does not contain evidence that could rationally lead to a contrary finding with respect to the amount of narcotics attributable to Panton. There was overwhelming evidence that Panton was a high-level member of George Rivera's drug organization and that he was intimately involved in the affairs of the 122nd Street spot. The evidence demonstrated that Panton was responsible for distributing approximately 41 kilograms of heroin through the 122nd Street spot. Furthermore, it was shown that during the Summer of 1988, he received three shopping b, ags each full of $64,000 of heroin to distribute at that spot. No reasonable jury could have failed to convict Panton of being involved in the distribution of several kilograms of heroin. Therefore, the failure to ask the jury to determine whether the amount of heroin at issue was one kilogram or more was harmless far beyond a reasonable doubt. Retroactive application of the rule in Apprendi would not serve to change Panton's sentence.
III. CONCLUSION
Therefore, for the reasons set forth above, Panton is not entitled to relief under Apprendi v. New Jersey, and his motion to vacate his sentence is denied.