Leon v. USA
Filing
9
Ruling re 1 MOTION for Alleyne Relief filed by Alexander Leon The court DENIES Leons Petition for Writ of Audita Querela. The Clerk is hereby directed to close this case. Signed by Judge Janet C. Hall on 7/23/2015.(Malone, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALEXANDER LEON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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CIVIL ACTION NO.
3:14-CV-01803 (JCH)
JULY 23, 2015
RULING ON PETITION FOR WRIT OF AUDITA QUERELA (Doc. No. 1)
Petitioner Alexander Leon (“Leon”), pro se, has filed a “Petition for Writ of Audita
Querela” under the All Writs Act, 28 U.S.C. § 1651(a).
Leon argues that his criminal
sentence was improperly based on drug quantities found by the court at sentencing,
rather than found by the jury, in violation of the Supreme Court’s decision in Alleyne v.
United States, 133 S.Ct. 2151 (2013), and seeks resentencing on this basis.
The
government responded to Leon’s claims in a Response filed on April 6, 2015.
Government’s Response to Order to Show Cause (Doc. No. 7) (“Gov’t’s Resp.”).
For the reasons set forth below, Leon’s Petition is DENIED.
I.
BACKGROUND
On February 4, 1994, a jury found Leon guilty of one count of conspiracy to
distribute cocaine and cocaine base in violation of 21 U.S.C. § 846 (count one), and two
counts of possession with intent to distribute and distribution of more than 5 grams of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (counts two and four),
as charged in a first superseding indictment.
United States v. Leon et al., No.
3:93-CR-00199-JCH, Verdict (Doc. No. 198).
On September 28, 1994, the court
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sentenced Leon to a term of life imprisonment on Count One, 480 months on Count
Two, and 480 months on Count Four, to run concurrently.
305).
Id., Judgment (Doc. No.
At sentencing, the court determined that the drug quantity involved in the
offense was 51 kilograms of cocaine base, id., Presentence Investigation Report (Doc.
No. 536-2) (“PSR”) ¶ 87, which under the guidelines then in effect would have resulted
in a base offense level of 42.
However, in light of impending amendments to the
guidelines, the sentencing judge departed to a base offense level of 38.
Id.,
Statement of Reasons (Doc. No. 536-3) (“SOR”); id., Sentencing Transcript (“Sent. Tr.”)
at 64:16-65:19.
Leon also received guidelines enhancements based on his role as a
leader in the offense and on his possession of a firearm during the course of the
offense, resulting in a total offense level of 43. 1 Sent. Tr. at 65:17-19; PSR ¶ 88, 89.
Along with Leon’s criminal history category of I, this resulted in a then-mandatory
guideline range of life imprisonment.
Leon appealed his conviction and sentence. The Second Circuit affirmed the
judgment of the district court.
United States v. Leon et al., No. 3:93-CR-00199-JCH,
Mandate of USCA dated Aug. 23, 1995 (Doc. No. 388).
On November 28, 2000, Leon
moved to vacate or modify his sentence pursuant to 28 U.S.C. § 2255.
U.S.A., No. 3:00-CV-02261-PCD, Motion (Doc. No. 1).
Leon v.
On July 19, 2001, his motion
was denied as filed outside the one-year-statute of limitations for petitions under section
2255.
United States v. Leon et al., No. 3:93-CR-00199-JCH, Ruling (Doc. No. 449).
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The PSR also recommended an enhancement for obstruction of justice, PSR ¶ 91, which the
court declined to apply. Sent. Tr. at 6:25-7:3. Leon’s total offense level after these enhancements was
44, which became 43 pursuant to Chapter 5 part A application note 2 of the sentencing guidelines.
U.S.S.G. Ch. 5 Pt. A note 2; Sent. Tr. at 65:17-19.
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Leon then filed a motion to alter or amend the judgment denying his section 2255
motion, pursuant to Fed. R. Civ. P. 59(e) and 60, arguing that his sentence violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the statute of limitations for his
section 2255 petition should have run from the date of the Apprendi decision.
court denied his Motion on March 31, 2003.
22351290, at *1 (D. Conn. Mar. 31, 2003).
The
Leon v. United States, 2003 WL
Leon filed another motion for relief from
judgment on January 30, 2006, arguing that under Apprendi, Blakely v. Washington,
542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), the sentence
he received was unconstitutional.
The court denied his motion on December 12, 2006.
Leon v. United States, 2006 WL 3694606, at *1 (D. Conn. Dec. 12, 2006).
Leon filed the instant Petition on November 25, 2014.
He argues that pursuant
to the Supreme Court’s decision in Alleyne, a new defense has arisen since the
imposition of his criminal judgment that could not have previously been raised.
1, 7.
Pet. at
He further argues that the writ of audita querela is the proper vehicle to bring his
claim because he has no other available post-conviction remedies, that to deny him the
opportunity to be heard would create a manifest injustice, and because he is “actually
innocent” of the crime that formed the basis for the life sentence, 21 U.S.C. §
841(b)(1)(a).
II.
Pet. at 7.
DISCUSSION
A writ of audita querela remains available in limited circumstances with respect
to criminal convictions; namely, “it is probably available where there is a legal, as
contrasted with an equitable, objection to a conviction that has arisen subsequent to the
conviction and that is not redressable pursuant to another post-conviction remedy.”
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U.S. v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (internal quotation and citations
omitted).
The Second Circuit has stated that a writ of audita querela “might be
deemed available if [its] existence were necessary to avoid serious questions as to the
constitutional validity of both § 2255 and § 2244.” Id.
Courts analyzing the issue
have also determined that the writ is “generally not available to review a criminal
conviction when the petitioner could have raised his or her claims in a 28 U.S.C. § 2255
motion.” Persico v. U.S., 418 F. App’x 24, 25 (2d Cir. 2011) (summary order) (citing
examples from the 10th, 9th, and 7th Circuits).
Leon has not presented circumstances in which the application of this form of
relief would be available.
His Petition clearly falls within the scope of section 2255,
which is the proper vehicle for a federal prisoner to challenge the imposition of his
sentence.
Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001).
The claims
presented either were or could have been brought in his earlier section 2255 motion. 2
Thus, a writ of audita querela is not available, even if Leon is barred from bringing a
section 2255 motion because a previous 2255 petition was denied on the merits.
See
Persico, 418 F. App’x at 25-6; U.S. v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir.
2001).
Even assuming Leon could not have previously brought his Alleyne claim, the
Second Circuit has explicitly stated that the Supreme Court’s decision in Alleyne “did
2
While Leon styles his argument as based on Alleyne – which held that any fact that served to
increase a mandatory minimum must be found by a jury – Leon’s sentence was not based on a mandatory
minimum. Rather, he received the statutory maximum of life. Leon’s argument that his statutory
maximum sentence was unconstitutionally increased based on findings made by the sentencing judge is
more appropriately an argument under Apprendi, which Leon raised in his section 2255 motion.
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not announce a new rule of law made retroactive on collateral review.” U.S. v. Redd,
735 F.3d 88 (2d Cir. 2013).
Thus, Leon has no colorable claim of a constitutional
violation based on Alleyne, and the absence of other avenues of collateral attack does
not give rise to “serious constitutional questions.” 3 Richter, 510 F.3d at 104, see Ortiz
v. United States, 2013 WL 541388, at *2 (S.D.N.Y. Feb. 8, 2013).
IV.
CONCLUSION
For the reasons set forth above, the court DENIES Leon’s Petition for Writ of
Audita Querela (Doc. No. 1).
The Clerk is hereby directed to close this case.
SO ORDERED.
Dated this 23rd day of July, 2015, at New Haven, Connecticut.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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In his Reply, Leon cites to Kessack v. United States, 2008 WL 189679 (W.D. Wash. Jan. 18,
2008), an unreported decision from the Western District of Washington, for the propositions that 1) a writ
of audita querela is available, and 2) Alleyne may be applied retroactively on a writ of audita querela even
if it is not retroactive on collateral attack pursuant to section 2255. Petitioner’s Reply in Support of Order to
Show Cause (Doc. No. 8) (“Rep.”) at 9-11. While the court does not disagree with Leon’s analysis of this
case, it is contrary to the law of this Circuit, as set forth, supra,,at 3-5. Indeed, it also does not appear to
be good law in the Ninth Circuit. United States v. Gamboa, 608 F.3d 492, 495 (9th Cir. 2010) (Kessack
“is contrary to the law of this Circuit”).
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