Londono-Marin v. United States of America

Filing 3

ORDER: The Court's 2 order to show cause is vacated and the petitioner's 1 motion to vacate, set aside or correct sentence is hereby denied. Ordered by Judge John Gleeson on 10/16/2013. (Herling, Adam)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK MARIA LONDONO-MARIN, Petitioner, - versus - ORDER 13-cv-5488 UNITED STATES OF AMERICA, Respondent. JOHN GLEESON, United States District Judge: On March 13, 2008, Maria Londono-Marin pled guilty to conspiring to import over one kilogram of heroin into the United States, in violation of 21 U.S.C. §§ 963, 960(a)(1) and 960(b)(1)(A). On August 7, 2008, I sentenced Londono-Marin to the statutory mandatory minimum ten years of imprisonment to be followed by five years of supervised release. See 21 U.S.C. § 960(b)(1)(A). Londono-Marin brings this collateral attack pursuant to 28 U.S.C. § 2255 requesting that her sentence be vacated, set aside, or corrected in light of Alleyne v. United States, 133 S.Ct. 2151 (2013). On October 8, 2013, I issued an order for the government to show cause why the petition should not be granted. On further reflection, I hereby vacate that order and deny the petition. In Alleyne, the Supreme Court held that any fact that increases a mandatory minimum sentence for a crime “is an ‘element’ that must be submitted to the jury” and proven beyond a reasonable doubt. 133 S.Ct. at 2155. Alleyne does not apply here for two reasons. First of all, in this case, Londono-Marin pled guilty to the charged offense and allocuted to all of the facts necessary for the application of the ten-year mandatory minimum. It is well settled that an admission by a defendant in a guilty plea to the underlying offense conduct is equivalent to a jury determination. See United States v. Champion, 234 F.3d 106, 110 & n.3 (2d Cir. 2000); see also Morris v. Reynolds, 264 F.3d 38, 48-49 (2d Cir. 2001). Accordingly, because LondonoMarin admitted in open court each factual element necessary to trigger the mandatory minimum, I did not determine any of these elements by a preponderance of the evidence and Alleyne is inapplicable. See United States v. Doe, 66 F. App’x 249, 252 (2d Cir. 2003) (unpublished) (“When a defendant is sentenced based on a plea in which he admits to the sentencing facts, Apprendi is not implicated.”). Second, even if Alleyne was implicated by the facts presented here, LondonoMarin’s conviction is final and Alleyne would not apply retroactively. 1 “New rules of procedure . . . generally do not apply retroactively.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004). New procedural rules only apply retroactively if they constitute “watershed rules of criminal procedure.” Teague v. Lane, 489 U.S. 288, 311 (1989). In Coleman v. United States, 329 F.3d 77 (2d Cir. 2003), the Second Circuit held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), was not “watershed,” and thus cannot be applied to cases on collateral review. The Supreme Court held in Apprendi that except for 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.” 530 U.S. at 490. Because Alleyne is essentially an extension of Apprendi, it is also likely not to be considered by the Supreme Court to constitute a “watershed” rule. This conclusion is further supported by the fact that the Supreme Court has decided that Apprendi does not apply retroactively on collateral review in a 1 Judgment was entered against Londono-Marin on September 4, 2008, and she did not appeal. Thus, her conviction became final when the time to file a notice of appeal expired, ten days later. See Gonzalez v. Thaler, 132 S.Ct. 631, 652-53 (2012) (conviction becomes final when the time for filing appeal expires); Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (same); Fed. R. App. P. 4(b)(1) (10 days to appeal criminal conviction after judgment is entered; amended in 2009 to 14 days). 2 similar setting. See Schriro v. Summerlin, 542 U.S. 348 (2004). Thus, the general rule against retroactivity applies to the rule announced in Alleyne, unless and until the Supreme Court decides otherwise. See Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (Alleyne is not retroactive); Rose v. United States, No. 13-cv-5885, 2013 WL 5303237 (S.D.N.Y. Sept. 20, 2013) (same). 2 For the reasons stated above, Londono-Marin’s § 2255 habeas motion is hereby denied. Because there has not been a substantial showing of the denial of a constitutional right, I decline to issue a Certificate of Appealability. The Clerk of the Court is respectfully requested to close this case. So ordered. John Gleeson, U.S.D.J. Dated: October 16, 2013 Brooklyn, New York 2 The Second Circuit has yet to address whether Alleyne applies retroactively. I need not address here the timeliness of Londono-Marin’s petition. 3

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