Vega v. USA
Filing
39
ORDER - Because this Court cannot apply Apprendi retroactively to the Petitioners claim regarding his alleged sentencing defects, the 37 Rule 60(b) motion for reconsideration is denied. See Aguiar v. United States, No. 01 Civ. 4117, 2005 WL 525528 (E.D.N.Y. Feb. 22, 2005) (denying the petitioners habeas petition, pursuant to 28 U.S.C. § 2255, wherein he challenged the validity of his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). Ordered by Senior Judge Arthur D. Spatt on 3/27/2012. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JERRY VEGA,
Petitioner,
-against-
ORDER
97-CV-2446 (ADS)
UNITED STATES OF AMERICA,
Respondent.
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APPEARANCES:
JERRY VEGA
Pro Se Petitioner
Din # 88A9231
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929
LORETTA E. LYNCH, UNITED STATES ATTORNEY
EASTERN DISTRICT OF NEW YORK
271 Cadman Plaza East
Brooklyn, New York 11201
By:
Joann Navickas, Assistant United States Attorney
SPATT, District Judge.
In reviewing the Court’s previous decisions, it came to the Court’s attention that the
present case, which has been closed since May 12, 2003, has a pending motion by the Petitioner
Jerry Vega (“Vega” or the “Petitioner”) pursuant to Federal Rule of Civil Procedure (“Fed. R.
Civ. P.”) 60(b) (“Rule 60(b)”), for relief from the Court’s Order dated May 12, 2003, denying
Vega’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2225. The
Court will now address this pending motion.
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I.
BACKGROUND
On November 21, 1990, Vega pled guilty to one count of conspiracy to distribute in
excess of 100 grams of heroin and in excess of 500 grams of cocaine, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(B). He was sentenced on November 15, 1991 to three-hundred-sixty
months, to be imposed consecutive to his prior state term of twenty-five years to life. The
conviction was affirmed by the Second Circuit Court of Appeals on December 3, 1993.
On April 23, 1997, Vega filed a habeas corpus petition pursuant to 28 U.S.C. § 2225,
alleging that: (1) his appellate counsel was ineffective for: (i) failing to request or attend oral
argument on his direct appeal; (ii) failing to argue that the Court should have determined, before
sentencing, the amount of narcotics that was reasonably foreseeable to Vega; and (2) the Second
Circuit unfairly denied his motion for reargument of his direct appeal.
After the Petitioner’s habeas petition had been fully briefed, the Petitioner wrote to the
Court on May 9, 2002 and August 12, 2002, stating that in light of the recent Second Circuit
decisions in U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001), U.S. v. Guevara, 277 F.3d 111 (2d
Cir. 2001), and U.S. v. Kwok Ching Yu, 285 F.3d 192 (2d Cir. 2002), he was requesting an
extension of time in which to amend his pending § 2225 application to reflect recent changes in
the law. (Docket Entry Nos. 27 and 28.) The Court granted the Petitioner’s request and gave
him until April 9, 2003, to file an amendment to his petition. (Docket Entry No. 30.) On April
8, 2003, the Petitioner wrote again to the Court and requested that in light of the recent decision
in Coker v. United States, No. 01 Civ. 5045, 2003 WL 1563374 (S.D.N.Y. Mar. 25, 2003),
which discussed the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), he was seeking an additional fifteen day extension. On
April 15, 2003, the Court permitted Vega one additional and final extension, until May 1, 2003,
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to file an amendment to his habeas petition related to his intended Apprendi and Coker
arguments. (Docket Entry No. 31.)
On May 12, 2003, the Court issued a Memorandum of Decision and Order that denied
Vega’s original habeas petition, finding that he did not sufficiently meet his burden as to the
ineffective assistance of counsel claims and that a habeas petition was not the appropriate vehicle
through which to challenge the Second Circuit’s denial of his motion for reargument. See Vega
v. United States, 261 F. Supp. 2d 175 (E.D.N.Y. 2003) (Spatt, J.). The Court also noted that it
was not considering the Petitioner’s Apprendi claim as an amendment to the habeas petition
because the Court had not received any documentation from him as of May 9, 2003.
However, upon recent inspection of the relevant court filings, it appears that Vega did in
fact submit an amendment to his habeas petition, and did so in a timely manner. The amendment
contains a “filed” stamp from the Clerk’s Office on April 30, 2003, prior to the Court’s mandated
May 1, 2003 deadline. In any event, the Court went on to state in the May 12, 2003 Order that
“having reviewed both Apprendi and Coker, the Court did not find an issue that would change
the outcome of Vega’s instant motion.” Id. at 176.
On May 17, 2004, this Court received a letter from Louis Gonzalez, another prisoner at
the Petitioner’s correctional facility, concerning Vega’s habeas petition. Gonzalez wrote that he
had been working on the Petitioner’s “various legal documents, including his last § 2225 motion
to vacate.” (Docket Entry No. 36.) He stated that Vega was transferred to another facility, and
thus he entrusted Gonzalez with all of his legal documents in order to complete a Rule 60(b)
motion, which he enclosed with the letter. Therefore, the Court is in receipt of a Rule 60(b)
motion from the Petitioner, which was received one year and three days after the Court’s Order.
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It is unclear if the Petitioner is even aware that this Rule 60(b) motion was filed on his
behalf. Given that eight years has passed and the fact that the Court has received no
correspondence from the Petitioner with regard to this motion, the Court assumes that the
Petitioner is not aware that this motion was filed. Moreover, this Rule 60(b) motion was filed
more than one year after this Court’s decision and by a non-party, who is not the Petitioner’s
legal representative and who has not made an appearance in this case. Therefore, from a
procedural standpoint, it is doubtful whether this Court may even proceed to address the motion.
However, there is a compelling reason which, in the interest of justice, the Court shall
proceed at this late date to consider the merit of the Petitioner’s Apprendi arguments. If the
Court is to construe all inferences in the Petitioner’s favor, it appears that the intended
amendment to the Petitioner’s original habeas petition was received in a timely manner, and thus
should have been considered by this Court in 2003. For this reason, the Court should have fully
addressed the Petitioner’s amended claim in its May 12, 2003 decision and thus will consider his
Rule 60(b) motion raising the same arguments.
It is true that, as a general matter, the arguments that the Petitioner wished to amend his
original habeas petition to include and the issues he now seeks to raise in his Rule 60(b) motion
were previously addressed by this Court in its May 12, 2003 decision. See Vega, 261 F. Supp.
2d at 176 (“Further, having reviewed both Apprendi and Coker, the Court did not find an issue
that would change the outcome of Vega's instant motion.”). However, the Petitioner is correct
that the Court’s finding was made without the benefit of reviewing the Petitioner’s argument.
Therefore, the Court will consider the Petitioner’s Rule 60(b) motion to the extent that it
addresses the Petitioner’s previously intended Apprendi claim, which the Court timely received
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but never addressed in connection with the Petitioner’s original habeas petition. However, any
other arguments that the Petitioner raises in his Rule 60(b) motion will not be considered.
II.
DISCUSSION
A. Legal Standard on a Rule 60(b) Motion
As set forth above, the Petitioner is seeking to use the vehicle of a Rule 60(b) motion to
assert several arguments that the Court previously did not fully consider in the initial habeas
petition because the Court deemed the amended arguments to be untimely. Rule 60(b) states the
court may relieve a party or its legal representative from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
If the motion is brought for the reasons stated in (1), (2), or (3), it may not be brought more than
a year after the entry of the judgment or order. Fed. R. Civ. P. 60(c). However, if the motion is
brought under any other subsection, it must be made within a reasonable time.
Here, the Rule 60(b) motion is made on the basis of the Court’s inadvertence, and thus
falls into the realm of Rule 60(b)(6), which concerns any other reason that justifies relief. As the
motion was filed one year and three days after the Court’s Order, the Court finds that the motion
was made within a reasonable time.
In certain circumstances, courts have held that a Rule 60(b) motion is essentially like a
successive habeas corpus petition. McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996)
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(“We agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent
of a successive habeas corpus petition . . .”). As explained by the Supreme Court, in reiterating a
position of Judge Tjoflat of the 11th Circuit,
the difference is defined by the relief that the applicant seeks. Is he seeking relief
from a federal court’s final order entered in a habeas proceeding on one or more
of the grounds set forth in Rule 60(b), or is he seeking relief from a state court’s
judgment of conviction on the basis of a new constitutional claim?
Abdur’Rahman v. Bell, 537 U.S. 88, 123 S. Ct. 594, 154 L. Ed. 2d 501 (2002). As stated by
Judge Tjoflat himself:
“a ‘second or successive’ habeas corpus petition, like all habeas corpus petitions,
is meant to remedy constitutional violations (albeit ones which arise out of facts
discovered or laws evolved after an initial habeas corpus proceeding), while a
Rule 60(b) motion is designed to cure procedural violations in an earlier
proceeding — here, a habeas corpus proceeding — that raise questions about that
proceeding’s integrity.
Mobley v. Head, 306 F.3d 1096, 1100–05 (11th 2002).
In the present case, the Apprendi portion of the Rule 60(b) motion does not raise the
concerns of a successive habeas corpus petition. Rather, the purpose is to cure the procedural
deficiencies that occurred in the original habeas proceeding; namely, that the Petitioner’s timely
amended argument was not considered by the Court. Therefore, the Court will assess the merits
of the Petitioner’s Apprendi claims as asserted through the vehicle of a Rule 60(b) motion.
B. As to the Apprendi Argument
The Petitioner’s arguments rest upon the rule announced in Apprendi, that “any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to
a jury, and proven beyond a reasonable doubt.” 430 U.S. at 489, 120 S. Ct. at 2362. Although it
is not entirely clear on the basis of Vega’s pro se motion, it appears that he is arguing that (1) his
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indictment did not contain a specific drug quantity, so that he was not properly charged; and (2)
he did not allocute to a specific drug quantity, so that he was not properly sentenced.
The Petitioner, acknowledging that the rule announced in Apprendi has been held to not
be retroactive, spends a considerable portion of his Rule 60(b) motion arguing that Apprendi
announced a “new” rule and accordingly should be applied retroactivity on habeas review.
However, it has been conclusively ruled by the Second Circuit that (1) Apprendi announced a
“new” rule of law that was procedural, not substantive; and (2) it was not a watershed rule of
criminal procedure and thus does not apply retroactivity to initial section 2255 motions for
habeas relief. Coleman v. United States, 329 F.3d 77, 82, 84 (2d Cir. 2003) (“the two aspects of
Apprendi’s new rule — the shift from judge to jury and from preponderance-of-the-evidence to
beyond-a-reasonable-doubt — are “procedural” changes that do not apply retroactively on
habeas review.”). While Vega criticizes the decision in Coleman at length, the Court finds these
arguments to be without merit and insufficient to overcome or distinguish this binding precedent.
Therefore, because this Court cannot apply Apprendi retroactively to the Petitioner’s
claim regarding his alleged sentencing defects, the Rule 60(b) motion for reconsideration is
denied. See Aguiar v. United States, No. 01 Civ. 4117, 2005 WL 525528 (E.D.N.Y. Feb. 22,
2005) (denying the petitioner’s habeas petition, pursuant to 28 U.S.C. § 2255, wherein he
challenged the validity of his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000)).
SO ORDERED.
Dated: Central Islip, New York
March 27, 2012
_____/s/ Arthur D. Spatt_________
ARTHUR D. SPATT
United States District Judge
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