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July 25, 2001


The opinion of the court was delivered by: Raggi, District Judge

    Memorandum and ORDER

Humberto Herrera, who was convicted on November 4, 1999 after a jury trial before this court on charges of conspiring to distribute cocaine in violation of 21 U.S.C. § 846, see United States v. Grajales, 98 CR 444(RR), now moves pro se to have his conviction and sentence vacated pursuant to 28 U.S.C. § 2255. Herrera is presently incarcerated, serving a 121 month term of incarceration, which reflects the low end of his 121-151 month guideline range. With the assistance of counsel, Herrera unsuccessfully challenged his conviction on direct appeal. See United States v. Herrera, 216 F.3d 1073 (2d Cir. 2000), summary order available at 2000 WL 839965, 216 F.3d 1073 (2d Cir. 2000). In his present collateral challenge, Herrera asserts that (1) his conviction and sentence are at odds with the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because (a) the indictment in his case failed to allege a specific quantity of drugs, and (b) the jury was not asked to find quantity proved beyond a reasonable doubt; and (2) both his appointed and retained counsel were constitutionally ineffective. The United States opposes Herrera's motion, arguing that it is both procedurally barred from collateral review and without merit. Having carefully reviewed the submissions of the parties, as well as relevant portions of the criminal record, this court agrees and hereby denies Herrera's motion.

Factual Background

By April 1998, Jaime Marin was satisfied that Cepeda could be trusted with the cross-country transport of a large quantity of drugs, and so he arranged for approximately 100 kilograms of cocaine to be moved from Mexico to California where it was delivered to Cepeda. Upon receipt, Cepeda promptly conveyed the drugs to federal law enforcement agents. Subsequent laboratory analysis confirmed that the drugs seized were 85.76 kilograms net weight of cocaine. Estevez and Herrera stipulated to this analysis.

On May 12, 1998, Grajales and Pena met with Cepeda in New York and paid him $20,000 for transporting the cocaine from California. The following day, Cepeda delivered the purported cocaine — now replaced with a sham substance by federal authorities — to Pena. Pena accepted delivery, was promptly arrested, and immediately agreed to cooperate. He placed a series of telephone calls to Jaime Marin and others seeking instructions about where to deliver the cocaine. Thereafter, Pena was contacted on his pager from a New Jersey number subscribed to by petitioner, Humberto Herrera.

As a result of these communications, Pena drove a car purportedly laden with the cocaine to a parking lot in the vicinity of Seventh Avenue and 14th Street in Manhattan. There he met two men previously unknown to him: Hector Toro Davilla and Humberto Herrera. When Herrera asked Pena if the "merchandise [was] concealed in a safe place," Pena replied that it was in the trunk of his car. Trial Trans. at 394. Herrera expressed initial reluctance to drive Pena's car, but Toro-Davilla insisted, stating, "that is what you came for." Id. As Herrera approached Pena's parked car, agents stationed in the vicinity observed him checking the area for signs of law enforcement surveillance. Once Herrera entered the car and attempted to drive away, federal agents placed him under arrest. Telephone records from later that evening revealed a number of calls placed from a cellular telephone subscribed to by Jaime Marin's son Andres to the telephone at Humberto Herrera's New Jersey residence.


I. The Apprendi Claim

In Apprendi v. New Jersey, the Supreme Court held that "any fact" other than a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum," 530 U.S. at 490, 120 S.Ct. 2348, is the "functional equivalent of an element of a greater offense," id. at 494 n. 19, 120 S.Ct. 2348, and "must be submitted to a jury, and proved beyond a reasonable doubt," id. at 490, 120 S.Ct. 2348. Herrera submits that his conviction and sentence run afoul of this holding since he was sentenced pursuant to 21 U.S.C. § 841(b)(1)(A)(ii) (providing for a sentence of 10-years-to-life imprisonment for drug crimes involving "5 kilograms or more of a mixture or substance containing . . . cocaine") without a specific allegation of drug quantity in his indictment or any jury finding that quantity had been proved beyond a reasonable doubt.

A. Procedural Bar

The United States submits that Herrera's Apprendi claim is procedurally barred both (1) because it was not raised on direct appeal, and (2) because Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), generally proscribes the application of new criminal procedural rules on collateral review. See United States v. Mandanici, 205 F.3d 519, 527 (2d Cir. 2000) ("Under Teague, `new rules' of constitutional criminal procedure or novel applications of old rules `are generally not applied retroactively on [collateral] review'" (quoting Bilzerian v. United States, 127 F.3d 237, 240 (2d Cir.1997))). Both arguments are persuasive.

1. Default of Claim on Direct Appeal

As a rule, a petitioner's failure to raise a claim of error on direct appeal constitutes a procedural default that bars collateral review absent a showing of good cause to excuse the default and ensuing prejudice. See Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). While an exception is made for defaulted claims of ineffective assistance of trial counsel in cases where the same attorney represents a party both at trial and on appeal, see Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), no such circumstances apply to Herrera's Apprendi claim.

Indeed, even the fact that the Second Circuit had already refused to treat drug quantity as an element of crimes charged under 21 U.S.C. § 841, 846, e.g., United States v. Campuzano, 905 F.2d 677, 679 (2d Cir. 1990), could not establish good cause to excuse Herrera's default of the claim. In Bousley v. United States, 523 U.S. at 623, 118 S.Ct. 1604, the Supreme Court expressly refused to excuse a petitioner's appellate default of a § 924(c) challenge on the grounds that the Court of Appeals had rejected such claims prior to Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Quoting Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court explained that "futility cannot constitute cause if it means simply that a claim was `unacceptable to that particular court at that particular time.'" Bousley v. United States, 523 U.S. at 623, 118 S.Ct. 1604; accord United States v. Sanders, 247 F.3d 139, 145-46 (4th Cir. 2001) (rejecting argument that procedural default of Apprendi-based claim was excused by futility); United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001) (refusing to find futility sufficient cause to excuse default of Apprendi claim). This conclusion is particularly warranted in Herrera's case given that his brief with the Court of Appeals was filed in February 2000, after the Supreme Court had decided Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the case that foreshadowed Apprendi by holding that the penalty enhancing provisions of the federal car-jacking statute were not mere sentencing factors for the court but rather additional elements that had to be charged and proved. Indeed, by the time Herrera filed his appellate brief, the Supreme Court had granted a writ of certiorari in Apprendi itself. See Apprendi v. New Jersey, 528 U.S. 1018, 120 S.Ct. 525, 145 L.Ed.2d 407 (1999). The question on which ...

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