The opinion of the court was delivered by: Marrero, District Judge.
On June 19, 2001, Petitioner Nelson Vargas ("Vargas"), acting
pro se, filed a
petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2255, to vacate, set aside or correct his sentence, asserting
that, in light of 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 had been improperly sentenced for his offense because
the jury that convicted him made no specific findings of the
quantity of narcotics involved in his offense. By letter dated
November 30, 2001, the Government opposed the petition,
contending that: (1) Vargas's petition is time barred; (2)
Apprendi does not apply retroactively to cases on collateral
review; and (3) Vargas's Apprendi claims are barred because he
failed to raise them on direct appeal. On January 8, 2002,
Vargas filed a reply to the Government's opposition. For the
reasons discussed below, the Court finds that Apprendi does
not apply retroactively to this case and accordingly, Vargas's
petition is time barred.
On December 20, 1988, the Government filed Indictment No. 88
Cr. 325, alleging, among other things, that Vargas conspired to
distribute more than one kilogram of heroin, in violation of
21 U.S.C. § 846. On December 20, 1989, a jury convicted Vargas of
this charge and on October 18, 1991, the Honorable David N.
Edelstein sentenced Vargas to 480 months imprisonment and five
years of supervised release. Vargas filed an appeal to his
conviction and sentence, which was denied on May 14, 1992.
(See Exhibit B, attached to Government's Letter in Opposition
to Petitioner-defendant Nelson Vargas's Petition, dated November
30, 2001 ("Gov't Ltr.")).
In the Anti-terrorism and Effective Death Penalty Act of 1996,
Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), Congress
introduced new time limits on when a prisoner in federal custody
may file a petition for a writ of habeas corpus. AEDPA amended
Title 28, United States Code, Section 2255 ("§ 2255") to
provide that a prisoner in federal custody must file a petition
for a writ of habeas corpus within one year from the later to
(1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment
to making a motion created by governmental action
in violation of the Constitution or laws of the
United States is removed, if the movant was prevented
from making a motion by such governmental action; (3)
the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or (4) the date on which the facts supporting
the claim or claims presented could have been
discovered through the exercise of due diligence.
Vargas's petition is clearly untimely under subsections one,
two and four of § 2255: His conviction became final on May 14,
1992 and the Second Circuit has stated that the last day for
petitioners in Vargas's position to file a habeas petition was
April 24, 1997, one year after AEDPA became effective. See
Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998).
Vargas's petition is untimely under § 2255(1) because he filed
his petition on June 19, 2001, more than four years after April
1997. Furthermore, Vargas's petition is untimely under § 2255(2)
and (4) because he neither alleges that he was prevented from
making a motion due to unconstitutional or unlawful governmental
action nor that there are newly discovered facts supporting his
claim for relief.
Vargas's principal contention is that, in light of the Supreme
Court's decision in Apprendi, his petition is timely under §
In Apprendi, the Supreme Court established a new rule of
criminal procedure, holding that "[o]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." 530 U.S. at
490, 120 S.Ct. 2348. An opinion of the Supreme Court announces a
new rule of criminal procedure if "the result was not dictated
by precedent existing at the time the defendant's conviction
became final." Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989). While addressing the same question
of whether Apprendi applies retroactively, Judge Chin recently
noted that "Circuit courts are in general agreement that
Apprendi sets forth a new rule of criminal procedure."
Raulston v. Menifee, No. 01 Civ. 0406, 2002 WL 826810, at *4
(S.D.N.Y. Apr. 30, 2002); see also United States v. Sanders,
247 F.3d 139, 147 (4th Cir. 2001) ("Apprendi is certainly a
new rule of criminal procedure"); In Re Clemmons,
259 F.3d 489, 491 (6th Cir. 2001) (same); United States v. Moss,
252 F.3d 993, 997-98 (8th Cir. 2001) (same); United States v.
Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir. 2002) (same);
Daniels v. United States, 254 F.3d 1180, 1192 (10th Cir. 2001)
(same); McCoy v. United States, 266 F.3d 1245, 1256 (11th Cir.
Although the Supreme Court in Apprendi did not address the
question of whether its decision applies retroactively, new
rules of constitutional criminal procedure "are generally not
applied retroactively on collateral review." United States v.
Mandanic, 205 F.3d 519, 527 (2d Cir. 2000); see also Teague,
489 U.S. at 310, 109 S.Ct. 1060 ("Unless they fall within an
exception to the general rule, new constitutional rules of
criminal procedure will not be applicable to those cases which
have become final before the new rules are announced,"). Under
Teague, new rules of criminal procedure are to be applied
retroactively on collateral review only if they fall within one
of two narrow exceptions. 489 U.S. at 311-12, 109 S.Ct. 1060;
see also Saffle v. Parks, 494 U.S. 484, 486, 110 S.Ct. 1257,
108 L.Ed.2d 415 (1990). The first exception encompasses new
rules that "place an entire category of primary conduct beyond
the reach of the criminal law." Raulston, 2002 WL 826810, at
*4 (citing Sawyer v. Smith, 497 U.S. 227, 241-42, 110 S.Ct.
2822, 111 L.Ed.2d 193.,(1990)). This exception is clearly
inapplicable here because Apprendi does not decriminalize any
category of conduct. The second exception under Teague applies
to new "watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding."
O'Dell v. Netherland, 521 U.S. 151, 167, 117 S.Ct. 1969, 138
L.Ed.2d 351 (1997). Vargas asserts that his petition is not time
barred because Apprendi falls under this second exception.
Although the Second Circuit has yet to address whether
Apprendi applies retroactively on collateral review, see
Santana-Madera v. United States, 260 F.3d 133 (2d Cir. 2001),
it has noted that the Supreme Court "has measured at least
eleven new rules, or proposed new rules, of criminal procedure
against the criteria for the second [Teague] exception and,
in every case, has refused to apply the rule at issue
retroactively." Mandanici, 205 F.3d at 529; see also
Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997)
(holding that United States v. Gaudin, 515 U.S. 506, 115 S.Ct.
2310, 132 L.Ed.2d 444 (1995), which shifted the determination of
materiality in a prosecution under
18 U.S.C. § 1001 from the judge to the jury, was not a watershed
rule justifying retroactive collateral review under Teague).
Furthermore, every other circuit that has ruled on the issue
has held that Apprendi does not apply retroactively on
collateral review. See Curtis v. United States, 294 F.3d 841
(7th Cir. 2002) ("Apprendi . . . does not disturb sentences
that became final before June 26, 2000, the date of [the
decision's] release."); McCoy v. United States, 266 F.3d 1245,
1257 (11th Cir. 2001) ("Apprendi does not fall within either
exception to Teague's non-retroactivity standard. Therefore
. . . Apprendi does not apply retroactively on collateral
review."); United States v. Moss, 252 F.3d 993 (8th Cir. 2001)
("[W]e hold . . . that Apprendi is not of watershed magnitude
and that Teague bars petitioners from raising Apprendi
claims on collateral review."); Jones v. Smith, 231 F.3d 1227,
1236 (9th Cir. 2000) ("[T]he non-retroactivity principle
pronounced in Teague prevents Petitioner from benefitting from
Apprendi's new rule on collateral review."); United States v.
Sanders, 247 F.3d 139, 148 (4th Cir. 2001) ("[T]he new rule
announced Apprendi does not rise to the level of a watershed
rule of criminal procedure which `alters our understanding of
the bedrock elements essential to the fairness of a
proceeding.'") (quoting Sawyer, 497 U.S. at 242, 110 S.Ct.
2822); In re Turner, 267 F.3d 225, 231 (3d Cir. 2001) (holding
that, until the Supreme Court rules otherwise, Apprendi is not
"a new rule of constitutional law, made retroactive to cases on
collateral review . . ., that was previously unavailable"). Cf.
Ring v. Arizona, 536 U.S. ___, 122 S.Ct. 2428, 2449, ___
L.Ed.2d ___ (2002) (O'Connor, J., dissenting) (noting that the
majority's new rule of constitutional criminal procedure,
requiring a jury, and not a judge, to find aggravating
circumstances required by statute to impose the death penalty,
would not benefit the majority of prisoners already on death row
because they would be barred from raising the issue on federal
collateral review) (citing 28 U.S.C. § 2244(b)(2)(A),
2254(d)(1) and Teague, 489 U.S. 288, 109 S.Ct. 1060). But see
United States v. Clark, 260 F.3d 382, 387 (5th Cir. 2001)
(Parker, J., dissenting) (concluding that "Apprendi announces
a new substantive rule" and must therefore be applied
In addition, at least four judges in this District have
reached the same conclusion. See Raulston, 2002 WL 826810, at
*4-*5; Garcia v. United States, No. 01 Civ. 7188, 2002 WL
42888, at *1 (S.D.N.Y. Jan. 11, 2002) ("Apprendi should not be
applied retroactively on collateral review."); Saldarriaga v.
United States, No. 99 Civ. 4487, 2002 WL 449651, at *6
(S.D.N.Y. Mar. 21 2002) (same); Moore v. White, 188 F. Supp.2d 411,
416 (S.D.N.Y. 2002) (same).*fn1 But see Rosario v.
United States, No. 00 Civ. 9295, 2001 WL 1006641, at *2
(S.D.N.Y. Aug. 30, 2001) (concluding that Apprendi ...