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CRUZ v. UNITED STATES OF AMERICA

United States District Court, Southern District of New York


April 2, 2003

ANTHONY CRUZ, PETITIONER, AGAINST UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Shirley Wohl Kram, United States District Judge

OPINION AND ORDER

Pro se petitioner Anthony Cruz moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence for conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Cruz argues that the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), should be applied retroactively to his case. For the reasons set forth below, Cruz's petition is denied.

I. BACKGROUND

On June 7, 1990, a fourteen count indictment charged Cruz and his co-defendants with conspiracy to distribute heroin in Manhattan and the South Bronx.*fn1 Count One charged Cruz with violating Title 21, United States Code, Section 846 by conspiring to distribute and possess with intent to distribute a controlled substance. The object of the conspiracy was the violation of Title 21, United States Code, Section 841(b)(1)(A), through the distribution of more than one kilogram of heroin between 1987 and 1989. On November 16, 1990, a jury convicted Cruz on Count One and made a specific finding that the object of the conspiracy was to distribute one kilogram or more of heroin. Tr. at 4789.*fn2 On June 26, 1991, this Court sentenced Cruz to a term of 365 months imprisonment, five years supervised release and a mandatory special assessment. On July 30, 1992, the Second Circuit affirmed Cruz's conviction. See United States v. Rivera, 971 F.2d at 892.*fn3

Cruz later filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582 (c)(2) based upon Amendments 439 and 503 to the United States Sentencing Guidelines. On March 11, 1997, this Court denied Cruz's motion, finding that the Guidelines Amendments relied upon by Cruz were not retroactively applicable to a Section 3582(c)(2) motion. United States v. Cruz, 1997 WL 115835, at *3 Cruz filed the instant petition for relief on June 19, 2001.

II. DISCUSSION

Cruz makes the following arguments in his petition for habeas corpus review: (1) Congress did not intend for the penalties of 21 U.S.C. § 841 (b)(1)(A) to apply to persons who sold less than one kilogram of heroin in a single transaction; (2) the Court impermissibly broadened the Indictment by failing to require the jury to find that Cruz distributed, or possessed with the intent to distribute, one kilogram or more of heroin on one specific occasion; (3) the Court's determination of drug quantity during sentencing violated the rule set forth in Apprendi and (4) ineffective assistance of counsel based upon his attorney's failure to raise an Apprendi based argument at trial and on direct appeal.

A. CONGRESSIONAL INTENT BEHIND 21 U.S.C. § 841 SUPPORTS THE FINDING THAT CRUZ IS RESPONSIBLE FOR THE DISTRIBUTION OF ONE KILOGRAM OR MORE OF HEROIN OVER THE LIFE OF THE CONSPIRACY
Contrary to Cruz's argument that Congress intended only to punish those who possess or distribute more than one kilogram of heroin at one time, the Court finds that the legislative history of Section 841 and subsequent case law interpreting the statute support the practice of holding a defendant responsible for the total weight of narcotics distributed or possessed during the life of the conspiracy if that amount was reasonably foreseeable to the defendant.

"The base offense level in a drug conviction is set by determining the quantity of drugs in which a defendant trafficked, or in the case of a conspiracy, the amount in which his co-defendants trafficked if that amount was reasonably foreseeable to the defendant." United States v. Ayala, 75 F. Supp.2d 126, 129 (S.D.N.Y. 1999) (citations omitted); see also U.S.S.G. § 1B1.3 (a)(1)(B). The amount of drugs distributed over the course of the "overall scheme" should be used to establish the applicable offense level. See United States v. Hodges, 935 F.2d 766, 772 (6th Cir. 1991). "The entire quantity of [narcotics] attributable to a distribution enterprise must be used to establish the base offense level of a conspirator in the undertaking." United States v. Miller, 910 F.2d 1321, 1326-27 (6th Cir. 1990) (emphasis in original).

Pursuant to the Sentencing Guidelines and applicable case law, the Court did not err in failing to require the jury to find that Cruz distributed one kilogram or more of heroin on one specific occasion, as opposed to over the course of the conspiracy. It was sufficient for the purposes of Section 841(b)(1)(A) that the jury found Cruz guilty of conspiracy to distribute one kilogram or more of heroin over the course of the conspiracy.

B. APPRENDI DOES NOT APPLY TO CRUZ'S CLAIMS

Cruz argues for retroactive application of Apprendi and a subsequent reduction in his sentence based upon the Court's determination at sentencing that it was reasonably foreseeable to Cruz that hundreds of kilograms of cocaine would be distributed by the organization and that he should be held liable for that amount of narcotics. However, Cruz overlooks the fact that the jury specifically reached a determination that Cruz was guilty of conspiring to distribute one kilogram or more of heroin as a part of the organization, thereby authorizing a maximum statutory sentence of life imprisonment. Tr. at 4789.

Section 841(b)(1)(A) authorizes increased statutory maximum sentences based upon the quantity and type of controlled substance involved in the offense. Thus, while a violation of Section 841(b)(1)(C) carries a statutory maximum penalty of twenty years imprisonment for an indeterminate amount of narcotics, if the Government establishes at trial that the offense involved one kilogram or more of heroin, then the penalty provisions of Section 841(b)(1)(A) apply, including an increased statutory maximum penalty of life imprisonment.

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), sets forth the following new rule of criminal procedure: "[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. Apprendi merely shifts the determination of factors that enhance the maximum statutory penalty from the judge to the jury.

However, in this case the jury made a determination that Cruz conspired to distribute one kilogram or more of heroin over the course of the conspiracy. Tr. at 4789. Once the jury made that determination, the mandatory minimum and maximum penalties of 21 U.S.C. § 841 (b)(1)(A)(i) of not less than 10 years nor more than life imprisonment became applicable to Cruz's sentence. As a result of the jury's specific finding as to the amount of heroin, the 365 month sentence Cruz received was not in excess of the statutory maximum for his offense, and therefore, the rule announced in Apprendi was properly adhered to in this case.*fn4 It was also proper for the Court to take in account at sentencing the entire amount of narcotics distributed by the organization over the course of the conspiracy and reasonably foreseeable to Cruz, so long as the sentence Cruz received was below the statutory maximum sentence. See United States v. Ayala, 75 F. Supp.2d at 129.

C. CRUZ'S PETITION IS UNTIMELY

Cruz argues that his Sixth Amendment right to effective counsel was violated by his counsel's failure to raise an Apprendi argument at trial and on appeal. As a threshold matter, Cruz's petition must be denied on this basis since it was not filed within the one year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") for Section 2255 petitions filed after April 24, 1996. See 28 U.S.C. § 2244. The one-year limitation period begins to run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have discovered through the exercise of due diligence.
28 U.S.C. § 2244 (d)(1).

On June 19, 2001, over eight years after his conviction became final, Cruz filed this petition and supporting memorandum. Under the provisions of the AEDPA, Cruz was permitted a one-year grace period after the effective date of the statute in which to file his petition alleging ineffective assistance of counsel. See Ross v. Ortiz, 150 F.3d 97 (2d Cir. 1998); Mickens v. United States, 148 F.3d 145 (2d Cir. 1998). Cruz has provided no legitimate basis for tolling the limitations period, and his ineffective assistance of counsel claim is therefore dismissed as untimely. See Acevedo v. United States, No. 00 Civ. 9696, 2002 WL 1453828, *4 (S.D.N.Y. July 3, 2002) (claims of ineffective assistance of counsel not considered by the court when petition for relief filed after the one year limitations period of the AEDPA); Feliz v. United States, No. 00 Civ. 7491, 2001 WL 930840, *1 (S.D.N.Y. Aug. 15, 2001) (same); Goldwire v. United States, No. 98 Civ. 7153, 1998 WL 1062797, *1 (E.D.N.Y. Apr. 13, 1998) (dismissing as untimely petitioner's Section 2255 claim of ineffective assistance of counsel)

Even were the Court to consider Cruz's claim of ineffective assistance of counsel, it would fail on the merits. To prevail on an ineffective assistance of counsel claim, a petitioner must first show that his counsel's representation fell below an "objective standard of reasonableness" under "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 688 (1984). Then, a petitioner must affirmatively prove prejudice by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The petitioner has the burden of demonstrating that his counsel failed to raise "significant and obvious issues" which if raised, would likely have been successful, Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994), therefore rebutting the "strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). Cruz's petition fails to meet this burden.

As discussed above, as a result of the specific jury finding that the object of the conspiracy was the distribution of one kilogram or more of heroin, Cruz was subject to the penalties for that offense outlined in 21 U.S.C. § 841 (b)(1)(A). Cruz's sentence of 365 months imprisonment fell well below the maximum allowable sentence of life imprisonment for this offense. Therefore, Cruz cannot show that he was prejudiced by counsel's failure to make an Apprendi argument at the time of trial or on direct appeal. The Court's determination of the amount of heroin attributable to Cruz affected only his guidelines range, and did not affect the applicable statutory minimum or maximum for the offense. See United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001) (drug quantities that affect only the guidelines range, as opposed to affecting the statutory maximum sentence or establishing a mandatory minimum sentence, may properly be found by a preponderance of the evidence by the sentencing court). Had Cruz's counsel raised an Apprendi argument before this Court or on appeal, such a claim would have been denied as it was the jury, and not the Court, that made a specific finding as to drug quantity in this case.

III. CONCLUSION

Therefore, for the reasons set forth above, Cruz is not entitled to relief under Apprendi v. New Jersey, and his motion to vacate his sentence is denied.

Cruz may not appeal this order to the Court of Appeals unless H a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253 (c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court finds that the petitioner will not be able to sustain his burden. Thus, the Court declines to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. See Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Should the petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

SO ORDERED.


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