United States District Court, N.D. New York
August 4, 2004.
DARBERTO GARCIA, Petitioner,
The opinion of the court was delivered by: THOMAS McAVOY, District Judge
MEMORANDUM DECISION and ORDER
Petitioner Darberto Garcia pled guilty to a superseding
indictment charging him, and others, with a conspiracy to
distribute and the distribution of crack cocaine. Petitioner now
moves pursuant to 28 U.S.C. § 2255 to vacate his conviction on
the grounds that: (1) he was denied the effective assistance of
counsel; and (2) he was deprived of his Sixth Amendment rights as
interpreted in Crawford v. Washington, ___ U.S. ___,
124 S.Ct. 1354 (2004). In his reply papers, Petitioner also argues that his sentence is in violates
the Sixth Amendment, as interpreted in Blakely v. Washington,
124 S.Ct. 2531 (2004).
Much of the background for this case is set forth in the Second
Circuit's Summary Order affirming the Judgment of Conviction in
this matter. See United States v. Garcia, 57 Fed. Appx. 486,
2003 WL 201319 (2d Cir. Jan. 30, 2003) (table). Familiarity with
this Summary Order and the prior decisions of this Court in case
number 00-CR-185 is presumed.
Briefly stated, Petitioner, and others, were indicted for
conspiring to distribute and the distribution of crack cocaine.
All of the co-conspirators, except for Petitioner and Diogenes
Rosario, pleaded guilty. The co-conspirators were going to
testify at trial against Petitioner and Rosario. Shortly before
the commencement of the trial, Petitioner's counsel contacted the
government seeking to enter into a plea agreement. The government
refused and indicated its intention to proceed to trial. The
government informed Petitioner's counsel that Petitioner would
have to plead guilty to all counts in the superseding indictment
or proceed to trial. Petitioner decided to plead guilty.
A plea proceeding was scheduled for January 11, 2001, five days
before the scheduled trial date. During the plea proceeding,
Petitioner pleaded guilty to all counts in the superseding
indictment. Based on Petitioner's demeanor and responses to the
Court's questions at the plea proceeding, this Court was, and
remains, satisfied that Petitioner pleaded guilty freely,
knowingly and voluntarily.
In August 2001, with the benefit of new counsel, Petitioner
moved to withdraw his guilty plea, raising the same
ineffective-assistance arguments that he raises in support of the
instant § 2255 motion. By Decision and Order dated October 24, 2001, this
Court denied Petitioner's motion. By Decision and Order dated
December 27, 2001, this Court denied Petitioner's motion for
reconsideration. On December 27, 2001, Petitioner was sentenced
to a term of imprisonment of 360 months.
Petitioner appealed to the Second Circuit, raising many of the
same issues that he presents in support of the current motion,
including the ineffective-assistance claims. By Order dated
January 30, 2003, the Second Circuit Court of Appeals rejected
each and every one of Petitioner's arguments. The Second Circuit
affirmed this Court's decisions concerning Petitioner's
ineffective assistance of counsel claim and the request to
withdraw the guilty plea.
Petitioner now moves pursuant to 28 U.S.C. § 2255 seeking to
vacate his conviction. For the following reasons, the motion is
a. Crawford v. Washington
Petitioner claims that he was denied the right to confront
persons giving testimonial statements against him during
sentencing in violation of the Sixth Amendment rule recently
pronounced by the Supreme Court in Crawford. This Court finds
that Crawford does not apply retroactively to cases on
collateral review. See Evans v. Luebbers, 371 F.3d 438, 444
(8th Cir. 2004) ("[T]he Crawford Court did not suggest that
this doctrine would apply retroactively and the doctrine itself
does not appear to fall within either of the two narrow
exceptions to Teague v. Lane's, [489 U.S. 288 (1989)]
non-retroactivity doctrine."); Wheeler v. Dretke, 2004 WL
1532178, at *1 n. 1 (N.D. Tex. July 6, 2004) (same). The rule in Crawford did not "change the definition of what
constitutes a `crime'", but, rather, "recognize[d] a
constitutional right that typically applies to all crimes
irrespective of the underlying conduct, and to all defendants
irrespective of their innocence of guilt." Coleman v. United
States, 329 F.3d 77, 84 (2d Cir. 2003). As the Supreme Court
itself posed the issue before it, "[t]he question presented is
whether [the] . . . procedure [used by the State of Washington]
complied with the Sixth Amendment's guarantee that, `[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.'" Crawford, 124
S.Ct. at 1357 (emphasis added); see Crawford, 124 S.Ct. at
1359 (describing the Sixth Amendment confrontation clause as a
"bedrock procedural guarantee."); Crawford, 124 S.Ct. at 1370
("To be sure, the Clause's ultimate goal is to ensure reliability
of evidence, but it is a procedural rather than a substantive
guarantee."). A review of the decision in Crawford confirms
that that case is entirely about procedure whether testimonial
statements of a witness who does not appear at trial are
admissible. Id.; see Coleman, 329 F.3d at 84. Because
Crawford announced a procedural, rather than substantive, rule,
it does not apply retroactively on habeas review unless it fits
within one of the two narrow exceptions identified in Teague.
Coleman, 329 F.3d at 84.
The two Teague exceptions are: (1) new rules that place an
entire category of primary conduct beyond the reach of the
criminal law or new rules that prohibit imposition of a certain
type of punishment for a class of defendants because of their
status or offense; and (2) new watershed rules of criminal
procedure that are necessary to the fundamental fairness of the
criminal proceeding. Coleman, 329 F.3d at 88. It is evident
that Crawford does not implicate the first of the two Teague exceptions. That leaves the issue
of whether it is a new watershed rule of criminal procedure.
As the Second Circuit has stated:
In order to be "watershed" under Teague's second
exception, a rule must not only improve the accuracy
of criminal proceedings, but also alter our
understanding of the bedrock procedural elements
essential to the fairness of those proceedings. In
short, it must be a groundbreaking occurrence.
The Supreme Court has emphasized, through words and
examples, that the exception is exceedingly narrow,
applying only to a small core of rules requiring the
observance of those procedures that are implicit in
the concept of ordered liberty. To underscore the
rarity of "watershed" rules, the Supreme Court has
repeatedly invoked the sweeping rule of Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792,
9 L.Ed.2d 799 (1963) (holding that indigent defendants have the
right to court-appointed counsel in all criminal
prosecutions), as a quintessential watershed rule,
and has repeatedly remarked that it seems unlikely
that many such components of basic due process have
yet to emerge. Indeed, since 1989, beginning with the
rule at issue in Teague, the Court has measured at
least eleven new rules, or proposed new rules, of
criminal procedure against the criteria for the
second exception and, in every case, has refused to
apply the rule at issue retroactively on habeas
Coleman, 329 F.3d at 88 (internal quotations, citations and
alterations omitted). Without question, the rule announced in
Crawford is significant. Crawford does not, however, "alter
our understanding of the bedrock procedural elements essential to
the fairness" of criminal proceedings. Sawyer v. Smith,
497 U.S. 227
, 241 (1990). Rather, "it merely `clarified and extended'
the scope of [a] well-settled principle of criminal procedure:"
the right of the accused to be confronted with the witnesses
against him. Coleman, 329 F.3d at 89.
Crawford itself recognized the well-established "bedrock
procedural guarantee [of the Sixth Amendment's confrontation
clause]" that applies to federal and state criminal proceedings.
Crawford, 124 S.Ct. at 1359. Significantly, Crawford did not
announce a fundamental rule concerning the right of confrontation. As the Crawford Court
stated, "[o]ur cases have . . . remained faithful to the Framers'
understanding: Testimonial statements of witnesses absent from
trial have been admitted only where the declarant is unavailable,
and only where the defendant has had a prior opportunity to
cross-examine." Crawford, 124 S.Ct. at 1369. The Crawford
Court continued to state:
To be sure, the Clause's ultimate goal is to ensure
reliability of evidence, but it is a procedural
rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the
crucible of cross-examination. The Clause thus
reflects a judgment, not only about the desirability
of reliable evidence (a point on which there could be
little dissent), but about how reliability can best
Id. at 1370. It is, thus, clear that Crawford did not alter
our understanding of the bedrock procedural elements essential to
the fairness of criminal proceedings, but, rather, clarified the
mechanism by which the reliability of testimonial statements is
determined by requiring an opportunity for cross-examination
before it can be admitted into evidence, regardless of any other
indicia of reliability surrounding the statements. Id. at 1370.
Moreover, a Crawford violation is not such an affront to the
concept of ordered liberty (i.e., a "structural" error) that it
would require automatic reversal in most situations, see
Delaware v. Van Arsdall, 475 U.S. 673
, 684 (1986); Cotto v.
Herbert, 331 F.3d 217
(2d Cir. 2003) ("A violation of a
defendant's confrontation rights does not, standing alone,
require reversal of a judgment of conviction. Rather, violations
of the Confrontation Clause are subject to harmless error
analysis."), and, thus, Crawford cannot be said to establishing
a watershed rule of criminal procedure. See Coleman, 329 F.3d
at 89-90. Accordingly, Crawford does not apply retroactively on
collateral review and Petitioner may not invoke Crawford as a
basis for challenging his sentence. b. Ineffective Assistance of Counsel
Relying on Massaro v. United States, ___ U.S. ___,
123 S.Ct. 1690 (2003), Petitioner next claims that even though he raised
his ineffective assistance of counsel claims before this Court
and the Second Circuit on appeal, he is not barred from raising
them again in a motion under 28 U.S.C. § 2255. This Court
The precise question before the Supreme Court in Massaro was
whether the failure to raise an ineffective assistance of counsel
claim on direct appeal, even when there is new appellant counsel,
bars the claim from being brought in a later proceeding under §
2255. The Supreme Court held that it does not. That issue is not
presented here because Petitioner did raise ineffective
assistance claims on direct appeal.
Although the Supreme Court stated that "in most cases a motion
brought under § 2255 is preferable to direct appeal for deciding
claims of ineffective-assistance," Massaro, 123 S.Ct. at 1694,
it explicitly stated that
We do not hold that ineffective-assistance claims
must be reserved for collateral review. There may be
cases in which trial counsel's ineffectiveness is so
apparent from the record that appellate counsel will
consider it advisable to raise the issue on direct
appeal. . . . In those cases, certain questions may
arise in subsequent proceedings under § 2255
concerning the conclusiveness of the determinations
made on the ineffective-assistance claims raised on
123 S.Ct. at 1696.
Moreover, it should be noted that one of the Supreme Court's
preferences for permitting ineffective-assistance claims to be
brought under § 2255 in the first instance is that the district court is "the forum best suited to developing the facts necessary
to determining the adequacy of representation. . . . The judge,
having observed the earlier [proceedings], should have an
advantageous perspective for determining the effectiveness of
counsel's conduct and whether any deficiencies were prejudicial."
Massaro, 123 S.Ct. at 1694.
In the instant matter, this Court appointed new counsel for
Petitioner upon his request. This was done after Petitioner
pleaded guilty, but prior to sentencing. In August 2001 (prior to
sentencing), Petitioner's new counsel moved to vacate the guilty
plea. In support of the motion, Petitioner raised the very same
claims of ineffective assistance of counsel concerning
Petitioner's prior counsel that he now raises in the instant §
2255 motion. Thus, this Court previously ruled on the very same
issues raised herein. Petitioner appealed this Court's
determination and explicitly raised the ineffective-assistance
claim before the Second Circuit. The Second Circuit affirmed this
Without doubt, this Court's prior rulings and the ruling of the
Second Circuit conclusively determined Petitioner's ineffective
assistance claim. Petitioner has presented nothing that would
alter this Court's prior ruling as affirmed by the Second
Circuit. A § 2255 petition cannot be used to "relitigate
questions which were raised and considered on direct appeal."
United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quoting
Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992));
see Finley v. United State, 2003 WL 22384791, at *4 (W.D.N.Y.
Sept. 22, 2003) (same). Because Plaintiff does not present any
new grounds for an ineffective assistance claim, he may not relitigate issues that
were squarely presented before this Court and the Second Circuit
and decided against him.*fn1
c. Blakely v. Washington
In his reply papers, Petitioner claims that he is entitled to
relief in light of the Supreme Court's recent decision in
Blakely v. Washington, 124 S.Ct. 2531 (2004). It is the
conclusion of this Court that Blakely does not apply
retroactively to § 2255 motions.
In Blakely, the Supreme Court held that "the `statutory
maximum' for [Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)]
purposes is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted
by the defendant." Blakely, 124 S.Ct. at 2537 (emphasis
supplied). Blakely did not announce a new rule of law, but
extended the rule in Apprendi. See In re Dean, No.
04-13244, 2004 WL 1534788, at *3 (11th Cir. July 9, 2004)
("Blakely . . . is based on an extension of Apprendi);
Patterson v. United States, No. 03-CV-74948-DT, 2004 WL
1615058, at *4 n. 3 (E.D. Mich. July 2, 2004) ("Blakely is in
fact an extension of the rule announced in Apprendi v. New
Jersey"); United States v. Stoltz, No. CIV. 03-5580, 2004 WL
1619131, at *2 (D. Minn. July 19, 2004) ("In Blakely, the Court
extended its holding in Apprendi v. New Jersey."). Because
Apprendi does not apply retroactively to collateral attacks and
Blakely is an extension of Apprendi, Blakely is similarly
limited to prospective application. In re Dean, 2004 WL
1534788, at *3; Patterson, 2004 WL 1615058, at *4 n. 3. Using similar reasoning, the Supreme Court
concluded on the same day that it decided Blakely that Ring v.
Arizona, 536 U.S. 584 (2002), which also extended the Apprendi
rule (to facts increasing a defendant's sentence from life
imprisonment to death), is not retroactive to cases on collateral
review. Schriro v. Summerlin, 124 S.Ct. 2519, 2526 (2004).
As with Crawford (see discussion supra), Blakely
implicates a procedural rule of law. Indeed, the Supreme Court
held in Blakely that "the State [of Washington]'s sentencing
procedure did not comply with the Sixth Amendment" and required
a different procedure under which "the prosecutor [must] prove to
a jury all facts legally essential to the punishment." Blakely,
124 S.Ct. at 2538, 2543 (emphasis added). In addition, the
Blakely rule cannot be regarded as a substantive rule because
it neither "narrow[s] the scope of a criminal statute by
interpreting its terms" nor is a "constitutional determination
that place[s] particular conduct or persons covered by the
statute beyond the State's power to punish." Shriro, 124 S.Ct.
at 2522. It does, however, "raise the possibility that someone
convicted with use of the invalidated procedure might have been
acquitted otherwise," and is thus more properly categorized as a
procedural rule. Id. at 2523.
As previously discussed, a procedural rule does not apply
retroactively on habeas review unless it fits within one of the
two narrow Teague exceptions. Coleman, 329 F.3d at 84.
Clearly, the Blakely rule does not fall within the first
exception because it neither "place[s] an entire category of
primary conduct beyond the reach of the criminal law" nor
"prohibit[s] imposition of a certain type of punishment for a
class of defendants because of their status or offense." Id. at
88. Thus, it must be determined whether it is a new watershed
rule of criminal procedure. In Shriro v. Summerlin, the Supreme Court held that Ring v.
Arizona did not announce a watershed rule because it is not
clear that judicial fact finding "so seriously diminishe[s]
accuracy as to produce an impermissibly large risk of injustice."
Shriro, 124 S.Ct. at 2535. Because Ring did not announce a
watershed rule and is an extension of Apprendi, Apprendi
similarly did not announce a watershed rule. Stoltz, 2004 WL
1619131, at *3; see also Coleman, 329 F.3d at 89
("Apprendi did not announce a watershed rule."). It follows,
then, that Blakely, another extension of Apprendi, is not a
watershed rule. Id.
Blakely also does not "alter our understanding of the bedrock
procedural elements essential to the fairness" of criminal
proceedings. Sawyer, 497 U.S. at 241. Rather, it merely
"clarified and extended" the Sixth Amendment right to trial by
jury. Coleman, 329 F.3d at 89. Indeed, the Blakely Court
stated that "[o]ur commitment to Apprendi in this context
reflects not just respect for longstanding precedent, but the
need to give intelligible content to the right of jury trial."
Blakely, 124 S.Ct. at 2538. Blakely extended the accused's
right to a jury trial by requiring that a jury determine all
facts upon which the sentence is predicated. Moreover, a
Blakely violation does not offend the concept of ordered
liberty such that it would require automatic reversal in most
situations. The Supreme Court has stated that "[t]he values
implemented by the right to jury trial would not measurably be
served by requiring retrial of all persons convicted in the past
by procedures not consistent with the Sixth Amendment right to
jury trial." Shriro, 124 S.Ct. 2525-26 (quoting DeStefano v.
Woods, 392 U.S. 631, 634 (1968)). Thus, Blakely cannot be said
to establish a watershed rule of criminal procedure and it does
not apply retroactively to cases on collateral review.
IV. CONCLUSION For the foregoing reasons, Petitioner's motion under
28 U.S.C. § 2255 is DENIED IN ITS ENTIRETY. The Clerk of the Court shall
close the file in this matter.
IT IS SO ORDERED.