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GARCIA v. U.S.

August 4, 2004.

DARBERTO GARCIA, Petitioner,
v.
U.S., Respondent.



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

MEMORANDUM — DECISION and ORDER

I. INTRODUCTION

  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).

  II. BACKGROUND

  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 DENIED.

  III. DISCUSSION

  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 ...


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