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November 21, 2005.

JOSE MULERO, Petitioner,

The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge


Preliminary Statement

Before this Court are pro se motions of Petitioner Jose Mulero ("Mulero" or "Petitioner") to vacate, set aside, or correct his sentence pursuant to 18 U.S.C. § 2255 ("§ 2255"), and for leave to amend his petition. For the reasons discussed below, both motions are denied.


  On April 3, 2000, through his attorney, John Jacobs*fn1 ("Jacobs"), Mulero pled guilty, without a plea agreement, to Count One of Indictment No. 99 Cr. 1111 (JFK), which charged Mulero with being a felon in possession of a firearm that had previously been shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922 (g) (1). On July 30, 2001, following extensive argument from both parties and review of the Probation Department's revised Pre-Sentence Investigation Report dated July 21, 2000 ("PSR"), the Court sentenced Mulero at the bottom of the Sentencing Guidelines range, to ninety-two months of imprisonment, to be followed by three years of supervised release.

  The Court determined that Mulero's base offense level was twenty-four. The Court added two points to Mulero's sentence because the firearm that Mulero possessed had a defaced serial number pursuant to U.S.S.G. 2K2.1 (b) (4). (Sent. Tr. 3, 21.) The Court declined to enhance Mulero's sentence for obstruction of justice. In fact, the Court awarded Mulero two points for accepting responsibility through a guilty plea, on the eve of his scheduled trial. (Sent. Tr. 21.) The Court applied the "rule of `lenity'" to subtract three criminal history points from the PSR's calculation because it was unclear whether Mulero had been treated as a youthful offender in connection with his 1984 attempted robbery conviction. Consequently, the Court concluded that Mulero fell into Criminal History Category V and not Category VI, as determined in the PSR. (Sent. Tr. 11-12, 21.) The Court noted that its decision to subtract points was due, in part, to Jacobs' lawyering:
THE COURT: You won the point, Mr. Jacobs. You've got a very good lawyer there, Mr. Mulero, because . . . I had a lot written down here which is being changed as we're going along. . . . You're doing a lot better than you were when I took the bench.
(Sent. Tr. 12.)

  On August 26, 2002, Mulero filed the instant petition pursuant to 28 U.S.C. § 2255, challenging his sentence based on claims of ineffective assistance of counsel. On February 5, 2003, Mulero filed a Motion to Amend his § 2255 motion, claiming the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002) created a newly recognized right that should be considered in Mulero's Petition.

  Mulero has also filed a notice of appeal to the Second Circuit, which has been held in abeyance pending this Court's resolution of his § 2255 petition.


  I. Motion to Amend Habeas Petition Denied

  Petitioner seeks to amend his § 2255 motion to allege that his constitutional rights were violated based on the Supreme Court's decision in Ring, 536 U.S. 584. According to Mulero, Ring recognized a new "statutory right" under which he is entitled relief. Mulero alleges that both Ring and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), indicate that his two-level sentencing enhancement for the altered and obliterated firearm serial number should have been presented and decided by a jury and not the Court. (Motion to Amend at 2.) This claim is without merit however, as it misapplies the holdings and applicability of both Ring and Apprendi.

  The Supreme Court in Ring extended the Apprendi rule to apply to death penalty cases for facts that serve as aggravating factors used to enhance a sentence from life imprisonment to death. Mulero was not charged with a death eligible offense. Thus, Ring is inapplicable in this case. In Apprendi, 530 U.S. at 490, the Supreme Court held 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." According to the Second Circuit, Apprendi is inapplicable to Guidelines calculations that are lower than the applicable statutory maximum. United States v. Norris, 281 F.3d 357, 359 (2d Cir. 2002); United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001; United States v. White, 240 F.3d 127, 136 (2d Cir. 2001). Mulero's sentence of ninety-two months fell well below the ten year statutory maximum authorized by 18 U.S.C. 924 (a) (2). Apprendi, therefore, does not apply to Mulero's case.

  Even if Mulero's Apprendi claim were to prevail on the statutory requirements, it fails nonetheless because "Apprendi is a new rule that does not apply retroactively to initial section 2255 motions for habeas relief." Coleman v. United States, 329 F.3d 77, 82, 90 (2d cir. 2003).

  The Court denies Mulero's motion to amend his habeas petition to include Ring and Apprendi claims because such claims are meritless. ...

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