The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On June 10, 2008, Petitioner Jawad Amir Musa (a/k/a Leroy Moses), moved for a Writ of Audita Querela, pursuant to the All Writs Act, 28 U.S.C. § 1651, to vacate his sentence on the grounds that it is constitutionally infirm. In the alternative, Petitioner moves to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, Petitioner's motion is denied.
In November of 1990, a confidential informant ("CI") working for the Drug Enforcement Administration offered to sell one kilogram of heroin to David Wray. See Moses v. United States, 1993 U.S. Dist. LEXIS 4962, at *2 (S.D.N.Y. 1993). Wray agreed to pay the CI $20,000 as a down payment for the heroin, but Wray did not have this money; Wray contacted Petitioner, who agreed to provide the $20,000 down payment. Id. To complete the transaction, Petitioner and other individuals involved in the heroin purchase drove up from Baltimore and met with the CI in Manhattan on November 27, 1990. After the exchange of the money, but not the heroin, the DEA moved in to arrest the conspirators; Petitioner and a few others escaped but were later captured and arrested in Baltimore. Id. at *4. By Indictment 90 Cr. 863, Petitioner was charged with one count of conspiring to possess with the intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846.
On July 18, 1991, after a jury trial, Petitioner was convicted of the narcotics conspiracy charged in the indictment. Pursuant to then-governing law, the jury did not make any findings with respect to the quantity of heroin involved in the conspiracy. See Moses v. United States, 2005 U.S. Dist. LEXIS 1743, at *2 (S.D.N.Y. 2005). On December 11, 1992, this Court held a sentencing hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), for the purpose of determining the quantity of heroin for which Petitioner was liable. On April 16, 1993, the Court found "by a preponderance of the evidence that [Petitioner] knew that he was engaging in a conspiracy to possess, with intent to distribute, a kilogram of heroin." Moses, 1993 U.S. Dist. LEXIS 4962, at *7-8. Due to his two prior felony narcotics convictions, the Court sentenced him to a mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A). Moses, 2005 U.S. Dist. LEXIS 1743, at 3. The Second Circuit affirmed Petitioner's conviction and sentence. See United States v. Moses, 23 F.3d 396 (2d Cir. 1994). On October 3, 1994, the United States Supreme Court denied certiorari. Moses v. United States, 513 U.S. 886 (1994).
On April 10, 1997, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the "First Habeas"), alleging that 1) certain amendments to the Federal Sentencing Guidelines required or permitted a reduction in his sentence; 2) both his trial and appellate counsel rendered ineffective assistance; and 3) that the Government improperly withheld impeachment evidence relevant to his defense.
See United States v. Moses, 1998 U.S. Dist. LEXIS 7343 (S.D.N.Y. 1998). On May 19, 1998, this Court denied Petitioner's First Habeas Motion and declined to issue a Certificate of Appealability ("COA"). Petitioner sought a COA from the Second Circuit Court of Appeals, which too denied Petitioner's request.*fn1
On July 17, 2000, Petitioner filed an application with the Second Circuit for leave to file a second habeas motion to challenge his sentence on the ground that it was rendered unconstitutional by the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) (the "Second Habeas Motion"). On March 7, 2002, the Second Circuit denied this request because the United States Supreme had not held that Apprendi established a "new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court." See Order of Second Circuit Court of Appeals, dated March 7, 2002.
On September 22, 2003, Petitioner filed another motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (the "Third Habeas Motion"), which was initially assigned to then-Chief Judge Michael Mukasey, but then re-assigned to this Court, which denied the motion on December 31, 2003. Petitioner sought reconsideration of the original transfer order from Chief Judge Mukasey, which was denied. Petitioner then moved for a COA from the Second Circuit, which denied Petitioner's motion on November 24, 2004.
On April 10, 2006, Petitioner filed an application with the Second Circuit for leave to file yet another habeas petition to challenge his sentence on the ground that it was rendered unconstitutional by Apprendi, supra, and the Second Circuit's decision in United States v. Gonzalez, 420 F.3d 111 (2d Cir. 2005) (the "Fourth Habeas Motion"). On June 30, 2006, the Second Circuit denied Petitioner's motion, ruling that neither Apprendi, supra, nor Gonzalez, supra, "constitute[d] new rules of constitutional law that have been made retroactive to cases on collateral review by the Supreme Court." See Order of the Second Circuit Court of Appeals, dated June 30, 2006.
A writ of audita querela lies where the "absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues." United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007). Petitioner now moves for such a writ based on two claims arising from the Second Circuit's decision in United States v. Gonzalez, 420 F.3d 111 (2d Cir. 2005). Petitioner argues that Gonzalez, supra, should be applied retroactively to vacate his sentence because: 1) the jury failed to find that any amount of heroin was involved in the charged conspiracy; and 2) the Court constructively amended the indictment by instructing the jury that it need not find that the Government proved the exact amount of heroin that Petitioner conspired to distribute in order to find him guilty of conspiracy to distribute heroin. In the alternative, Petitioner seeks a reduction of his sentence under 18 U.S.C. § 3582(c)(2).
A. Petitioner Is Not Entitled to Retroactive Relief Under Apprendi and its Progeny
Initially, Petitioner's argument derived from Gonzalez, 420 F.3d at 111, that his sentence should be vacated because the jury failed to find the specific amount of heroin that was involved in the charged conspiracy, can be swiftly rejected. In Gonzalez, supra, the Second Circuit, relying on Apprendi, supra, determined that the quantity of drugs is an element of certain crimes, and therefore must either be found by a jury or allocuted to by a defendant during the plea proceedings. However, and fatal to Petitioner's claim, the Second Circuit has squarely held that Apprendi and its progeny do not apply retroactively to cases on collateral review. See, e.g., Guzman v. United States, 404 F.3d 139, 141 (2d Cir. 2005); Carmona v. United States, 390 F.3d 200, 202-03 (2d Cir. 2004). Here, Petitioner's conviction became final on October 4, 1994 when his petition for certiorari was denied by the United States Supreme Court. Apprendi, supra, was not decided until June 26, 2000, nearly six ...