UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
May 13, 2009
TED M. MARZOUCA, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
On October 12, 1988, petitioner Ted Marzouca ("Marzouca") was convicted of (1) conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C); and (2) possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Marzouca was sentenced to concurrent terms of 292 months imprisonment on both counts, but was subsequently resentenced to 240 months imprisonment on the conspiracy count based on this Court's finding that the 292-month conspiracy sentence previously imposed exceeded the statutory maximum.*fn1 See Marzouca v. United States, CV 93-4813 (CPS)(E.D.N.Y. September 18, 1995). Presently before this Court is Marzouca's Habeas Corpus Petition for relief, pursuant to 28 U.S.C. § 2255, to Vacate, Set Aside or Correct the amended sentence entered on September 18, 1995.*fn2 For the reasons set forth below, the petition is transferred to the Court of Appeals for the Second Circuit to be considered for certification pursuant to 28 U.S.C. § 2244(b)(3)(A).*fn3
On October 12, 1988, Marzouca was convicted of (1) conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C); and (2) possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Marzouca appealed his conviction and all of his arguments were subsequently rejected by the Court of Appeals in an unpublished opinion. United States v. Reymond, Nos. 89-1017, 1018, 1019, 1035, 1017, 1111 (2d Cir. Mar. 7, 1991).
In 1994, Marzouca filed a habeas petition pursuant to 28 U.S.C. § 2255,*fn4 raising a variety of arguments.*fn5 By order dated September 27, 1994, this Court rejected all of Marzouca's claims except that petitioner's sentence on the conspiracy count was greater than the statutory maximum. Marzouca v. United States, CV-93-4813 (E.D.N.Y. Sept. 27, 1994). This Court subsequently resentenced Marzouca to 240 months on that count in an order dated September 26, 1995. Marzouca v. United States, 93-CV-4813 (E.D.N.Y. Sept. 26, 1995). However, Marzouca's overall term of incarceration was unaffected since he was sentenced to a concurrent term of 292 months on the possession count within the statutory maximum for that count.
On August 2, 2004, petitioner filed an "Application of Actual Innocense as a Matter of Law due to Fundamental Miscarriage of Justice, coupled with a Habeas Corpus Violation."*fn6 This Court denied the application without prejudice to its renewal in an order dated July 25, 2005*fn7 and instructed the petitioner to notify the Court in writing of the specific rule or statute pursuant to which each of the applications were made, and to make any additional changes or amendments if he wanted the Court to consider the substance of his applications. Marzouca was cautioned that, unless certain narrow exceptions apply, a prisoner serving a federal sentence may bring only one petition pursuant to 28 U.S.C. § 2255 ("2255 petition"). Petitioner then filed the present petition on July 30, 2007.
"[W]henever a first 2255 petition succeeds in having a sentence amended, a subsequent 2255 petition will be regarded as a 'first' petition only to the extent that it seeks to vacate the new, amended component of the sentence, and will be regarded as a [ ] [successive] petition to the extent that it challenges the underlying conviction or seeks to vacate any component of the original sentence that was not amended." Galtieri v. United States, 128 F.3d 33, 37-38 (2d Cir. 1997). In order to file a successive petition, a petitioner must seek permission from the appropriate Court of Appeals before he can have the merits of his claim heard by a district court. 28 U.S.C. § 2244(b)(3)(A). Thus, when presented with a successive petition for which the petitioner has not received certification, the district court is required to transfer the petition to the appropriate Court of Appeals pursuant to 28 U.S.C. § 1631.*fn8 A district court may not address the merits of a successive petition unless the petition has been certified. Corrao v. United States, 152 F.3d 188, 191 (2d Cir.1998) (reversing district court's dismissal of time-barred, successive petition that had not been certified by Court of Appeals).
Here, the government correctly asserts that Marzouca's claims do not address the amended portions of his sentence and are thus successive. Marzouca's first claim addresses the quality of his representation on appeal insofar as his attorney allegedly failed to raise the issue that his 292-month sentence for the conspiracy count exceeded the statutory maximum of 240 months. However, this Court has already accepted Marzouca's claim that his sentence on the conspiracy count exceeded the statutory maximum and resentenced him to 240 months on September 26, 1995. Marzouca has thus challenged an original sentence that has long been reduced and has in no way sought to "vacate the new, amended component of [his] sentence." Galtieri, 128 F.3d at 37-38.
Marzouca's second claim addressing the alleged impropriety of separate sentences for the conspiracy and substantive counts is also successive. Marzouca was originally sentenced to two concurrent 292-month terms for the conspiracy and substantive counts. While the September 26, 1995 Order reduced the sentence on the conspiracy count to 240 months, the two concurrent sentences remained unchanged. Marzouca's second claim simply acknowledges the 240-month conspiracy sentence as one of the two existing separate sentences. Because he is challenging the existence of separate sentences and not the amended sentence itself, Marzouca is "seek[ing] to vacate [a] component of the original sentence that was not amended" and is not attempting to "vacate his new sentence on grounds opened by the resentencing." Id.; Esposito v. U.S., 135 F.3d 111 (2d Cir. 1997). In short, this claim was readily available to Marzouca immediately following his original sentencing and has no relation to Marzouca's amended sentence.
Marzouca asserts that the facts here parallel those in Esposito. 135 F.3d 111. This assertion must be rejected. In Esposito, petitioner ("Esposito") was sentenced to 250 months in prison after pleading guilty to various methamphetamine charges.*fn9
Id. at 112. Esposito's direct appeal was dismissed as untimely, but his first § 2255 petition challenging his sentence was granted "on the grounds that he was not advised of his right to appeal at the original sentencing." Id. Esposito was subsequently resentenced to 220 months. Id. at 112.
Esposito then filed another § 2255 petition arguing that his new sentence violated his rights to due process and effective assistance of counsel. Id. Specifically, Esposito asserted that the resentencing court's "fail[ure] to distinguish between pure 'd-methamphetamine' and non-pure 'l-methamphetamine' when it sentenced him on the narcotics charge" caused it to incorrectly impose a base offense level of 34 (d-methamphetamine) instead of a level of 28 (l-methamphetamine), and that "his counsel was ineffective for failing to raise this issue at sentencing." Id. In finding the petition not successive, the Second Circuit emphasized that Esposito's petition sought "to vacate his new sentence on grounds opened by the resentencing." Id. at 113-114 (emphasis added). Because Esposito's petition directly challenged the court's new 220-month sentence, the petition was not successive.
Esposito in inapposite. Arguments about the quality of Marzouca's representation on direct appeal and the existence of separate sentences do not challenge the amended portion of his sentence. Rather, they challenge the components of the sentence that were not amended.
Marzouca claims that he is actually innocent of the underlying offense. "To establish actual innocence, [ ][Marzouca] must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. U.S., 523 U.S. 614, 623 (1998)(internal quotations omitted). Further, Marzouca's allegations must be supported with "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995).
Marzouca's actual innocence claim is without merit. He has not supported his allegation with any new evidence whatsoever, let alone exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence. Rather, Marzouca has raised his actual innocence claim within the context of his successive habeas petition, the merits of which this Court does not reach.
For the foregoing reasons, the Clerk is directed to transfer the petition to the Court of Appeals pursuant to 28 U.S.C. § 1631 and to furnish a filed copy of the within to all parties.
Charles P. Sifton United States District Judge