Mejia v . USA CV-01-104-M 04/30/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Alfredo Luis Mejia, Petitioner

v. Civil N o . 01-104-M Opinion N o .

United States of America, Respondent

O R D E R

Petitioner, Alfredo Mejia, seeks to vacate his conviction

for violating various federal drug laws, asserting that the

indictment in his underlying criminal case was constitutionally

defective. Specifically, he says that in light of the Supreme

Court’s opinion in Apprendi v . New Jersey,

(2000),

the indictment was required (but failed) to include: (1) the

quantity of crack cocaine he was accused of possessing and/or

distributing; and (2) a reference to the pertinent federal

statute(s) imposing the penalties for the crimes with which he

was charged. Because the record conclusively reveals that he is

entitled to no relief, his petition is denied. See

. Background

On November 7 , 1995, Mejia pled guilty to seven counts of a

superceding indictment charging him with violations of federal

drug laws: one count of conspiracy to distribute and to possess

with the intent to distribute cocaine and cocaine base (also

known as “crack”); and six counts of unlawful distribution of

cocaine and cocaine base. On February 6, 1996, the court

sentenced Mejia to 120 months of incarceration, followed by a

five year term of supervised release.

Pursuant to

, Mejia then sought habeas

corpus relief, saying the government breached the terms of his

plea agreement and claiming his appointed counsel provided

ineffective assistance in violation of his Sixth Amendment

rights. The court concluded that Mejia was not entitled to

relief on either ground, with one possible exception:

Petitioner’s ineffective assistance claim can fairly be read to include a claim that the Guideline Sentencing Range calculation was incorrect, because drug quantities, related to “relevant conduct” that occurred prior to the conspiracy offense charged in Count I , were improperly used to determine the ten year mandatory minimum sentence applicable to Count I . That ten year mandatory minimum resulted in a GSR (Total Offense Level 2 9 , Criminal History Category I ) of 120

2 to 121 months of imprisonment. It appears that the mandatory minimum sentence applicable to Count I (based only on drug quantities relevant to the offense of conviction) should have been 5 years, not ten (i.e. excluding the pre-conspiracy relevant conduct drug quantity). Thus, the GSR should have been 97 to 121 months, not 120 to 121 months.

Mejia v . United States, Civil N o . 97-424-M, at 1-2 (D.N.H. Jan.

2 9 , 1998). Accordingly, the court ordered that notice of the

petition be served upon the United States Attorney and directed

that h e ,

respond on or before February 2 0 , 1998, advising the court as to the government’s position relative to the court’s intention to grant relief by correcting petitioner’s sentence to imprisonment, that i s , reducing it from 120 months to the lowest point in the applicable guideline range (97 months), thereby insuring that no prejudice results from the apparent calculation error.

at 2 . The government responded, saying that it did not

object to the court’s proposal to resentence Mejia to 97 months

of incarceration. On February 2 7 , 1998, the court granted

Mejia’s petition to vacate his sentence, resentenced him to a 97

month term of imprisonment, and reimposed a 5-year term of

3 supervised release.1 On March 2 1 , 2001, Mejia filed the petition

for habeas corpus relief currently before the court.

Discussion

I. Second or Successive Petitions for Habeas Relief.

Under

, as amended by the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), a federal inmate may file

1 It appears that the term of supervised release imposed on Mejia was in excess of that permitted by law and that he should have been sentenced to no more than three years of supervised release. See U.S.S.G. § 5D1.2 (Nov. 1 , 1995). That error was the product of an incorrect interpretation of the applicable Sentencing Guidelines that affected a significant number of defendants sentenced in this district during a particular time period, rather than any Apprendi issue. Although Mejia has not raised that issue in his petition, it will be remedied in due course anyway. This court has taken steps to insure that the term of supervised release imposed on Mejia and other affected defendants is correct. When it was discovered that a number of criminal defendants had erroneously been sentenced to terms of supervised release in excess of those provided by

(b)(1)(C) and U.S.S.G. § 5D1.2, the judges of this court issued procedural orders to all affected parties. Each affected defendant was notified of the error and told that at least two weeks prior to his or her release from prison, the United States Probation Office will file, and the court will grant, a request that the term of supervised release imposed on the defendant be reduced to a level consistent with the applicable Guideline requirements (in this case from five years to three years). Thus, the error concerning Mejia’s term of supervised release will be corrected before he begins serving that aspect of his sentence.

4 a second or successive § 2255 petition only if the court of

appeals first certifies that the petition is based on either:

(1) newly discovered evidence that, if proved and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

. “This statutory directive means that a

district court, faced with an unapproved second or successive

habeas petition, must either dismiss i t , or transfer it to the

appropriate court of appeals.” Pratt v . United States,

4 , 57 (1st Cir. 1997) (citations omitted). 2

Anticipating that his request for relief might constitute a

second or successive habeas corpus petition and seeking to avoid

2 Of course, not every historically second or successive habeas corpus petition is necessarily “second or successive” for purposes of § 2255. See generally Sustache-Rivera v . United States,

, 12-13 (1st Cir. 2000) (discussing several circumstances in which a subsequent petition for habeas corpus relief is not deemed “second or successive” under § 2255), cert. denied,

(2001). As discussed more fully below, however, it is not entirely clear whether Mejia’s petition falls within the bounds of any arguably applicable exception(s).

5 the requirements applicable to such petitions under § 2255, Mejia

asserts that his current petition for habeas relief is brought

pursuant to

. See Petitioner’s letter to the

Clerk of Court (April 5 , 2001) (“My petition is not a § 2255 and

thus, you should not file it under same. I implore you to file

my petition under the original habeas corpus writ, § 2241.”).

II. Construing Mejia’s Petition.

A. The petition is Not Properly Brought under § 2241.

Mejia might avail himself of the remedies available under

§ 2241 if he were to challenge the execution (rather than the

validity) of his sentence. See United States v . DiRusso,

(1st Cir. 1976) (“Section 2255, however, does

not grant jurisdiction over a post-conviction claim attacking the

execution, rather than the imposition or illegality of the

sentence. . . . The proper vehicle for attacking the execution of

[a] sentence . . . is

.”) (emphasis supplied).

Here, however, Mejia attacks the legality of his underlying

federal conviction, saying it was obtained based upon a

constitutionally deficient indictment. Alternatively, he

arguably challenges the legality of his amended 97 month

6 sentence. In either event, however, it is plain that he

challenges the “imposition or illegality” of his imprisonment,

rather than the “execution” of his sentence.

Consequently, in order to bring his current petition

pursuant to § 2241, rather than § 2255, Mejia must necessarily

(albeit implicitly) be claiming that his petition is subject to

§ 2255’s “savings clause” - that i s , that § 2255 is “inadequate

or ineffective to test the legality of his detention.”

. See also Sustache-Rivera v . United States,

(“The savings clause applies if the remedy under § 2255 is

inadequate or ineffective to test the legality of a petitioner’s

detention. Only then may a § 2241 petition be filed that

challenges the legality of a conviction or a sentence.”)

(citation and internal quotation marks omitted). However, as the

Court of Appeals for the First Circuit has observed, “A petition

under § 2255 cannot become ‘inadequate or ineffective,’ thus

permitting the use of § 2241, merely because a petitioner cannot

meet the AEDPA ‘second or successive’ requirements. Such a

result would make Congress’s AEDPA amendment of § 2255 a

meaningless gesture.” United States v . Barrett,

4 , 50

7 (1st Cir. 1999), cert. denied,

(2000). See also

Jiminian v . Nash, __ F.3d. __,

(2d Cir. April 2 ,

2001) (“This opinion considers whether § 2255 may be deemed to

offer an ‘inadequate or ineffective’ remedy within the meaning of

, ¶ 5, thereby allowing a federal prisoner to

file a habeas corpus petition pursuant to

(c)(3),

where a prisoner who had a prior § 2255 motion dismissed on the

merits and cannot meet the AEDPA’s gate-keeping requirements

seeks to raise a claim that was available in a prior § 2255

motion. We conclude that § 2255 cannot be deemed inadequate or

ineffective under such circumstances.”).

Consequently, Mejia’s petition is not properly viewed as

having been brought pursuant to

and the court

must next consider whether it is subject to the restrictions

applicable to “second or successive” petitions. Parenthetically,

the court notes that even if Mejia’s petition could be properly

viewed as having been brought pursuant to

, this

court would lack jurisdiction over i t . See Barrett,

n.10 (“[A] § 2241 petition is properly brought in the district

court with jurisdiction over the prisoner’s custodian (unlike a

8 § 2255 petition, which must be brought in the sentencing

court).”). Because it appears that Mejia is currently detained

in a federal correctional facility located in New Jersey, the

proper forum in which to litigate any claims under § 2241 is the

United States District Court for the District of New Jersey.

B. Is Mejia’s Petition “Second or Successive?”

Because Mejia’s original sentence was vacated and a new

sentence was imposed, there are circumstances under which a

subsequent § 2255 petition might properly escape the requirements

applicable to second or successive petitions. Whether his

pending petition actually falls within that realm, however,

presents a difficult question that appears to be unresolved in

this circuit.

In his current petition for habeas corpus relief Mejia

arguably challenges the validity of his underlying conviction,

saying the indictment upon which his conviction was based was

defective. Construed in that fashion, and assuming he could have

raised that challenge in his prior petition, his current petition

must necessarily be viewed as “second or successive.”

9 As a general rule, a prisoner who had both the incentive and the ability to raise a particular claim in his first petition for post-conviction relief, but declined to assert it, cannot raise it the second time around.

Pratt v . United States

4 , 62 (1st Cir. 1997). See also

Galtieri v . United States,

3 , 37-38 (2d Cir. 1997)

(“[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 original sentence, and will be regarded

as a ‘second’ petition to the extent that it challenges the

underlying conviction or seeks to vacate any component of the

original sentence that was not amended.”). Consequently, unless

Mejia may properly be viewed as challenging his recently amended

sentence, rather than his underlying conviction, this court

probably lacks jurisdiction to address the merits of Mejia’s

petition, which instead must be transferred to the court of

appeals. See Pratt,

(“AEDPA’s prior approval

provision allocates subject-matter jurisdiction to the court of

appeals by stripping the district court of jurisdiction over a

10 second or successive habeas petition unless and until the court

of appeals has decreed that it may go forward.”).

Alternatively, however, one might argue that Mejia raises a

timely challenge to his amended sentence (i.e., within one year

of imposition). His complaint is that his sentence is unlawfully

based upon factors (drug quantity) not proved beyond a reasonable

doubt to a jury. To support that claim, he points to the Supreme

Court’s recent decision in Apprendi.3

One might reasonably posit that Mejia had neither the

incentive nor opportunity to raise such a challenge in his first

petition, since: (1) it predated the Supreme Court’s issuance of

the Apprendi opinion; (2) it would have been contrary to arguably

applicable then-existing circuit precedent; and (3) he might well

have lacked any incentive to argue at trial (or on direct appeal)

3 Under the circumstances described, the fact that Apprendi has not been made retroactively applicable to cases on collateral review,

, para. 6 ( 3 ) , would seem to be of no moment. If one can plausibly argue that Mejia’s petition represents a timely challenge to his amended sentence, he need not avail himself of any of the exceptions to § 2255’s one year statute of limitations (one of which addresses recent Supreme Court decisions specifically made retroactive to collateral attacks on criminal convictions and/or sentences).

11 that the jury should have been presented with evidence concerning

the specific quantities of cocaine that he was allegedly

trafficking. See Sustache-Rivera v . United States,

,

14 n.9 (1st Cir. 2000). Viewed in that context, Mejia’s petition

might escape the requirements applicable to second or successive

petitions, notwithstanding the fact that it i s , historically, his

second petition.

Mejia’s petition plainly presents a somewhat unusual fact

pattern and raises potentially difficult questions concerning the

proper interpretation of § 2255’s “second or successive”

language. The court of appeals recently addressed an analogous

situation, in which an inmate claimed that a § 2255 petition

should not be treated as second or successive “where a facially

meritorious basis for relief becomes available for the first time

- due to a change in law - after a previous § 2255 petition has

already been filed and litigated.” Sustache-Rivera,

. In that case, the petitioner was convicted of carjacking.

However, the question of whether serious bodily injury occurred

during the course of the carjacking was not submitted to the

jury. Instead, that issue was resolved at sentencing, by the

12 court. Subsequent opinions issued by the court of appeals

confirmed that serious bodily injury was merely a sentencing

enhancement and, therefore, need not be submitted to the jury.

Approximately four years later, however, the Supreme Court held

that the serious bodily injury requirement is an element of the

carjacking offense defined in

(2) and, therefore,

must be submitted to the jury. Jones v . United States,

(1999). Thus, much like Mejia, the petitioner in

Sustache-Rivera claimed that the basis for challenging his

underlying conviction and/or sentence only became viable after he

filed his first petition for habeas relief.

Although the court of appeals noted that “the courts of

appeals have routinely treated as second or successive claims

alleged to be ‘new’ due to the Supreme Court’s changing the law,”

at 1 4 , and notwithstanding its having expressed some doubts

about the merits of the petitioner’s argument, the court declined

to resolve whether his petition was properly viewed as second or

successive:

[A]lthough we think the argument questionable, we do not decide the issue, but only note that the premise of [petitioner’s] argument - that he lacked reasonable

13 opportunity to argue that serious bodily injury was an element of the crime - is itself a difficult question.

at 14 (citing Bousley v . United States,

(1998)).

The court then went on the observe, “[m]ore significantly, . . .

whether [the] petition is treated as a first petition or as a

second petition makes no difference for other reasons.”

Sustache-Rivera,

4 .

So it is in this case. Accordingly, for purposes of this

order, the court will assume that Mejia has raised a valid and

timely challenge to his amended sentence. Thus, his petition is

not “second or successive” and this court has jurisdiction to

address it on the merits. Even giving Mejia the benefit of that

doubt, however, his petition necessarily fails on the merits

since it does not raise a viable Apprendi issue.

III. The Rule in Apprendi.

Even assuming that Mejia may properly challenge his amended

sentence as violative of the rule articulated in Apprendi, the

petition and files of record conclusively demonstrate that he is

14 entitled to no relief. See

, para. 2 .

Consequently, his petition must be denied.

In Apprendi 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.”

Apprendi,

(emphasis supplied). In this case,

Mejia was convicted of conspiracy to distribute and to possess

with intent to distribute cocaine and cocaine base, in violation

of

(a)(1) and 846, and unlawful distribution of

cocaine and cocaine base, in violation of

(a)(1).

No drug quantities were specified in the indictment.

Consequently, Mejia was subject to the penalty provisions of

(b)(1)(C) and exposed to the so-called “default

statutory maximum” of twenty years imprisonment. See United

States v . Robinson,

(1st Cir. 2001). As noted

above, however, upon resentencing, Mejia was sentenced to 97

months of imprisonment, well below the 20-year statutory maximum

to which he was exposed. As the Robinson court made clear, such

15 a sentence does not run afoul of the rule articulated in

Apprendi:

In the last analysis, the court meted out only a 121- month sentence - a sentence below the lowest statutory maximum for trafficking in cocaine base. No Apprendi violation occurs when the district court sentences a defendant below the default statutory maximum, even though drug quantity, determined by the court under a preponderance-of-the-evidence standard, influences the length of the sentence imposed.

Robinson,

(citation omitted).

Conclusion

Mejia’s petition for habeas relief is properly viewed as

having been filed under

, rather than

. It i s , therefore, at least arguable that it must be

treated as a “second or successive” petition, over which this

court lacks jurisdiction. The state of the law on that issue i s ,

however, unsettled in this circuit and a colorable argument can

be made that his petition is not subject to the certification

process applicable to second or successive petitions.

Consequently, giving Mejia the benefit of any doubt and

treating his petition as falling outside the realm of those

16 properly viewed as being “second or successive,” the court

concludes that it has jurisdiction to address the merits of his

claim. Unfortunately for Mejia, however, his petition fails to

raise a viable Apprendi issue and the record conclusively

establishes that he is not entitled to the habeas relief he

seeks. Mejia’s motion to vacate under

(document

no. 1 ) i s , therefore, denied. The Clerk of the Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

April 3 0 , 2001

cc: Alfredo L. Mejia, pro se Peter E . Papps, Esq.

17