United States Court of Appeals For the First Circuit

No. 99-1276

FREDERIC W. BERTHOFF,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Circuit Judge, B. Fletcher,* Senior Circuit Judge, and Stahl, Senior Circuit Judge.

Michael C. Bourbeau, with whom Bourbeau & Bonilla was on brief, for appellant. Kevin O'Regan, Assistant United States Attorney, with whom James B. Farmer, Chief, Criminal Division, Dina Michael Chaitowitz, Appellate Chief, and Michael J. Sullivan, United States Attorney, were on brief, for appellee.

October 21, 2002 _____________________ *Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by designation. STAHL, Senior Circuit Judge. Petitioner-appellant

Frederic W. Berthoff appeals from the district court's order

denying his petition for habeas relief pursuant to

. Berthoff was convicted of drug conspiracy and related

charges following a jury trial. His sentence was seven times

greater than that of the next most culpable co-conspirator, who

cooperated with the government and pled guilty. The district court

granted a certificate of appealability (COA) sua sponte, asking

this Court to consider whether the disparity in sentencing violated

Berthoff's right to a jury trial. Later, it added to the COA the

issue of whether Berthoff's conviction violated Apprendi v. New

Jersey,

(2000). We hold that the court below was in

error when it issued the COA, and affirm the denial of the habeas

petition.

I. BACKGROUND

A. The Criminal Proceedings

Berthoff, the kingpin of a drug ring, was indicted on

seventeen felony charges along with five associates.1 Following a

jury trial with co-defendants William Tibolt and Scott Holland,

Berthoff was convicted of conspiring to possess marijuana and

hashish with intent to distribute,

, 846 (Count

One); possessing hashish with intent to distribute,

§ 841

1 The factual details of the criminal conspiracy are set forth in Berthoff v. United States,

(D. Mass. 2001).

-3- (Count Two); tax evasion,

(1) (Count Three); money

laundering,

(a) (Counts Seven through Fourteen);

and witness tampering,

(b)(3) (Count Sixteen).

The United States District Court for the District of Massachusetts

sentenced Berthoff to twenty-one years' imprisonment on Counts One

and Two; three years' imprisonment on Count Three; twenty years'

imprisonment on Counts Seven through Fourteen; and ten years'

imprisonment on Count Sixteen, with the sentences on all counts to

run concurrently.

Thomas Cimeno, whom the district court characterized as

"the individual next to Berthoff most culpable in this conspiracy,"

pleaded guilty prior to trial and cooperated with the government.

Berthoff v. United States,

(D. Mass. 2001).

He received a sentence of three years' imprisonment. Albert Mello,

another "important figure" in the conspiracy, who also pleaded

guilty and cooperated, received the same sentence.

. Wes

Schifone, a lesser figure who also pleaded guilty and cooperated,

was sentenced to five years' probation, the first nine months to be

spent in house arrest. Of the two co-defendants who went to trial,

Tibolt received an eight-year sentence, and Holland received five

years.

In an unpublished decision, this Court affirmed

Berthoff's conviction. United States v. Berthoff, No. 94-1719,

(1st Cir. Nov. 29, 1995).

-4- B. The Habeas Petition

In April, 1997, Berthoff timely filed a petition for

habeas corpus on the ground that he was denied effective assistance

of counsel. He contended that his counsel was required to inform

him about plea overtures that had been made by the government and

about the effect on his sentence of the likely acceptance of

responsibility credit, U.S.S.G. § 3E1.1. The district court denied

the petition, and Berthoff appealed the denial.

On December 9, 1998, the district court granted a COA

that seemingly concerned the constitutionality of the disparity in

sentencing between those defendants who plead guilty and those who

stand trial. The parties, however, proceeded with the

understanding that the issue on appeal was Berthoff's ineffective

assistance of counsel claim.

On December 22, 1999, this Court vacated the COA.

Berthoff v. United States, No. 99-1276,

(1st Cir.

Dec. 22, 1999). Acknowledging the confusion about the issue on

appeal, we remanded with instructions to the district court to

clarify the issue warranting a COA and, if the court decided to

reissue the COA on the ineffective assistance of counsel claim, to

answer five questions set forth in our opinion.

. In

November 2000, while the matter was on remand, Berthoff sought to

amend his § 2255 petition to add an Apprendi claim, arguing that

-5- the amount of contraband should have been presented to and

determined by the jury.

On April 9, 2001, the district court issued a report in

which it answered the Appeals Court's five questions and concluded

that there was no ineffective assistance of counsel. Berthoff,

. Accordingly, it denied a COA as to that

claim.

.2 Next, the court denied Berthoff's motion to

amend his § 2255 petition to include an Apprendi claim on the

grounds that (1) the court lacked jurisdiction to amend the

petition after it had rendered judgment thereon; and (2) amendment

would be futile because the Apprendi claim was time-barred. Id. at

59-60.

Finally, the district court sua sponte granted a COA

concerning "whether the conduct of the prosecutor or this Court in

this case unduly and unconstitutionally burdened Berthoff's Sixth

Amendment right to trial by jury." Id. at 61. The court decried

the widespread practice of fact bargaining, which it defined as

"the knowing abandonment by the government of a material fact

developed by law enforcement authorities or from a witness expected

to testify in order to induce a guilty plea." Id. at 62 n.19.

Although it acknowledged that there was no evidence that fact

bargaining played any role in Berthoff's sentencing, the court

2 On September 25, 2001, this Court affirmed that denial in an unpublished per curiam opinion. Ineffective assistance of counsel is not an issue in the present appeal.

-6- nonetheless suggested that a COA was appropriate on general policy-

based grounds, maintaining that "'substantial assistance' and fact

bargaining together constitute the single greatest cause of the

disparity in sentencing that so burdens the free exercise of the

Sixth Amendment." Id. at 67 n.30. Citing the 700% difference

between Cimeno's and Berthoff's sentences, inter alia, the district

court concluded that Berthoff "has made 'a substantial showing of

a denial of his constitutional right' to trial by jury such that

issuance of a [COA] is appropriate." Id. at 70 (quoting

(c)(2)).

In December, 2001, Berthoff moved to amend the COA to

include the issue of Apprendi's retroactive application to this

case. The district court allowed the motion.

II. DISCUSSION

A. Berthoff's Sixth Amendment Claim

(c)(1) provides, in relevant part, that

an appeal may not be taken from a district court's final order in

a § 2255 proceeding without the issuance of a COA. A COA may issue

only if the applicant has made a substantial showing of the denial

of a constitutional right. Id. at § 2253(c)(2). "A habeas

petitioner who fails to demonstrate that his claims satisfy the

substantial showing standard may not appeal the denial of habeas

corpus at all." Bui v. DiPaolo,

(1st Cir. 1999).

Furthermore, "the necessity for a substantial showing extends

-7- independently to each and every issue raised by a habeas

petitioner."

"Habeas review is an extraordinary remedy and will not be

allowed to do service for an appeal." Reed v. Farley,

(1994) (internal citation omitted). The principles of

finality, federalism, and comity inform the scope of habeas review.

Sanna v. Dipaolo,

(1st Cir. 2001) (citing Brecht v.

Abrahamson,

(1993); Teague v. Lane,

(1989)). Accordingly, a defendant's failure to raise

a claim in a timely manner at trial or on appeal constitutes a

procedural default that bars collateral review, unless the

defendant can demonstrate cause for the failure and prejudice or

actual innocence. Bousley v. United States,

(1998).

In this case, the COA was inappropriately issued because

Berthoff procedurally defaulted his Sixth Amendment claim and

failed to make a substantial showing that his right to a jury trial

was denied. He did not raise that issue at any stage of the

proceedings below: neither at trial, nor on direct appeal from his

convictions, nor in his § 2255 petition.3 Rather, the district

3 Nor does Berthoff make a developed argument as to cause and prejudice or actual innocence on appeal, other than to contend that the sentencing issue was too "novel" to be subject to the procedural default doctrine. See Reed v. Ross,

(1984). In light of this circuit's case law addressing closely related issues, notably United States v. Rodriguez,

(1st Cir. 1998), we find this argument unpersuasive. Finally,

-8- court issued a COA on the Sixth Amendment issue sua sponte, in the

absence of briefing or a hearing.

Moreover, the district court's discussion focused on the

constitutional infirmities involved in fact bargaining and

inappropriately mechanistic downward departures for substantial

assistance. Berthoff,

. Yet the court

concedes that these problems are not present in Berthoff's

situation: there was no evidence of fact bargaining below,

at

67 n.30, and Berthoff and his co-defendants were thoughtfully

sentenced within the Guidelines,

. We need do nothing

more than refer to the district court's own words to emphasize that

the constitutional complaints it postulates have little to do with

the facts of the present case:

[I]n an appropriate case, where the government has engaged in illegal fact bargaining with one defendant, I would not hesitate to hold that a defendant similarly situated in all material respects could take advantage of the fact bargain in order freely to exercise the right to trial by jury guaranteed by the Sixth Amendment.

This is not such a case. After the most thorough reflection, while I fully admit that were I free to do so I would reduce Berthoff's sentence, I can see no principled way to reach such a result and at the same time remain faithful to the judicial decisions that

Berthoff contended in his reply brief that he sufficiently presented the sentencing disparity issue below when he asserted ineffective assistance of counsel, but effectively repudiated this contention at oral argument, conceding that the issues were only tangentially related.

-9- properly control analysis here. The best I can do is grant this certificate of appealability. I respectfully urge the Court of Appeals to address these intractable issues with the aid of the broadest array of amici curiae . . .

(emphasis added). Under these circumstances, to decide

whether fact bargaining violated the Sixth Amendment not only would

contravene the procedural default doctrine but would amount to

issuing an unlawful advisory opinion. Cf. United States v.

Sabatino,

, 96 n.1 (1st Cir. 1991) (Sixth Amendment

rights "are personal in nature and cannot be asserted

vicariously").4

In sum, this case simply is an inappropriate vehicle for

the district court's concerns. We acknowledge that the district

court raises serious and troubling issues regarding sentencing

disparity that merit careful consideration in an

appropriate case; as the trial court concedes, however, this is not

that case. Accordingly, we do not reach the merits of the

constitutional issue at this time.

B. Berthoff's Apprendi Claim

Berthoff contends that his sentence violates Apprendi

because the jury did not make findings as to the triggering

quantities that would support the 21-year drug trafficking

4 Berthoff contends that the 700% sentencing disparity alone -- absent fact bargaining or improper downward departures -- violates his Sixth Amendment rights. As set forth supra, this argument is barred by the procedural default doctrine.

-10- sentence. Under

(b)(1)(B), the jury would have had

to find that he was responsible for at least one hundred kilograms

of a mixture or substance containing a detectable amount of

marijuana.

The district court declined to allow Berthoff to amend

his habeas petition to include the Apprendi claim, although it

later included it in the COA. We generally review a decision

granting or denying a motion to amend a complaint for abuse of

discretion. Watson v. Deaconess Waltham Hosp.,

(1st Cir. 2002).

Berthoff does not argue that the district court abused

its discretion in denying his motion to amend. In any event, we

will not consider the Apprendi claim because the district court

correctly held that it lacked the authority to allow the amendment

after it had entered judgment on Berthoff's § 2255 petition. "A

habeas petitioner may not add new constitutional claims to a

petition after the district court has entered judgment." Ward v.

Whitley,

(5th Cir. 1994). Berthoff did not seek

relief from the district court's judgment pursuant to Fed. R. Civ.

P. 60(b) or any other rule. See Acevedo-Villalobos v. Hernandez,

(1st Cir. 1994) ("Unless post-judgment relief is

granted [under Rule 59 or 60], the district court lacks power to

grant a motion to amend the complaint under Rule 15(a).").

Affirmed.

-11-