Petition for Writ of Certiorari — Galluzzi v. United States

Suoreme Cay ft

F iL Er

031201FEB 19 2004

OPRICE OF Tre CuRK

No.

IN THE SUPREME COURT OF THE

UNITED STATES

JOSEPH P. GALLUZZI,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

Joseph P. Galluzzi, Pro Se

20596-050-Unit 2

F.P.C. Lewisburg

Post Office Box 2000

Lewisburg, PA 17837

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QUESTIONS PRESENTED

1. In light of Miller-Ed v. Cockrell, 123 S.Ct.

1209 (2003) and Ring v. Arizona, 536 U.S. 584 (2002) and

the pending case of Blakely v. Washington, No. 02-1632

(Oct. 20, 2003), is a 6th Amendment Constitutional

denial shown where a Judge, alone, increased a jury

verdict, (which fixed a Guideline level of 10 crime) toa

greatly aggravated level 28 crime, by injecting

uncharged pecuniary loss not submitted to a jury?

fe Whether a denial of the 6th Amendment

right to effective assistance of counsel is shown by the

cumulative prejudice of judicial reliance upon defense

counsel’s substandard conduct including counsel's

stipulation to an erroneous, irreconcilable, after the fact

document which was wrongfully used in calculating an

alleged loss, from a Bond transaction, and the failure to

enforce the appearance of a key subpoenaed defense

witness?

3. Whether a denial of a 6th Amendment

right is shown by the government's utilization of

investigative evidence gathered through a civil action

(SEC) and used for the criminal matter, which material

was denied to the defense by the denial of discovery at

all stages of the proceedings? Does this constitute

willful prosecutorial misconduct, obstruction of justice

and concealment of evidence?

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

TABLE OF CONTENTS

INDEX TO APPENDICES .ccssssssssccsssssssssssvessssecssssssssee iii

TABLE OF AUTHORITIES CITED vecccccccccccsssccccccccecee iv

OPINIONS BELOW .....cccccsssssssscecsssscsssesssssssseseveessesese 1

PORISINTIONG noncsosicscsssds cc eee 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ecccccccccsssssssssssssessvssssssssscec 2

STATEMENT OF THE CASE occssccccccssssssssssssssstsesssesose 3

FACTUAL BACKGROUND. eecccccccssssssssssssssesssssssssszcee 7

§2255 PETITION AND CERTIFICATE OF

APPEALABILITY DENIED WITHOUT

CONSIDERATION OF RING VS. ARIZONA.............. 9

§2255 PETITION AND CERTIFICATE OF

APPEALABILITY DENIAL IGNORING

PREJUDICE OF SUBSTANDARD CONDUCT........... 10

REASONS FOR GRANTING THE WRIT ......eceeeeeee. 13

CAIN. AA TRILL. .csssiiscnssvssosalvcescanpeeevaiencunae inala mannan 26

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INDEX TO APPENDICES

Order and Opinion of United States Court

of Appeals for the Third Circuit dated

April 29, 2003.

Decision of United States District Court for

the District of New Jersey dated June 26, 2002.

Denial of Petition for Rehearing, re:

Certificate of Appealability September 26, 2003

Application for Certificate of Appealability

dated November 1, 2002

Memorandum of Law Supporting Petition for

Certificate of Appealability dated

November1, 2002.

Petitioner’ s Reply Brief to Opposition for

Certificate of Appealability dated

December 26, 2002.

Third Circuit - The Forerunner to Ring

Petition for Rehearing In Banc or

Before Panel dated May 8, 2003.

Brief for Appellee - Direct Appeal. Pgs. 57-60,

SEC Correspondence to AUSA Ralph Marra

dated March 7, 1997.

SEC Privileged Log

A-1

A-3

A-14

A-15

Affidavit - Felipe Ferrand Defense Expert

dated September 11, 2000 A-143

Memo - New Jersey Local Finance Board

dated May 1, 1995. A-147

Reply Brief for Appellant-Direct Appeal Page 4. A-149

Report Andrew Kalotay Associates -

Additional Defense Expert — §2255 Petition

_ dated October 12, 2000. A-151

TABLE OF AUTHORITIES CITED

CASES PAGE NUMBER

Adams v. Peterson, 968 F.2d 835 (9th Cir. 1992) 19

Apprendi v. New Jersey, 530 U.S. 466 (2001) 4,9,15

Berger v. United States, 295 U.S. 78 (1934) 21

Blakely v. Washington, No. 02-1632

(Oct. 20, 2003) 3,4,5,13,14

passim

Brookhart v. Janis, 384 U.S. 1 (1966) 20

Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979) 18,19

Government of the Virgin Islands v.

Frederick, 865 F2d 59 (3'4 Cir. 1989) 18

~

Miller v. Florida, 482 U.S, 423 (1987) 16

Miller-El v. Cockrell, 123 S.Ct. 1209 (2003) 517

Mistretta v. United States, 488 U.S. 361 (1999) 16

Ring v. Arizona, 563 U.S.584 (June 2002) 3,4,5,6,9

passim

SEC v. Dresser, 628 F.2d 1368 (1980) 22,23,24

Strickland v. Washington, 466 U.S. 688 (1984) 1819

Sumerline v. Stewart, (9 Cir. en banc) No.

98-99002, Sept. 2, 2003, on rehearing in 267

F.3d 926 (9th Cir. 2003) 15

United States v. Cepero, 224 F.3d

96 (34 Cir. (2000) 17

United States v. Cronic, US. 648 (1984) 19

United States v. RLC, 903 U.S. 29 (1992) 16

United States v. Williams, 235 F.3d 858

(374 Cir. 2000) 16

STATUTES AND RULES

18 U.S.C. §666 7

18 U.S.C. §1341, 1346 7

18 U.S.C. §1343, 1346 7

18 U.S.C. §1952

28 U.S.C. §2255

OTHER

Federal Rules of Criminal Procedure 15-17

Fifth Amendment of the United States

Constitution

Sixth Amendment of the United States

Constitution

U. S. Sentencing Guidelines

U.S. Sentencing Reform Act -

8,9,10,12

24

2,12,24

2,6,14,19

16,17

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IN THE

SUPREME COURT OF THE UNITED STATES

Petition for Writ of Certiorari

Petitioner respectfully prays that a writ of

certiorari issue to review the judgment below.

OPINIONS BELOW a

° The opinion of the United States Court of

Appeals (Third Circuit) appears at A-1 to the Petition

and is unpublished.

° The Opinion of the United States District

Court appears at A-3 to the Petition and is unpublished.

JURISDICTION

For cases from Federal Courts

° The date on which the United States

Court of Appeals decided this case was April 29, 2003.

A-1,

° A timely petition for rehearing was

denied by the United States Court of Appeals (Third

Circuit) on the following date: September 26, 2003, and

a copy of the Order denying rehearing appears at A-14.

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1251(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides, in pertinent part, that:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury ...;

nor be deprived of life, liberty, or property

without due process of law.

U.S. Const. amend. V.

The Sixth Amendment to the United States

Constitution provides, in pertinent part, that:

impartial jury of the State and district wherein

the crime shall have been committed, which

district shall have been previously ascertained

by law, and to be informed of the nature and

cause of the accusation; ... [and] to have

compulsory process for obtaining witnesses in

his favor, and to have Assistance of Counsel for

his defense.

U.S. Const. amend. VI.

BOT OR

STATEMENT OF THE CASE

Unpublished Opinion Dilemma

Petitioner finds himself in the position to

challenge “Opinions” marked “not for publication” by

both the District Court and the Circuit Court of

Appeals. These decisions, despite the magnitude of

their impact, classifies these Opinions as not to be cited

for precedent or included in the database of judicial

opinions. As is common practice where an

“unpublished opinion” is used there is a dismissive

disposition of the facts of the matters and the supported

documented claims made. This Petitioner has been

prejudiced; his ability to obtain a fair and complete

review of his appeal process has been denied. Coupled

with the fact that the District Court, the Government

and the Third Circuit Court of Appeals failed or chose

not to address any of the claims put forth by the

Petitioner is beyond comprehension in light of ones

right of “due process”. Thus, the following issues and

required extended Appendix forced by this practice is

submitted.

The First Issue presented in this case involves

important 6th Amendment constitutional questions that

should be settled by this Court which has been decided

by the Third Circuit Panel, in a way that conflict with

the decisions of this Court in Ring v. Arizona, 563 US.

984 (June 2002). The same issue is presently before this

Court Blakely v. Washington, No. 02-1632 (Oct. 20,

2003).

This Third Circuit Panel’s decision is also in

conflict with other Third Circuit decisions on the same

issues. There is, as seen in Blakely, a conflict in the

various courts respecting the same. Specifically, here

the sentencing Judge, alone, greatly aggravated the

crime of conviction from the jury verdict. This

aggravation was implemented by the improper

determination of an alleged pecuniary loss, uncharged

and not found by ajury.

Under the Jury’s verdict, the Petitioner's

sentence was a level 10, i.e., a sentence not to exceed

twelve (12) months, the sentencing Judge, alone,

increased the level 10 crime to a level 28, imposing an

increase sentence to 90 months, 78 months beyond the

jury verdict. The District Court totally ignored the Ring

mandate respecting a jury verdict guaranteed by the

6th Amendment of the Constitution of the United

States. The Petitioner raises this conflict as a substantial

showing of a Constitutional denial, citing Apprendi v.

New Jersey, 530 U.S. 466 (2001) in support of his §2255

Habeas Corpus Application, and then following in the

Circuit Court the supporting decision of Ring v.

Arizona. The District Court chose to ignore Petitioner’s

Ring argument and held Apprendi as not applying to

the Federal Sentencing Guidelines. The Third Circuit, it

- appears, without review, also ignored Petitioner’s Ring

claim and denied a “Certificate of Appealability”.

In Blakely, presently pending before this Court, a

similar sentencing guideline challenge is presented.

That case invokes the guidelines of the State of

Washington, which are indeed near - identical, to the

Federal Sentencing Guidelines. The case at bar presents

a timely opportunity to decide the conflict among the

Circuits regarding the federal law, as well as the State

law. As in Blakely, this case addresses the decision of

this Court in Ring v. Arizona. Ring held that juries, not

judges, must find the “aggravating” pecuniary facts

that increases a defendant's sentence. Blakely raises the

same issues on a state level raised by Petitioner below:

° Does the Ring decision apply to non-

death penalty cases, as the language of this Court

appears to state?

° Does the Ring decision apply to the

Sentencing Guidelines?

° Does the zone between the maximum

guideline range of the jury verdict, and sentence”

imposed, exceed the Constitutional limit of Court

enhancement of a sentence?

On appeal, a panel of the Third Circuit, without

reasoning, denied a Certificate of Appealability to the

Petitioner. The Application for a Certificate of

Appealability stressed, among other important issues,

the ignoring of Ring by the District Court. Petitioner

then urged reconsideration in light of Miller-E] v,

Cockrell, 123 S.Ct. 1209 (2003).

In Miller-El, this Court stated that a Certificate of

Appealability should be issued where the lower court

ignored, without full consideration, essential facts and

legal claims shown by the Appellant. This Court further

stated, in Miller-El, that a Certificate of Appealability

should be granted where the claim of Constitutional

denial is “debatable among jurists of reason”. Credibily,

the granting of the writ of certiorari in Blakely was

based on the establishment of debatability. The

Petitioner urges that such debatability is clearly present

in this case. Panels of this same Third Circuit, even

prior to Ring, adopted the rationale of protecting sucha

jury guarantee See A-91 to A-94 “Third Circuit -

Forerunner to Ring”. The clear mandate of this Court,

as hereinafter set forth, places this Third Circuit Panel’s

decision in direct conflict with Ring v Arizona.

The Second Issue addresses the showing of a 6th

Amendment violation claim resulting from the

ineffectiveness of counsel. Here again, the District

Court and Appeals Court ignored the clear

documented facts and legal argument of the Petitioner.

The substandard commissions and omissions of

counsel included the prejudicial stipulation of defense

counsel to a government’s mischaracterization of a

dated and incorrect schedule, at sentencing, without the

consent of Petitioner or an explanation of the severe

impact of same on Petitioner’s sentence. The District

Court compounds the effect by not giving any

instruction, inquiry or explanation, to the Petitioner, as

to the impact the Court's reliance on said schedule

would have on Petitioner’s sentence.

The Third Issue is one of Prosecutorial

Misconduct and Agency Bad Faith. It ranges from the

use of a simultaneous civil action, by the Securities and

Exchange Commission, (SEC), to gather evidence for

the government's criminal action, together with the

concealment of trial evidence.

The government enjoyed a unilateral stay of

discovery against Petitioner. The government, though

successful in obtaining a stay of discovery from the

simultaneous civil action, for all parties, dishonestly

represented to the Court that no discovery had been

2 apo,

made to that time, and then in defiance of said “Order”

continued to request and receive SEC investigative

material after the date of the “Order” and before the

criminal trial had been concluded. Petitioner/ Appellant

was prejudiced by being denied discovery of the same

material and information that the government

improperly obtained and utilized.

A. FACTUAL BACKGROUND

By Superseding Indictment No. 96-640,

Petitioner was accused of fourteen counts of mail fraud

(18 U.S.C. §1341, 1346) two counts of wire fraud (18

U.S.C. §1343, 1346), five counts of bribery (18 U.S.C.

§666), and five counts of using a facility in-interstate

commerce to commit bribery (18 U.S.C. §1952).

The charges were premised on the theory that

Petitioner abused certain financial Positions he held

with Essex County by taking alleged bribes or

kickbacks in exchange for referring bond and financing

Projects to various entities. On April 24, 1998, the jury

found Petitioner guilty of all 26 counts. The jury did not

find nor were they asked to find aggravating

elements/ factors of pecuniary loss or obstruction of

justice. Instead, a sentencing hearing was conducted

before a judge to determine an amount of alleged loss.

After that hearing, the sentencing court, alone,

concluded that a preponderance of the evidence

showed that the loss exceeded.$5 million, warranting

an increase of 14 levels to the offense level. The loss was

based on non-jury findings and were allegations that

Essex County lost millions of dollars as a result of a

debt re-structing plan, not alleged in the indictment.

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The court also held that a 2-level increase for an

alleged obstruction of justice was warranted, based on

testimony before the Securities and Exchange

Commission. Ultimately, the offense level was

aggravated to be 28 and the corresponding guideline

range 78-97 months. Accordingly, on September 10,

1998, the Court sentenced Petitioner to concurrent

terms of 90 months imprisonment on several of the

counts, and lesser concurrent terms on other counts, as

well as restitution in the amount of $350,000. A

judgment was entered accordingly on September 18,

1998.

On appeal to the United States Court of Appeals for the

Third Circuit, petitioner raised various issues,

including that: the evidence of guilt was legally

insufficient; the district court erroneously admitted

certain evidence; the prosecutor’s conduct in

connection with a civil proceeding was improper; the

court should have applied a heightened burden of

proof when evaluating the amount of loss; and that the

court's findings regarding the loss and obstruction of

justice were not supported by the record. The

conviction and sentence were affirmed in an

unreported decision on May 28, 1999, and a petition for

a writ of certiorari was denied on December 6, 1999, 528

U.S. 1048 (1999).

A petition for a writ of habeas corpus was filed

pursuant to 28 U.S.C. §2255 on December 6, 2000. This

petition was denied pursuant to district court’s opinion

dated June 26, 2002, Ordered June 28, 2002. A-3 to A-13

B. §2255 Petition and Certificate of

Appealability Denied Without

Consideration of Ring vs. Arizona.

Ring v. Arizona is applicable in this case. It

requires that the alleged loss and obstruction of justice

facts, which drastically aggravated the sentencing range

level above the crime of conviction, be found by a jury

not a judge alone. The District Court totally failed to

address, or consider, the then recent United States

Supreme Court decision of June 24, 2002, in Ring v.

Arizona. Petitioner urges that Ring mandates that the

portion of the statutory scheme under which the

District Court enhanced Petitioner’s crime of conviction

to a higher level, based on aggravating uncharged and

unfound crime outside the jury verdict was

unconstitutional. It violates Petitioner’s guarantee of a

jury trial. Had the District Court addressed the Ring

declaration, its opinion and order would have

necessitated that the §2255 Petition be granted.

The District Court held that, “Appellant's

sentence was not unconstitutionally enhanced”. A-5 to

A-8. The District Court acknowledge that the

enhancement of Petitioner’s sentence, “were on the

basis of loss and obstruction of justice, where the jury

was not asked to decide on these issues”. A-8 to A-9.

The Court erroneously held that “ Apprendi is not

applicable to Appellant's situation because the penalty

imposed, on Appellant, was within the statutory

range.” id. Not only was the Court in error on its basic

Apprendi premise, it failed to respect the Third Circuit

cases on the subject. A-91 to A-94, “Third Circuit - The

Forerunner to Ring”.

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The Third Circuit following a practice of

automatic deference to the District Court, likewise

failed to consider Ring and its own decisions to the

contrary. The rubber stamping practice of some Panels,

of the Third Circuit, results in a generic denial of a

Certificate of Appealability without reasoning, relying

solely on the District Court’s incomplete review of

Petitioner’s petition.

ad §2255 Petition and Certificate of

Appealability Denial Ignoring Prejudice

of Substandard Conduct.

Despite Petitioner’s substantial showing of

defense counsel's ineffectiveness, and resulting

prejudice, the government, District and Appeals

Courts, failed to challenge or dispute, in any manner,

the facts presented by Petitioner. Therefore, these

unchallenged claims must be accepted as factual and

correct. Petitioner has clearly pointed to specific errors

and omissions that document the fact that he did not

receive reasonably, competent and effective assistance

of counsel, and of prosecutorial misconduct which

seriously prejudiced Petitioner, causing his sentence to

be unfairly enhanced.

° Defense Counsel failed to bring before the

Court the testimony of 2 A.G. Edwards

V.Ps that contradict the government's and

the Court's findings regarding alleged

kickbacks, and failed to object to the

increase to alleged monetary loss

calculation of alleged kickbacks. A-39 to

A-41 of Memorandum and A-49 to A-63,

1998 Bond Refunding.

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° Defense Counsel failed to correct the

Court in its mischaracterization of loss as

opposed to testified costs. A-48 to A-53.

° On A-53 to A-57, defense counsel

“stipulates”, without Appellant's consent

to the reliance on Government Exh. CH-9,

to “sell bond deal” to BOCF. The schedule

in the Exhibit was not available to

Appellant as the Court assumed. Defense

counsel fails to correct the Court on its

reliance. Impact $4.7 million added to loss

calculation enhancement. This

“stipulation” is unconstitutional. id. A-57.

° Defense counsel fails to ask government's

expert to produce his work papers, that

were subpoenaed and thereby foreclosing

defense expert witness to challenge

government's report, thus prejudicing

Appellant. A-143 to A-146, Defense

Expert’s Affidavit.

° Defense counsel failed to enforce the

appearance of subpoenaed key. witness:

at sentencing. A-59 to A-63.

Since no response or challenge is made by the

government, District Court or Appeals Court, each

must be accepted as true and accurate for Petitioner. No

government dispute exists to the ineffective counsel

facts presented in Petitioner’s “Memorandum of Law”,

filed to support the request for a Certificate of

Appealability. A-25 to A-72, Also see A-15 to A-24,

“Application for a Certificate of Appealability”.

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D. §2255 Petition and Certificate of

Appealability Denied Ignoring

Prosecutor’s Misconduct and

Obstruction of Justice.

° U.S. Attorney used improperly obtained

SEC investigative material, at trial, in violation of an

“Order” staying discovery and the limitation’s as set

forth in the Federal Rules of Criminal Procedure 15-17.

° The U.S. Attorneys alliance, confluence

with the S.E.C.’s Division of Enforcement and the

manner in which it was orchestrated did undermine

and violate Appellant’s due process and 5th

Amendment privileges.

¢. The USS. Attorney falsely states, to the

Court, that they did not receive or share investigative

material with the S.E.C. up and until the time of the

execution of the “Order” staying discovery (12/8/97).

See Memorandum of Law, A-63 to A-70 and, “Brief for

Appellee” A-110 to A-112. Appellant's discovery of

documenis, almost three (3) years after trial exposes

this blatant misrepresentation to the Court.

° Subsequent discovery, granted to

Appellant (2001) uncovered critical documentation

previously suppressed and concealed that would have

impacted favorably for Appellant, on certain aspects

and allegations at the criminal trial.

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Reasons for Granting the Petition

(1) |The Lower Court’s Conflict With Ring v.

Arizona and Decisions of Other Panels of

Third Circuit.

The conflict with the Supreme Court's decision

in Ring v. Arizona, 563 U.S. 584 (2002) combined with

the District Court’s opinion and the Appellate Court's

ignoring of same, without reasoning, is important

reason for this Court to grant this Petition.

This Court’s clear mandate in Ring v. Arizona

has been totally ignored here and in other Circuits. This

Court's serious concern for the erosion of the 6th

Amendment jury guarantee is demonstrated and

arrogantly paraded before it, in this case. It is not a

question of misunderstanding this Court's directive -

No - it is the full ignoring of the same. The well

documented collection of cases in conflict on these

issues and the Blakely case is incorporated herein by

reference.! It calls for the exercise of this Court's

supervisory power. The issues in Blakely raises

important questions of federal law that have not been,

and should be settled by this Court. Blakely involves

State sentencing guidelines with a feigned position that

the U.S. Sentencing Guidelines are different. That

position in Blakely, left unresolved, will seriously set

back prior decisions of this Court, regarding the

legislative authority of the Federal Sentencing

Guidelines. The granting of this writ of certiorari will

' Particularly see Brief Amici Curie of the National Association of

Criminal Defense Attorneys, filed in Blakely v. Washington, and

A-91 to A-94, “Third Circuit Forerunner to Ring”.

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prevent any further conflict with the ultimate decision

by this Court in Blakely.

(1a) Ring v. Arizona - Claim Ignored.

The Miller-El standard of “debatability among

jurists of reason” places before this Court the hostile

reception of Ring v. Arizona by the Circuit Court Panel.

The Third Circuit is representative of Circuits that have

within its own Panels, a severe conflict with Ring’s

rationale to protect the 6th Amendment jury trial

guarantee. See Blakely v. Washington, supra, and A-91 |

to A-94 “Third Circuit — The Forerunner To Ring”.

This Court, most strongly, stated in Ring:

/

. “What today’s decision says is that the jury must

find the existence of the fact that an aggravating |

factor existed”. Ring v. Arizona, No. 01-488, June

24, 2002, (Scalia, J. concurring at page 4).

“Capital defendants, no less than non-capital |

defendants, we conclude, are entitled to a jury )

determination of any fact on which the |

legislature conditions an increase in their :

maximum punishment”. We see no reason to

differentiate capital crimes from all others in this

regard”. Ring, id. at p. 2 and 21, Op. of the

Court, Ginsburg, J.

“The right to a trial by jury, guaranteed by the

Sixth Amendment, would be senselessly

diminished if it encompassed the fact-finding

necessary to increase a defendant's sentence by

two years, but not the fact-finding necessary to

put him to death”. “We hold the Sixth

Be)

Amendment Applied to both”. Ring, id. at 23 -

Ginsburg, J. Op. of the Court.

“... Whether the statute calls them elements of

the offense, sentencing factors or Mary Jane --

must be found by a jury beyond a reasonable

doubt”. Ring, id. Scalia, J. concurring p. 2.

“*** over the last 12 years accelerating propensity

of *** Federal legislatures to adopt sentencing

factors: determined by judges that increase

punishment beyond what is authorized by the

jury verdict *** cause me to believe that our

peoples traditional belief in the right of trial by

jury is in perilous decline ***” Ring, id., Scalia, J.

concurring at p. 3.

Some circuits restrict this preservation of jury

guarantee to capital legislative sentencing schemes

only, as noted in Blakely. Yet, this Court expressly

stated that it “applied to both” capital and non-capital

cases. Ring, id at 23, Ginsburg, J. Op. of the Court. The

more recent decisions recognize the Ring reasoning as

“substantive” and “structural” and also deem it to treat

it as merely an extension of Apprendi v. New Jersey,

see Sumerline v. Stewart, (9th Cir. en banc) No. 98-

99002, Sept. 2, 2003, on rehearing in 267 F.3d 926 (9th

Cir. 2003).

In the case at bar, Petitioner raised the issue that

the Federal Guidelines have the status of “law”

preempting old statutory maximums. This is similar to

Ring deeming unconstitutional a legislative regime that

permitted the sentencing judge, alone, to increase a jury

verdict to a greatly aggravated crime by injecting

uncharged pecuniary facts. A parallel structure exists

under the Federal Sentencing Guidelines relative to the

fraud crime alleged here. The pecuniary facts, in both

cases, determined the various ranges of grids of crime

and their respective maximum penalties. These facts

were found by a judge, alone.

Petitioner below-urged alternatively that: (1) the

sentencing maximum for the crime of conviction is

fixed by the U.S.S.G., and (2) In light of Ring v. Arizona

the portion of the Guideline regime that permits such

judge transformation of jury verdicts, is

unconstitutional.

The Third Circuit case of United States v.

Williams, 235 F.3d 858, 868 (3rd Cir. 2000), was relied

upon by the lower courts. It holds the 6th Amendment

protection does not extend to the Guideline maximum.

It is in conflict with Ring. It is also in conflict with other

decisions of this Court respecting the statutory nature

of the Guidelines. In this respect the Court's attention is

lead to the decisions in United States v. R.L.C., 503 U.S.

29 (1992), Mistretta v. United States, 488 U.S. 361 (1999);

and Miller v. Florida, 482 U.S. 423 (1987). The lower

courts, however, relied upon Williams to support the

maximum allowable sentence being mandated by the

pre-Guideline statute and ignored Petitioner’s urging of

R.L.C., Mistretta and Miller, as controlling.

Petitioner urges that this Court clarify that the

Federal Guideline range decisions have the “force and

effect of law”. Mistretta v. United States, supra at 415,

Scalia, J. dissenting. Also affirming the holding of this

Court that the Guidelines are “law” in Miller v. Florida,

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supra and United States v. R.L.C., supra, that

Guidelines are “statutes”.

Determinate sentences were established as a

result of the U.S. Sentencing Reform Act and the

implementing U.S. Sentencing Guidelines. The

maximum sentence imposable by the Court is

constrained by the guideline criminal classification, the

bundling of offenses and the ranges as established by

the conviction of the elements of the crime. The

statutory maximum previously applied during the

period of indiscriminate sentencing procedures have

been superseded by the Federal Sentencing Guidelines.

These “Guidelines” are in fact a statute and have the

force and effect of law. They constitute the present

statutory maximums. Many Circuits, including some

Panels of the Third Circuit, still return to the pre-

Guidelines statutory maximum. See United States v.

Cepero, 224 F.3d 256, 268 (3rd Cir. 2000).

A severe conflict exists between the Panels in the

Third Circuit and other Circuits on this very issue of

constitutionality of the federal legislation and

sentencing practice that Ring condemns. With sucha

state of difference of opinion there is a claim “debatable

among jurists of reason”, under Miller-El v. Cockrell. It

is essential that this Supreme Court intervene clarify

and resolve this existing conflict.

Ys There Is A Conflict With This Court's

Decision Respecting Ineffective Counsel

Prejudice Resulting From Erroneous

Stipulation of Wrongful Facts and Failure

to Enforce Appearance of a Key

Subpoenaed Witness.

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° Attorney’s performance was unreasonable

under prevailing professional standards and that this

performance prejudiced the defense, i.e. “that there is a

reasonable probability that but for counsel's

unprofessional errors, the result of the proceeding

would have been different”. Government of the Virgin

Islands v. Frederick, 865 F.2d 59 (3rd. Cir. 1989) (citing

Strickland v. Washington, 466 U.S. 688 (1984) see

“Memorandum of Law”, A-49 to A-63.

° Sentencing transcripts clearly reveal that

defense counsel erroneously stipulated to the Court

that Appellant used government schedule known as

EXH. CH-9, (as court characterizes) “in selling this

deal” to the Board of Chosen Freeholders - see

Memorandum of Law, A-54 to A-56.

° Defense counsel stipulated without

- Appellant’s consent or discussion regarding reliance on

said Exhibit. This schedule was not available to

Appellant to sell this deal at the time of the transaction.

Defense Counsel fails to correct the Court on their

reliance and assumptions. The sentencing Court failed

to question or inform Appellant as to the extent of

defense counsel's stipulation and the Court's reliance

thereon. Impact $4.7 million - approximately 78 month

increase in sentence. Stipulation Is Unconstitutional. see

Memorandum of Law A-54 to A-59.

“when facts which tend to establish guilt are

submitted on stipulation, the Court must determine

whether the consequences of the admissions are

understood by the defendant and whether he consented

to them”. Cox v. Hutto, 589 F.2d 394, 396 (8th Cir.

1979)(emphasis supplied).

19

“Lower Courts have held that admissions and

stipulations of guilt by counsel are the “functional”

equivalent of guilty pleas”. Cox v. Hutto, 589 F.2d 394,

296-97 (8th Cir. 1979). |

‘Thus like guilty pleas, the Court is required to

question the defendant to determine whether he

knowingly and voluntarily agreed to the admission or

stipulation. Without such an inquiry, there would be

constitutional error that would be presumptively

prejudiced. id at 396”. see also Adams v. Peterson, 968

F.2d 835, 843 (9th Cir. 1992) conviction (sentencing)

based on stipulation valid only if defendant voluntarily

and knowingly agreed to admission or stipulation.

Conflict With the Applicable U.S. Supreme

Court Decisions

re — Sixth Amendment Violation:

To sustain a claim of ineffective assistance of

counsel defendant must show that counsel's

performance was deficient and that that performance

prejudiced defense. Strickland v. Washington, 466 U.S.

688, 687-96 (1984), United States v. Cronic, 466 U.S. 648,

658 (1984).

The Supreme Court has stated there are

exceptions to that general rule:

“In certain Sixth Amendment contexts, prejudice

is presumed actual or constructive denial of counsel

altogether is legally presumed to result in prejudice”.

Strickland, 466 U.S. at 692 (emphasis added).

20

Concessions and Stipulations by counsel amount

to a waiver of constitutional rights of a defendant

without the defendant's consent is:

“Constitutional error of the first magnitude and

no amount of showing of want of prejudice would cure

it.” Brookhart v. Janis, 384 U.S. 1,3 (1966)!

° Defense counsel failed to bring before the

Court contradictory testimony regarding enhancement

for “obstruction of justice”. A-39 to A-41.

° Defense counsel fails to remind court of

contradictory public testimony disclosing costs of Bond

transactions; not loss as government mischaracterizes

~ for sentencing. A-49 to A-53.

° Defense counsel failed to ask

government's expert to produce work papers, that were

subpoenaed, thereby, hampering defense expert

witness to challenge government's report. See A-57, See

Also A-143 to A-146 and A-149 to A-150.

~

° Defense counsel fails to enforce

appearance of subpoenaed key witness at sentencing.

A-59 to A-63.

The decisions in the unpublished District Court

and Circuit Court opinions, in this case, clearly are in

direct conflict with the decisions of this Court. Such a

conflict brought about by unpublished opinions are of

such a manner as to require resolution by this Court.

21

3, Pervasive Prosecutorial Misconduct

Requires Supervision of this Supreme

Court.

Quoting Supreme Court Justice George

Sutherland’s summation in Berger v. United States, 295

U.S. 78 (1934), stating:

“The United States Attorney is the representative

not of an ordinary party toa controversy, but of

a sovereignty whose obligation to govern

impartially is as compelling as its obligation to

govern at all; and whose interest, therefore, ina

criminal prosecution is not that it shall win a

case, but that justice shall be done. As such, he is

in a peculiar and very definite sense the servant

of the law, the two-fold aim of which is that guilt

shall not escape or innocence suffer. He may

prosecute with earnestness and vigor -- indeed,

he should do so. But, while he may strike hard

blows, he is not at liberty to strike foul ones. It is

as much his duty to refrain from improper

methods calculated to produce a wrongful

conviction as it is to use every legitimate means

to bring about a just one.”

The role of the government in a criminal case is

not only to be the plaintiff but also to represent the

defendant, by ensuring that he is treated fairly by

respecting his due process rights, see A-73 to A-89,

“Reply to Government's Opposition”.

In light of post-trial and post-sentencing

discovery, Petitioner charges that the manner and

extent that the U.S. Attorney’s Office, in confluence

ee ————-

22

with the Security and Exchange Commission (S.E.C.),

used the investigative powers of the S.E.C. to gather

information and material to support their effort to

obtain a criminal indictment and conviction, in

violation of an “Order” staying discovery. Discovery

was denied Petitioner by this same “ORDER”.

This orchestrated alliance with the S.E.C.’s

Division of Enforcement did undermine and violate

Petitioner’s due process and Fifth Amendment

privileges as warned in SEC v. Dresser, 628 F.2d 1368-

1381 (1980) — see Memorandum of Law, A-65 to A-71.

° Prosecutorial misconduct claimed in

Petitioner’s Direct Appeal was addressed as “ frivolous”

by the Government. see A-111. The government then

proceeds to lie to the Court stating that “no discovery

was done by either party up until the time of the

district court's order staying discovery”. A-112. The

government continues, stating that “the civil discovery

process was not used to advance the criminal case

against Galluzzi.” -- “Moreover, the U.S. Attorney’s

Office did not need to use the S.E.C. civil discovery

tools, given that it obtained all of the information that it

needed from its own separately conducted criminal

grand jury investigation”. A-112.

° Post-trial discovery, obtained in 2001,

from S.E.C. files clearly prove that the representations

made by the government are false. A-117 to A-142

reflects the inter-agency sharing of evidence and

information before and after the “Order” staying

discovery until the completion of the criminal case.

S.E.C. investigative material was utilized and read into

the trial record. The “Order” staying discovery was as a

23

result of the government's objection to Petitioner’s

subpoena for S.E.C. discovery. Therefore, Petitioner

was denied discovery of S.E.C. files, while the

government acted in defiance.

The government violates provisions of SEC v.

Dresser, 628 F.2d 1368,1381 (1980), which states,

although establishing authority for government

agencies to “conduct investigations regarding the same

party, at the same time, that a criminal investigation is

underway”, Dresser trumpets a warning:

id. at 1374 ..., “In the absence of substantial

prejudice to the rights of the parties involved,

such parallel proceedings are un-objectionable”

... the Sherman Act provides ... and the suits

may be brought simultaneously or successively”.

“The Order of their bringing must depend upon

the Government; the dependence of their trials

cannot be fixed by a fast rule or made

imperatively to turn upon the character of the

suit.”

It is obvious that the recently discovered

documentation of U.S. Attorney’s access requests is

confirmation that S.E.C. investigation was primarily to

aid the government in their criminal investigation. It is

clear that this was pre-meditated and prejudicial.

Continuing-- in Dresser, at 1375 — 1376:

“other than where there is specific evidence of

“Agency Bad Faith” or malicious government

tactics, the strongest case for deferring civil

proceedings is where a party under indictment --

a ee

24

- is required to defend a civil or administrative

action involving the same matter”. The non-

criminal proceeding, if not deferred, might

undermine the party’ s Fifth Amendment

privilege against self —incrimination, expand

rights of criminal discovery beyond the limits of

Federal Rule of Criminal Procedure 16(b) --- or

otherwise prejudice the case”. id. 1376. Dresser

also states at 1381---” there is no danger that

Justice might broaden its discovery rights,

because the subpoena power of the grand jury is

as broad---perhaps broader than that of the

SEC”. Justice can procure from Dresser

(Appellant) directly whatever materials it might

procure indirectly through the SEC.” “In fact,

party investigated under SEC rules instead of

grand jury procedures is accorded far greater

protection---”.

The U.S. Attorney’s actions in concert with the

S.E.C. violates the significant tenant of the above cite.

see Memorandum of Law, A-66 to A-68. A clear

violation of Appellant’s 5th Amendment privilege is

perpetrated. To further prevent justices right to

criminal discovery in concert with the S.E.C.:

“the strict limitation on discovery in criminal

cases, embodied in Federal Rules of Criminal

Procedure 15-17, do not take effect until after a

grand jury has returned an indictment.” Id. at

1381.

See Memorandum of Law A-66 to A-71.

25

The U.S. Attorney violated this rule, by their

request and receipt, through an S.E.C. Senior Attorney,

a copy of Appellant’s deposed privileged testimony,

almost two months after the indictment issued January

7, 1997. See A-115 Therefore, two violations exist. (1)

Untruthfully stating that no discovery was conducted

prior to the issuance of an Order staying discovery until

completion of the criminal matter, and (2) violation of

Federal Rules limiting discovery after an indictment

has been returned.

The newly discovered evidence is clear

documented proof that the U.S. Attorney is guilty of

prosecutorial misconduct and their obvious partnership

with the S.E.C. to conceal or suppress evidence is

indeed Agency Bad Faith.

Newly discovered documents, from S.E.C. files,

also revealed that the County of Essex conducted a

Refunding Bond Sales in 1995, similar to the one issued

in 1989. See A-147 to A-148. The 1989 issue was

mischaracterized as fraudulent by the U.S. Attorney

and the Courts, resulting in an enhancement of at least

78 months to Appellant. No one was indicted regarding

the 1995 Bond Issue. The availability of this

documentation would have impacted favorably against

a 14 point enhancement from the Court.

Additional new discovery reflects the impact of a

subpoenaed witness, Clifford Goldman, regarding the

significant 1989 Bond Refunding that became a

sentencing factor. Witness did not appear; the Court

determined his testimony was not necessary. Defense

counsel failed to object to Court’s decision, and

discovery revealed that Mr. Goldman was told that he

26

did not have to appear in answer to subpoena, at

Appellant's sentencing hearing, see Memorandum of

Law, A-59 to A-63.

Petitioner begs that based on the facts presented,

serious concerns are evident regarding due process

rights, prosecutorial misconduct, ineffective assistance

of counsel, court's interference in defense arguments,

critical sentencing errors resulting of the court's

improper reliance on inaccurate information and

defense counsel’s stipulation. Such an improper

deviation from the accepted and usual course of judicial

proceedings and prosecutorial responsibility warrants

the exercise of this Court’s power of supervision and

the granting of this petition for certiorari.

Conclusion

The Petition for a writ of Certiorari should be

granted.

Dey eee.

January 23, 2004 Bs.

Joseph P. Gallizzi , Pro Se

Sones ve

031201FEB 19 2004

No.

IN THE SUPREME COURT OF THE

UNITED STATES

JOSEPH P. GALLUZZI,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

APPENDIX

Joseph P. Galluzzi, Pro Se

20596-050-Unit 2

F.P.C. Lewisburg

Post Office Box 2000

Lewisburg, PA 17837

INDEX TO APPENDICES

Order and Opinion of United States Court

of Appeals for the Third Circuit dated

April 29, 2003.

Decision of United States District Court for

the District of New Jersey dated June 26, 2002.

Denial of Petition for Rehearing, re:

Certificate of Appealability September 26, 2003

Application for Certificate of Appealability

dated November 1, 2002

Memorandum of Law Supporting Petition for

Certificate of Appealability dated

November1, 2002.

Petitioner’s Reply Brief to Opposition for

Certificate of Appealability dated

December 26, 2002.

Third Circuit - The Forerunner to Ring

Petition for Rehearing In Banc or

Before Panel dated May 8, 2003.

Brief for Appellee - Direct Appeal.

SEC Correspondence to AUSA Ralph Marra

dated March 7, 1997.

SEC Privileged Log

A-14

A-25

A-73

A-91

A-95

A-110

A-115

A-117

Affidavit - Felipe Ferrand Defense Expert

dated September 11, 2000 A-143

Memo - New Jersey Local Finance Board

dated May 1, 1995. A-147

Reply Brief for Appellant-Direct Appeal Page 4. A-149

Report Andrew Kalotay Associates -

Additional Defense Expert — §2255 Petition

dated October 12, 2000. A-151

APS-176 April 10, 2003

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

C.A. No. 02-3267

JOSEPH GALLUZZI

VS. .

UNITED STATES OF AMERICA

(D.N.J. CIV. NO. 00-CV-05952)

Present: SLOVITER, MCKEE, AND SMITH,

CIRCUIT JUDGES.

Submitted are:

(1) Appellant’s request for a certificate of

appealability under 28 U.S.C. § 2253(c)(1);

(2) Appellant’s memorandum of law in support

thereof;

(3) Appellee’s memorandum of law in opposition

thereto;

(4) Appellant’s reply; and

(S) Appellant’s document titled “Motion to File

Over Length Memorandum of Law in Support

of Application for Certificate of

Appealability” construed as “Second Motion

for Leave to File Memorandum of Law in

Excess of 20 pages” in the above-captioned

Case.

Respectfully,

Clerk

MMW/WMS/zm/clc

ORDER

Appellant’s “Motion to File Over Length Memorandum of

Law in Support of Application for Certificate of

Appealability,” construed as “Second Mation for Leave to

File Memorandum of Law in Excess of 20 Pages” is granted.

However, the foregoing request for a certificate of

appealability is denied. The District Court’s conclusion that

appellant’s claims are meritless is not debatable among jurists

of reason. Miller-El v. Cockrel No. 01-7662, 2003 WL

431659 (U.S. Feb. 25, 2003).

By the Court,

***signature***

Circuit Judge

_ Dated: April 29, 2003

CLC/CC:JPG,GSL,GJM

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A-3

ORIGINALLY FILED

JUN 27 2002

HON WILLIAM H. WALLS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JOSEPH P GALLUZZL

Petitioner,

V. OPINION

. Civ. No. 00-5952 (WHW)

UNITED STATES OF AMERICA, Crim. No. 96-640

Respondent.

Walls, District Judge

Petitioner Joseph P. Galluzzi (“Petitioner’’) petitions for a

writ of habeas corpus pursuant to 28 U.S.C. § 2255. Respondent,

the United States of America, opposes the petition. For the reasons

stated in this opinion, the petition is denied.

FACTS AND PROCEDURAL HISTORY

From 1982 to 1992, as a public official in Essex County, '

Petitioner received kickbacks and bribes for referring bond and

financing projects to various entities. Also in his official capacity,

Petitioner pushed for a $104 million Debt Restructuring Plan (the

“Restructuring Plan”) for Essex County. The government argues

that this Restructuring Plan cost the citizens of Essex County

millions of dollars. -

' Petitioner held the following positions: he was the financial consultant

to the Board of Chosen Freeholders. the legislative body of Essex County,

between 1982 and 1987; Treasurer of Essex County between 1987 and

July 1989; the financial consultant to Essex County between August 1989

and December 1990; and he was the financial consultant to the Irvington

Municipal Council between 1987 and June 1992.

A-4

On January 9, 1997, Petitioner was charged with

fourteen counts of mail fraud in violation of 18 U.S.C. §§

1341 and 1346 (Counts 1-8, 10-15); two counts of wire fraud

in violation of 18 U.S.C. §§ 1343 and 1346 (Counts 9, .16);

five counts of bribery in violation of 18 U.S.C. § 666 (Counts

17-21); and five counts of using a facility in interstate

commerce to commit bribery in violation of 18 U.S.C. § 1952

(Counts 22-26). Petitioner was convicted of all 26 counts of

the indictment in a jury trial before this Court. On the 9" and

10" of September, 1998, this Court held sentencing hearings

where both the government and the defense presented expert

witnesses on the issue of loss caused by the 1989 Refunding

Bond Deal. After the sentencing hearings, this Court found

that the Government had proven by a preponderance of the

evidence that the loss exceeded $5 million, warranting an

increase of 14 levels to the offense level. This Court also

determined that a 2-level increase for obstruction of justice

was warranted based upon testimony before the Securities

Exchange Commission (“SEC”). The final offense level was

therefore 28 with the corresponding sentencing range of 78-

97 months. In the Judgment and Conviction entered on

September 18, 1998, Petitioner was sentenced to 90 months

of incarceration on Counts 1-11 and 17-21, which were to be

served concurrently with 60 months of incarceration on

Counts 16 and 22-26; and 80 months on Counts 12-15.

On September 15, 1998, Petitioner filed a notice of

appeal to the United States Court of Appeals for the Third

Circuit arguing that (1) the evidence of guilt was legally

insufficient; (2) the district court erroneously admitted certain

evidence; (3) the prosecutors conduct in connection with a

civil proceeding was improper; (4) the Court should have

applied a heightened burden of proof when evaluating the

amount of loss; and (5) the Court’s findings regarding loss

and obstruction were not supported by the record. The

conviction and sentence were affirmed on May 28, 1999, and

oan a CT

: em SINNER Sea IB SAS os HOT: My Cinch te, Rha en see aman Bea a

Noes

- A-5

a petition to the United States Supreme Court for a writ of

certiorari was denied on December 6, 2000.

On December 6, 2000, Petitioner filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2255.

Petitioner alleges that (I) he was denied due process because

his sentence was unconstitutionally enhanced under the

standard set forth in Apprendi v New Jersey, 530 US 466,

120 S. Ct. 2348, 147 L.Ed.2d 435, (2000); (2) he was denied

due process because the Court did not require proof of loss

and obstruction beyond a reasonable doubt or by clear and

convincing evidence; and (3) he received ineffective

assistance of counsel.

DISCUSSION

1. Standard of Review

The grounds for collateral attack of a sentence

pursuant to § 2255 are narrowly limited. Kikumara v. U.S..,

987 F. Supp. 563, 574 (D.N.J. 1997). To be entitled to relief,

a habeas petitioner must establish that his sentence “was

imposed in violation of the Constitution or law of the United

States, or that the court was without jurisdiction to impose

such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to

collateral attack,” 28 U.S.C. § 2255. A §2255 motion is to he

granted only if the sentence resulted in a fundamental defect,

which inherently results in a complete miscarriage of justice

or an omission inconsistent with the rudimentary demands of

fair procedure. Kikumara, 987 F. Supp. at 574.

2. Analysis

A. Petitioner’s Sentence Was Not Unconstitutionally

Enhanced

A-6

Petitioner contends, based on Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435

(2000), that the district court deprived him of his due process

rights by enhancing his sentences on the basis of loss and

obstruction of justice, where the jury was not asked to decide

these issues. In Apprendi, the Supreme Court held “[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, 530 U.S. at 490. However, the Appendi

Court recognized that “nothing in history ...suggests that it is

impermissible for judges to exercise discretion, taking into

consideration various factors relating both to offense and

offender, in imposing judgement within the range prescribed

by statute.” United States v. Williams, 235 F.3d 858, 868 (3d

Cir. 2000) (quoting Apprendi 530 U.S. at 481). Apprendi is

not applicable to Petitioner’s situation because the penalty

imposed on Petitioner was within the statutory range.

As example, the Third Circuit in Williams, held

“{bjecause application of the Sentencing Guidelines in this

case does not implicate a fact that would increase the penalty

of a crime beyond the statutory maximum, the teachings of

Apprendi v. New Jersey (citation omitted) are not relevant

here” Id., at 863 (quoting United States v. Cepero, 224 F.3d

256, 267 n. 5 (3d. Cir. 2000)). In Williams, the sentence of

the defendant charged with conspiracy to distribute heroin

depended on the amount of drugs involved. The Third Circuit

held that the district court had the discretion to increase the

defendant’s sentence under the Sentencing Guidelines, based

on its findings because it did not exceed the statutory

maximum.

Here, as in Williams, Petitioner’s sentencing level

depended on the amount of money his acts of fraud and

bribery cost the government and citizens of Essex County.

The Sentencing Guidelines directs Courts to increase, the

re ae heli ARI ta OR. a A ah cabana? WA A a! Sa Se Sa BN hE + len 8

A-7

sentencing level by the corresponding number from the table

in §2F1 .1 (Fraud and Deceit), if the loss to the government

from the offense exceeded $2,000. U.S. Sentencing

Guidelines Manual §2C1.1(b)(2)(A) (1997). For a loss of

$5,000,000 or more the sentencing level is to be increased 14

levels. U.S. Sentencing Guidelines Manual §2F1.1(b)(1)(O)

(1997). Accordingly, the sentence of 90 months imposed on

defendant was within the statutory range and Apprendi is not

applicable.

Even assuming Apprendi were applicable to the facts

here, it should not he applied because it established a “new

rule” of constitutional law which may not he applied

retroactively. Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060,

103 L.Ed.2d 334 (1989). “A holding constitutes a ‘new rule’

within the meaning of Teague, if it ‘breaks new ground,’

‘imposes a new obligation on the States or the Federal

Government,’ or was not ‘dictated by precedent existing at

the time the defendants conviction became final.’” Graham v.

Collins, 506 U.S. 461, 467, 113 S. Ct, 892, 897 (1993)

(quoting Teague, 489 U.S., at 301) (emphasis in original).

The Supreme Court has set forth two exceptions when

the new rule should be retroactively applied. The first

exception is for new rules “forbidding criminal punishment

of certain primary conduct [and] rules prohibiting a certain

category of punishment for a class of defendants because of

their status or offense.” O’Dell v. Nethrland, 521 U.S. 151,

157, 117 S. Ct. 1969, 1973 (1997) (quoting Penry v.Lynaugh,

492 U.S. 302, 330, (1989)). The second exception “permits

retroactive application of ‘watershed les of criminal

procedure implicating the fundamental fairness and accuracy

of the criminal proceeding.’” O’Dell, 521 U.S. at 175,

(citations omitted), (quoting Teague, 489 U.S. at 311). The

Apprendi rule falls within the Teague description of a new

rule, and is inapplicable here because it does not fit one of the

two exceptions. See Levan v. U.S. 128 F. Supp. 2d 270, 278