Petition for Writ of Certiorari — Lopez v. United States

Ne”

supreme Court, U.S,

FILED

N 0.911430 423 2002

OFFICE OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

RAMON LOPEZ,

Petitioner.

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR CERTIORARI REVIEW

On Petition for Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RHONDA A. ANDERSON, ESQ.

RHONDA A. ANDERSON, P.A.

COUNSEL FOR RAMON LOPEZ

2222 PONCE DE LEON BLVD, SUITE 500

CORAL GABLES, FLORIDA 33134

TELEPHONE: (305) 444-1400

QUESTIONS PRESENTED FOR REVIEW

I. Whether, in light of this Court's ruling in Apprendi v. New

Jersey, 530 U.S. 466 (2000), the Petitioner’s initial 28

U.S.C. §

2255 was properly denied and the lower court erred

in refusing to issue a Certificate of Appealability where:

A

The Eleventh Circuit Court failed to acknowledge a

grievous and substantial constitutional violation

where the district court did not have jurisdiction to

sentence the Petitioner because he was sentenced to

life imprisonment for a crime to which he was not

charged by the grand jury and which was not

authorized by the verdict of the petit jury?

The rule in Apprendi that “any fact that increases

the penalty for a crime beyond the statutory

maximum, other than a prior conviction, must be

submitted to a jury and proved beyond a reasonable

doubt,” id. at 530 U.S. 466, is a substantive, rather

than procedural rule and, thus, is not subject to the

non-retroactivity doctrine of Teague v. Lane, 489

U.S. 288 (1989)?

The rule in Apprendi announced a new rule of

constitutional law which falls within the “watershed

exception” to the non-retroactivity doctrine of

Teague v. Lane, 489 U.S. 288, 311 (1989) and, thus,

may be raised on collateral review in an initial 28

U.S.C. § 2255 Motion?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..............

TABLE OF CITED AUTHORITIES ..... poe Cees

OPINIONS BELOW |. ois oven ocean ee

FURESOSCTION . .. <sdcuscuieee eee ee edad

CONSTITUTIONAL PROVISIONS

AND STATUTES. «.«.i«i0640208 55s eee eee ns

STATEMENT OF THE CARE ..4i55 0505s esau aeeweeees

INTRODUCTION | oc sc suk cease

ARGUMENT:

I. IN LIGHT OF THIS COURT’S RULING

IN APPRENDI V. NEW JERSEY, 530 U.S.

466 (2000), THE PETITIONER’S INITIAL

28 U.S.C. §2255 WAS IMPROVIDENTLY

DENIED AND THE LOWER COURT

ERRED IN REFUSING TO ISSUE A

CERTIFICATE OF APPEALABILITY

WHERE: «0. 60.0350

A. The Eleventh Circuit Court failed

to acknowledge a grievous and

substantial constitutional violation

where the district court did not

have jurisdiction to sentence the

Petitioner because he was

sentenced to life imprisonment for

a crime to which he was not

charged by the grand jury and

which was not authorized by the

verdict of the petitjury ............

B. The rule in Apprendi that “any

fact that increases the penalty fora

crime beyond the statutory

maximum, other than a_ prior

conviction, must be submitted to a

dit

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX ....

jury and proved beyond a

reasonable doubt,” id. at 530 U.S.

466, is a substantive, rather than

procedural rule and, thus, 1s not

subject to the non-retroactivity

doctrine of Teague v. Lane, 489

OF Roc. eee

The rule in Apprendi announced a

new rule of constitutional law

which falls within the “watershed

exception” to the non-retroactivity

doctrine of Teague v. Lane, 489

U.S. 288, 311 (1989) and, thus,

may be raised on collateral review

in an initial 28 U.S.C. § 2255

Pa nN Eee ek be

-iii-

24

TABLE OF CITATIONS

TABLE OF CASES:

Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348,

ee ee os bn 5.08 das vo bc 8 os sms passim

Bailey v. United States,

Sr a oe at ha wi aware haa ee 15

Bousley v. United States,

a Sk ewan wakenee nears 15,18

Darity v. United States,

124 F.Supp.2d 355 (W.D.N.C. 2000) .............. 15

Davis v. United States,

ae See EE ony -0bG keosb dour nee ss hone ne 17

Dukes v. United States,

poke TT) gg | | Een NDT any en 14

Ex Parte Bain,

Se Se OUT on co eka hae eee 13

Ex Parte Watkins,

3 pet. 193, 7 L.Ed. 650 (Marshal, C.J.)............. 14

Griffith v. Kentucky,

Se ee Ses tee Ae o aa Peed ene 21

Hill v. United States, :

es ee CE sos ok oe ba ee eee 14.17

Ingber v. Enzor,

Ee re, BE 5 vo oa oe he econenees 19

Johnson v. United States,

Re SN a acd daca essen eae. 10

Jones v. Smith,

ro R RR Grete. ae nr ener 15

Jones v. United States,

526 U.S. 277, 119 S.Ct. 1215,

7 pe 2 ee. eres reer passim

McCoy v. United States,

266 F.3d 1245 (11" Cir. 2001) .......... 9.10,11,14,23

atin

Neder v. United States,

SEF Oak BAEEOEE nv dnconsctoeseasenevecatawas 10,20

Olano vy. United States,

, gil ee Ferrer re rr emt rs 12

Reed v. Ross,

GUS. CAGE osc hc oth acnaseks Cenvan canes, i8

Richardson vy. United States,

7 Lik Bs, rere ere 15,16,17

Russell v. United States,

rp fit ®t, ere erry wire re 13,14

Saffle v. Parks,

ih Ot. | PPP Pree eeeCr Tre ore eT or ET 22

Santana-Madera v. United States,

260 F396 133-2 Cie. TOON) occ ic cicsene. ane 16,17

Sawyer v. Smith,

QF US, TET CIGD sna backhand dain dee nn Rta 22

Smith v. United States,

DOOD. LATGGOD ccc cvacca dtpietiee tear 1]

Stirone v. United States,

361 U.S. 212, 80 S.Ct. 270,

Pye Pes | errr rere rr yyy 13,14

Sullivan v. Louisiana,

SORTS, Fre Cte 5 vnc co awd ceketouv ena eees 11

Teague v. Lane,

SUS, FeCl occsctacnscaisr 1,111, 14,15,21,22,23

United States v. Addonizo,

PT gts By o! eee wer rere OER EREAT te i4

United States v. Bjorkman,

270 F.3d 482 (7" Cir. 2001) ........... Pree ree 10

United States v. Borja,

191 F.Supp. 563 (D.C. Guam 1961) ...........-.-. 11

United States v. Buckland,

y~ Dw RUE, gl ® |) rere es me

United States v. Clark,

DD F356 EE Cit, BOA nn os ccc vcsegec<ees 15.16

United States v. Cotton,

261 F.3d 397 (4" Cir.), cert. granted.

2002 WL 10623, 70 USLW 3348

(U.S. Jan. 04, 2002)(No. 01-687) ...........0..0... 12

United States v. Cross,

916 FOG GER CLIP Cle. 19BD on cc ccccscscsccncces 19

United States v. Fields,

an Pe ae es Ged é 6 bo es 6 ease 9

United States v. Gaudin,

Fes Wak Bee Clee acd cndbavevecceeen errr

United States v. Gonzalez,

259 F.3d 360 (5* Cir. 2001) ...............0008. 9,12

United States v. Hearne,

6 F.R.D. 294 (E.D. Wis. 1946) ................... 11

United States v. Hernandez,

137 F.Supp.2d 919 (N.D.Ohio 2001) . 2.2... ....... 15

United States v. Jackson,

2B P36 TA CO . kn cc Ces dade 12

United States v. Johnson,

G57 Ue Bar CHOGee sc accenctcccataureenee. 19

United States v. Martinez,

256 F SE SSS TCA BOOED kc cddundscknseentiee 10

United States v. Maynie,

257 C.SESSR UT Ge. ae). kicc cade cdesnceeea 12

United States v. Mojica-Baez,

229 F.3d 292 (1* Cir.), cert. denied,

vig is 00°) PR Pe err eo 10,20

United States v. Moss,

252 F.36 903 CE" Cle. BOOED cs co scicéccccuns 14.15.21

United States v. Norris,

BUS Us GER CERO 6 0 i6kebsensntasse tee 14

United States v. Sanders,

247 B.30 050 Ce. Ses co vnc ccc cccenseeee 15

United States v. Smith,

240 F.36 SAF CAA? Cle. BOTY vc dé cnn ceccccencas 19

United States v. Thomas,

274 F.36 66S 62 Cle: FS ook. dic kninssee ens 12

-Vi-

United States v. Timmerick,

rr cca sccdusdedcdwaneese es 14

United States v. Vazquez,

ee ee ED o's: ut ehuasecdsbecewas 10

United States v. Webb,

Bs es Gas OEE 06 0.0 60d ctedesessaKs 10

Ware v. United States,

124 F.Supp.2d 590 (M.D.Tenn. 2000) ............. 15

OTHER AUTHORITIES:

United States Constitution:

pS A a en rr Pre ee l

PE Ey pre es er re er ee oe re ee ee l

UNITED STATES CODE:

PARE ED axcndccdadncotssenbisccnegastcesnes inane

SRR ENUEED dé ccnscokeunnneceacancestsienecees 23

TENE ic nn tdanwh'snldnetoss Sesisdnd sebaceous 7

BE EE bch ckessecaceecdecsesivatodsan 11,13,19,22

Be ID Kn Sc ccccdchsnsconsnscansenaceaunetes 2

Fe Cs EE ba came ccc sccavestiacscccddecdacdens 6

Be EE bb dc deb ede cc cds cecaeseecs cecsesoees 2

RE BE bo ecb enceedasdeedéswsadesaeens 13

SE ED b hb nc cncivesnecciddvacodives ee

Ro ee Tere erT Teer TTT rere Tye T Te 5,6,8,13

yi hk a |” 6 Pre rrr rr errrrrerrrr rrr irre ey 17

, cis "ie | | ROT TTPTTTPTCTT TT TTT TirTr eye l

Pe rrr rrr res Tr eer i,1,7,9,19,21

RULES:

Rate WG: Bem. Ce NS oo ick Se Sea cisccccccccsnccess l

fy & UE fe | Ary rrr rr rrr rT errr ee 1!

-Vil-

PINIONS B Ww

The unpublished order denying the Petitioner’s motion for

certificate of appealability was entered on August 17, 2001. (Pet.

App. at 23). The Eleventh Circuit’s unpublished order denying

petitioner’s motion for reconsideration was entered October 25,

2001. (Pet. App. at 31).

The denial pf the Petitioner’s motion to vacate, set aside or

reduce his sentence filed pursuant to 28 U.S.C. § 2255.

JURISDICTION

The Order Denying Motion for Certificate of Appealability

of the United States Court of Appeals for the Eleventh was entered

on August 17, 2001. A timely Motion for Reconsideration of order

Denying Certificate of Appealability was filed on August 27, 2001,

and on October 25, 2001, the Eleventh Circuit entered an order

denying said Motion for Reconsideration. (Pet.App. at 23, 24-30, and

31). The jurisdiction of this Court to review a the judgment of the

Eleventh Circuit is conferred under Title 28 U.S.C. § 1254(1) and

Sup.Ct.Rule 10.

NSTITUTIONAL PROVISION TATUTES

U. S. Const., amend V

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger; nor

shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private property be

taken for public use, without just compensation.

U. S. Const. amend VI

In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State and

Me

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; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defence.

21 U.S.C. § 841(a) - Unlawful acts

Except as authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent

to manufacture, distribute, or dispense, a controlled substance: or

(2) to create, distribute, or dispense, or possess with intent to

distribute or dispense, a counterfeit substance.

21 U.S.C. § 841(b) - Penalties - (Excerpt)'

Except as otherwise provided in section 859, 860, or 861 of

this title, any person who violates subsection (a) of this section shall

be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this

section involving--

** *

(ii) 5 kilograms or more of a mixture or substance containing

a detectable amount of--

(I) coca leaves, except coca leaves and extracts of coca

leaves from which cocaine, ecgonine, and derivatives of ecgonine or

their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts

of isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts

of isomers; or

(IV) any compound, mixture, or preparation which contains

any quantity of any of the substances referred to in subclauses (1)

through (III);

(iii) 50 grams or more of a mixture or substance described in

clause (ii) which contains cocaine base;

* * *

' The excerpts include penalties for cocaine only.

-,

such person shall be sentenced to a term of imprisonment which may

not be less than 10 years or more than life and if death or serious

bodily injury results from the use of such substance shall be not less

than 20 years or more than life, a fine not to exceed the greater of

that authorized in accordance with the provisions of Title 18, or

$4,000,000 if the defendant is an individual or $10,000,000 if the

defendant is other than an individual, or both. If any person commits

such a violation after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of

imprisonment which may not be less than 20 years and not more than

life imprisonment and if death or serious bodily injury results from

the use of such substance shall be sentenced to life imprisonment, a

fine not to exceed the greater of twice that authorized in accordance

with the provisions of Title 18, or $8,000,000 if the defendant is an

individual or $20,000,000 if the defendant is other than an individual,

or both. If any person commits a violation of this subparagraph or of

section 849, 859, 860, or 861 of this title after two or more prior

convictions for a felony drug offense have become final, such person

shall be sentenced to a mandatory term of life imprisonment without

release and fined in accordance with the preceding sentence. Any

sentence under this subparagraph shall, in the absence of such a prior

conviction, impose a term of supervised release of at least 5 years in

addition to such term of imprisonment and shall, if there was such a

prior conviction, impose a term of supervised release of at least 10

years in addition to such term of imprisonment. Notwithstanding any

other provision of law, the court shall not place on probation or

suspend the sentence of any person sentenced under this

subparagraph. No person sentenced under this subparagraph shall be

eligible for parole during the term of imprisonment imposed therein.

(B) In the case of a violation of subsection (a) of this section

involving--

* * * -

(ii) 500 grams or more of a mixture or substance containing

a detectable amount of--

(I) coca leaves, except coca leaves and extracts of coca

leaves from which cocaine, ecgonine, and derivatives of ecgonine or

their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts

of isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts

of isomers; or

(IV) any compound, mixture, or preparation which contains

any quantity of any of the substances referred to in subclauses (I)

through (III);

(111) 5 grams or more of a mixture or substance described in

clause (ii) which contains cocaine base;

* * *

such person shall be sentenced to a term of imprisonment which may

not be less than 5 years and not more than 40 years and if death or

serious bodily injury results from the use of such substance shall be

not less than 20 years or more than life, a fine not to exceed the

greater of that authorized in accordance with the provisions of Title

18, or $2,000,000 if the defendant is an individual or $5,000,000 if

the defendant is other than an individual, or both. If any person

commits such a violation after a prior conviction for a felony drug

offense has become final, such person shall be sentenced to a term of

imprisonment which may not be less than 10 years and not more than

life imprisonment and if death or serious bodily injury results from

the use of such substance shall be sentenced to life imprisonment, a

fine not to exceed the greater of twice that authorized in accordance

with the provisions of Title 18, or $4,000,000 if the defendant is an

individual or $10,000,000 if the defendant is other than an individual,

or both. Any sentence imposed under this subparagraph shall, in the

absence of such a prior conviction, include a term of supervised

release of at least 4 years in addition to such term of imprisonment

and shall, if there was such a prior conviction, include a term of

supervised release of at least 8 years in addition to such term of

imprisonment. Notwithstanding any other provision of law, the court

shall not place on probation or suspend the sentence of any person

sentenced under this subparagraph. No person sentenced under this

subparagraph shall be eligible for parole during the term of

imprisonment imposed therein.

(C) In the case of a controlled substance in schedule I or II,

. . . except as provided in subparagraphs (A), (B), and (D), such

2

person shall be sentenced to a term of imprisonment of not more than

20 years and if death or serious bodily injury results from the use of

such substance shall be sentenced to a term of imprisonment of not

less than twenty years or more than life, a fine not to exceed the

greater of that authorized in accordance with the provisions of Title

18, or $1,000,000 if the defendant is an individual or $5,000,000 if

the defendant is other than an individual, or both. If any person

commits such a violation after a prior conviction for a felony drug

offense has become final, such person shall be sentenced to a term of

imprisonment of not more than 30 years and if death or serious

bodily injury results from the use of such substance shall be

sentenced to life imprisonment, a fine not to exceed the greater of

twice that authorized in accordance with the provisions of Title 18,

or $2,000,000 if the defendant is an individual or $10,000,000 if the

defendant is other than an individual, or both. Any sentence

imposing a term of imprisonment under this paragraph shall, in the

absence of such a prior conviction, impose a term of supervised

release of at least 3 years in addition to such term of imprisonment

and shall, if there was such a prior conviction, impose a term of

supervised release of at least 6 years in addition to such term of

imprisonment. Notwithstanding any other provision of law, the court

shall not place on probation or suspend the sentence of any person

sentenced under the provisions of this subparagraph which provide

for a mandatory term of imprisonment if death or serious bodily

injury results, nor shall a person so sentenced be — for parole

during the term of such a sentence.

21 U.S.C. § 846 - Attempt and Conspiracy

Any person who attempts or conspires to commit any offense defined

in this subchapter shall be subject to the same penalties as those

prescribed for the offense, the commission of which was the object

of the attempt or conspiracy.

IN THE

SUPREME COURT OF THE UNITED STATES

No.

RAMON LOPEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Ramon Lopez, Defendant and Appellant in the courts below,

respectfully petitions for a writ of certiorari to review the Order

Denying Motion for Certificate of Appealability of the United States

Court of Appeal for the Eleventh Circuit entered in this case on

August 17, 2001, and Order entered on October 25, 2001, denying

his Motion for Reconsideration of Order Denying Certificate of

Appealability. In his appeal to the Eleventh Circuit, Ramon Lopez

specifically argued that the quantity of drugs attributed to him

violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000) and/or Jones v. United States, 526 U.S.277, 119

S.Ct. 1215, 143 L.Ed.2d 311 (1999).(See, i.e., Pet. App. at 38-61).

STATEMENT OF THE CASE

On April 24, 1997, Ramon Lopez together with five co-

defendants, were indicted for conspiracy to possess with intent to

distribute cocaine in violation of 21 U.S.C. §846 in Count I, and

possession with intent to distribute cocaine in violation of 21 U.S.C.

§841(a)(1) and 18 U.S.C. §2 in Count II. The Indictment did not

specify that any specific quantity of cocaine, nor did the Government

request jury instructions or verdict forms that required the jury to

determine that element of the offenses charged. (91CR317-DE 1).

After a modified A//en charge was administered on the third

day of deliberations, the jury convicted Lopez on both counts, but

acquitted his co-defendants, Nancy Garcia and Orosco-Zapata’

(91CR317-DE 232,233,235).

The trial court sentenced Lopez to concurrent terms of life

imprisonment, to be followed by five years supervised release.

Further, pursuant to the Government’s notice of intent to seek t

sentencing enhancement under 18 U.S.C. §3147, the trial court

sentenced Lopez to a consecutive six month term of incarceration. [

(91CR317-DE-1,265). Lopez is presently incarcerated serving the

sentence imposed in this cause.

On April 24, 1997, Lopez filed a pro se motion to vacate,

reduce or set aside his sentence pursuant to 28 U.S.C. § 2255

(hereinafter “2255 motion”), raising, inter-alia, that Lopez was

denied effective assistance of trial counsel;’ in that trial counsel

failed to investigate and challenge charges in the indictment at pre-

trial and trial stages of the proceedings. (91-CR-317/97-CIV-1422-

DE-318 at p. 6).

Thereafter, Lopez retained counsel and on July 20, 1998,

Lopez filed a motion for leave to invoke discovery and/or expand the

record pursuant to Rules 6 and 7 of the Rules governing 2255

proceedings in order to obtain and introduce evidence within the |

Government’s possession and control of his first trial counsel’s

conflict of interest and ineffectiveness in failing to advise Lopez that

the government provided him a written plea agreement after Lopez

was debriefed. (91CR317-DE-345,346,350,351).

Without ruling on Lopez’ motion for leave to invoke

discovery and/or expand the record, on December 18, 1998, the

Magistrate Judge entered a Report and Recommendation denying

Lopez’ 2255 Motion, (DE-3), and Lopez filed a motion for

reconsideration of said Report and Recommendation. (91CR317-

DE-356).

*Three of the originally charged codefendants, Gerardo Machado, Redelio Garcia

and Luz Mary Del Pino, plead guilty. (91CR317-DE 192). However, at trial, two

of the three who plead guilty testified fur Lopez and one testified for the

Government. (91CR317-R5-396, R10-1089-90,1173).

Referred to in the Record as Claim V of Lopez’ 2255 Motion.

ms

|

The District Court then entered an Omnibus Order granting,

in part, Lopez’ motion for reconsideration, but denying his motions

for leave to invoke discovery and/or expand record, and to stay

pending ruling on disclosure of discovery in related matter.

(91CR317-DE-358). The order remanded Lopez’ ineffective

assistance of counsel claim* back to the Magistrate Judge for further

consideration. /d.

On June 21, 2000, the Magistrate Judge entered a

Supplemental Report and Recommendation denying Claim V of

Lopez’ 2255 Motion without an evidentiary hearing, to which Lopez

filed written objections. (91CR317-DE-380,384,387). The District

Court then entered an Order summarily denying the written

objections. (91CR317-DE-388). Thereafter, Lopez moved for leave°

to file a motion for reconsideration and further supplement his 2255

Motion with an Apprendi claim. Those requests were likewise

summarily denied. (91CR317-DE-389-90). Thereafter, this appeal

ensued, and the District Court denied Lopez’ a Certificate of

Appealability. (91CR317-DE-391).

INTRODUCTION

The Petitioner in this case, Mr. Lopez (hereinafter referred

to as “Petitioner” or “Mr. Lopez”) is presently serving a life sentence

for conspiracy to possess with intent to distribute cocaine, in

violation of 21 U.S.C. § 846, and possession with intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a)(1), where neither the

indictment charged nor the jury instructions required the jury to find

any quantity of drugs. As a result, the statutory maximum sentence

under the charging statute is 20 years. Accordingly, the life sentence

imposed in the instant case violates the Constitution. If this sentence

is left in place, Mr. Lopez will serve untold years in prison, beyond

that authorized by the charging statute and the jury’s verdict.

Petitioner states that such an outcome, violative of his Due Process

rights, should not stand. The issue squarely before the Court is

whether such a grievous unconstitutional outcome will be addressed

on the merits and corrected, or whether it will be permitted to stand

‘Referred to in the Record as Claim V of Lopez’ 2255 Motion.

*The Clerk had sent the Order to the undersigned’s previous address. Therefore,

the Order was not received within 10 days of its entry, and leave was accordingly

sought.

-8-

on conflicting procedural interpretations regarding collateral review

and procedural default doctrines.

ARGUMENT

I. IN. LIGHT OF THIS COURT’S RULING IN

APPRENDI V. NEW JERSEY, 530 U.S. 466 (2000), THE

PETITIONER’S INITIAL 28 U.S.C. § 2255 WAS

IMPROVIDENTLY DENIED AND THE LOWER

COURT ERRED IN REFUSING TO ISSUE A

CERTIFICATE OF APPEALABILITY WHERE:

A. The Eleventh Circuit Court failed to

acknowledge a_ grievous and _ substantial

constitutional violation where the district court

did not have jurisdiction to sentence the

Petitioner because he was sentenced to life

imprisonment for a crime to which he was not

charged by the grand jury and which was not

authorized by the verdict of the petit jury.

The Eleventh Circuit’s held in McCoy v. United States, 266

F.3d 1245, 1249 (11 Cir. 2001), that Apprendi errors are not

jurisdictional and are subject to plain error review where the

sentence will not be disturbed where the court deems the evidence of

drug quantities adduced at trial sufficient to support the sentence

imposed even if such evidence was neither charged in the indictment,

nor submitted to the jury for a beyond a reasonable doubt

determination. Such a ruling directly conflicts with the Fifth

Circuit’s holding in United States v. Gonzalez, 259 F.3d 355 (5" Cir.

2001), that “the district court lacks the jurisdiction to impose a

sentence exceeding the statutory maximum of the offense alleged in

the indictment...” /d. at 360-61, n. 3. Moreover, the split in the

Courts on this issue extend well beyond the Fifth and Eleventh

Circuits. The District of Columbia, First, Third and Seventh Circuit

Courts have generally followed the Eleventh Circuit in holding that

there is no jurisdictional defect in trying and sentencing a defendant

based on quantities of drugs neither alleged in the indictment, nor

submitted to the jury because the federal courts retain subject matter

jurisdiction to hear a case once an indictment is returned by the grand

jury. See United States v. Fields, 242 F.3d 393 (D.C. Cir.), aff'd and

amended on reh’g, 251 F.3d 1041 (D.C. (Cir. 2001)(the court

.

remanded where the evidence “as to quantity was not so

overwhelming”). 251 F.3d 1045. Ina later case, however, the court,

applying the analysis of Johnson v. United States, 520 U.S. 461

(1997), declined to grant relief because the evidence of drug quantity

was overwhelming and had not been contested at trial or sentencing.

United States v. Webb, 255 F.3d 890, 900-01 (D.C. Cir. 2001). See

also United States v. Mojica-Baez, 229 F.3d 292 (1" Cir.), cert.

denied, 121 S.Ct. 2215 (2001)(concluding that failure of grand jury

to charge an element of the offense is not a structural error), id. at

311; United States v. Vasquez, 271 F.3d 93 (3 Cir. 2001)(citing

Neder and rejecting the contention that Apprendi error should be

treated as structural. /d. at 103, denied relief based on the evidence

of quantity adduced at trial. /d. at 104); United States v. Bjorkman,

270 F.3d 482 (7" Cir. 2001)(rejected argument that, where the

indictment did not charge quantity, the district court lacked subject

matter jurisdiction). /d. at 490.

Applying a plain error standard of review, these Circuits

have generally held that failure to charge quantity in the indictment

is not a jurisdictional defect, and that such error is subject to plain

error review where the sentence will not be overturned when the

evidence as to quantity adduced at trial is “overwhelming” or

“whether the evidence was sufficiently conclusive to support the

sentence actually imposed.” The Eleventh Circuit, feeling itself

constrained to follow Neder v. United States, 527 U.S. 1 (1999),°

joined with the First and Seventh Circuit Courts to arrive at the

conclusion that an appellate court can be confident in retrospect that

a grand jury would have returned an indictment charging the requisite

quantity whenever the trial evidence was so strong that the petit jury

would have been bound to reach the same conclusion. See McCoy at

1251, quoting United States v. Martinez, 258 F.3d 582, 587 (7" Cir.

2001). In doing so, these lower courts have impermissibly replaced

all Constitutionally required triers of fact with their pure speculation

“Erroneous jury instructions that omit element of the offense is subject

to harmless error analysis. Neder 527 U.S. at 10.

-10-

EE ee ee 2 ee eee eee

concerning a hypothetical jury’s actions.’

In McCoy, the Eleventh Circuit came to the conclusion that

Apprendi error based upon an indictment that does not notice an

element of the offense (such as drug quantity in the §841 context) is

not jurisdictional in nature. The Court reached that conclusion based

upon the following analogy:

[t]he constitutional right to be charged by a grand

jury is a personal right of the defendant and does not

go to the district court’s subject matter jurisdiction

because it may be waived. See Fed.R.Crim.P. 7(b).

Thus, the constitutional right to be charged by a

grand jury indictment simply does not fit the mold

of a jurisdictional defect, because it is a right that

can be waived.

Id. at 1249.

The opinion neglects to mention that when a defendant

waives indictment, it is replaced with an information which serves,

at the very least, as legally sufficient notice to the defendant of the

charges which he must face and their penalties, and preserves a

defendant’s right to challenge jurisdictional defects See, United

States v. Borja, 191 F.Supp. 563 (D.C. Guam 1961); and United

States v. Hearne, 6 F.R.D. 294 (E.D. Wis. 1946). Therefore, it is

axiomatic that requiring neither an indictment, nor an information

would constitute a structural error of the highest degree -- particularly

in the sentencing context. Further, merely retaining subject matter

jurisdiction to try the case does not mean that the district court

retains jurisdiction to sentence the defendant when such a sentence

"See Smith v. United States, 360 U.S. 1, 9 (1959)(“the substantial

safeguards to those charged with serious crimes cannot be eradicated under the

guise of technical departures from the rules”). See also Sullivan v. Louisiana,

508 U.S. 275, 310 (1993)(finding that where an instructional error consists of a

misdescription of the burden of proof, “a reviewing court can only engage in pure

speculation [regarding] what a reasonable jury would have done. And when it

does that, ‘the wrong entity judge[s] the defendant guilty’), internal citations

omitted, Sullivan v. Louisiana, 508 U.S. 275, 280 (1993)(in a case finding that

defective reasonable doubt instructions to the jury constituted structural error, this

Court held that “[t]he Sixth Amendment requires more than appellate speculation

about a hypothetical jury’s action...”). |

hts

would be based on charges not stated in the indictment or the

information (if the indictment were waived), nor authorized by the

jury’s verdict. See Gonzalez, 259 F.3d at 360-61.

The Second, Fourth, Fifth, Sixth, Eighth, Ninth and Tenth

Circuits, on the other hand, have generally recognized the

jurisdictional defect inherent in indictments which do not specify

quantity, and the concomitant prohibition on sentencing the —

defendant for an offense greater than that charged by the grand jury.

These Circuits have not explicitly ruled that it is a jurisdictional

defect, but after applying the plain error factors prescribed in Olano

v. United States, 507 U.S. 725 (1993), have held that such is per se

reversible error. Petitioner respectfully suggests that such is the only

correct result consistent with the Fifth Amendment grand jury

guarantee. See United States v. Thomas, 274 F.3d 655, 672 (2™ Cir.

2001), en banc, (finding error in sentencing where the district court

imposed a sentence it had no authority to impose; and finding error

in conviction of a defendant for a crime different than the crime

charged in the indictment). See also United States v. Cotton, 261

F.3d 397, 403-07 (4" Cir.), cert. granted, — S.Ct. —, 2002 WL 10623,

70 USLW 3348 (U.S. Jan. 04, 2002)(No. 01-687)(concluding that,

where quantity is not charged in the indictment, the defect inherent

in sentencing a defendant for a crime with which he was not charged

is so fundamental as to always require correction under the plain

error standard, no matter how strong the quantity evidence at trial);

United States v. Gonzalez, 259 F.3d 355, 360-61, n. 3 (5™ Cir.

2001)(noticing jurisdictional nature of Apprendi error in the

indictment and sentencing context); United States v. Maynie, 257

F.3d 908, 921 (8" Cir. 2001)(finding Apprendi error because “a

judge lacks the authority to sentence a defendant to an uncharged

crime”); United States v. Buckland, 259 F.3d 1157, 1163-68 (9"

cir.), reh’g en banc granted, 265 F.3d 1085 (9" Cir.)(finding 21

U.S.C. § 841 facially unconstitutional because of the “structure of the

statute itself’ combined with its legislative history); and, United

States v. Jackson, 240 F.3d 1245, 1248-49 (10" Cir.), cert. denied,

122 S.Ct. 112 (2001)(holding that Apprendi error, where the greater

offense is not charged in the indictment, requires resentencing on the

lesser offense, without harmless or plain error review, as such

«12.

sentences are “unauthorized”).

The applicability of Apprendi to the instant case is clear.

The counts upon which Mr. Lopez was found guilty did not

reference any amount of cocaine. No drug quantity was alleged in

the indictment. Not one overt act listed any quantity of drugs.

Moreover, the issue of quantity of drugs was never submitted to the

jury. In the 21 U.S.C. § 841 context, where the quantity of drugs is

not charged in the indictment, a defendant has not been charged with

a crime punishable under § 841(b)(1)(B). It follows, therefore, that

Mr. Lopez may not be consistently be sentenced to more than the

maximum of 20 years provided in the default provisions of §

841(b)(1C) which does not require any particular amount of

controlled substance to be charged of proven. Where the indictment

alleges only the lesser offense, sentencing Mr. Lopez for the

uncharged, greater offenses, was effectively a constructive

amendment of the indictment, which under Ex Parte Bain, 121 U.S.

1 (1887)*, Stirone v. United States, 361 U.S. 212 (1960)’, and

Russell v. United States, 369 U.S. 749 (1960)"° is forbidden.'' Mr.

"The failure of the Grand Jury to charge the defendant with the elements

of an offense is a jurisdictional bar to prosecution for that offense which has been

settled by this Court since its decision in Bain: an indictment found by the grand

jury is “indispensable to the power of the court to try the petitioner for the crime

with which he is charged.” /d. 121 U.S. at 12.

*This Court explicitly reaffirmed Bain in Stirone, explaining that the

very purpose of the Fifth Amendment grand jury clause was to limit a defendant's

“jeopardy to offenses charged by a group of his fellow citizens acting

independently of either the prosecuting attorney or judge.” /d. at 218. Here, the

Court concluded that the deprivation of the defendant's “substantial right to be

tried only on charges presented in an indictment returned by a grand jury...is far

too serious to be...dismissed as harmless error.” /d. at 217.

"The principle of Bain and Stirone—that an indictment charging all of

the essential elements is a prerequisite to conviction for that offense—was again

reaffirmed in Russell at 764-65 (“an indictment upon a statute, it is not sufficient

to set forth the offense in the words of the statute, unless those words of

themselves fully, directly, and expressly, without any uncertainty or ambiguity,

set forth all the elements necessary to constitute the offense to be punished,”),

internal citations omitted; emphasis added.. This principle was reaffirmed in

Apprendi itself: “(t}he judge's role in sentencing is constrained at its outer limits

-13-

enerreenstttiecineaiiiiiiiiiiiaiiaieiiiailias

Lopez was therefore sentenced to life imprisonment on these counts

in violation of the due process and grand jury clauses of the Fifth

Amendment and of the jury trial guarantee of the Sixth Amendment.

These constitutional violations require vacating Mr. Lopez’ sentence

without a showing of prejudice. See Stirone at 217.

This issue is of grave import to the Petitioner because the

district court lacked jurisdiction to impose a sentence for a crime for

which was not charged, and, inasmuch as lack of jurisdiction can be

raised at any time'’, then this Court need not reach any other issue.

B. THE RULE IN APPRENDI THAT “ANY FACT THAT INCREASES

THE PENALTY FOR A CRIME BEYOND THE STATUTORY

MAXIMUM, OTHER THAN A PRIOR CONVICTION, MUST BE

SUBMITTED TO A JURY AND PROVED BEYOND A

REASONABLE DOUBT, /D. AT 530 U.S. 466, IS A

SUBSTANTIVE, RATHER THAN PROCEDURAL RULE AND,

THUS, IS NOT SUBJECT TO THE NON-RETROACTIVITY

DOCTRINE OF TEAGUE V. LANE, 489 U.S. 288 (1989).

Whether the Teague doctrine on retroactivity applies to bar

Petitioner’s Apprendi claim is a matter not yet address by the

majority of the Circuit Courts. Those that have reached this issue

have held that retroactive application of Apprendi is barred by

Teague. See McCoy v. United States, 266 F.3d 1245 (11" Cir.

2001)(10 year sentence); Dukes v. United States, 255 F.3d 912 (8"

Cir. 2001)(life sentence); United States v. Moss, 252 F.3d 993, 997

by the facts alleged in the indictment and found by the jury.” /d. 530 U.S. at 483,

n. 10.

"It is a “well settled rule in the federal courts that an indictment may

not be amended except by resubmission to the grand jury, unless the change is

merely a matter of form.” Russell v. United States, 369 U.S. 749, 770 (1962),

citing Bain at 10, United States v. Norris, 28\ U.S. 619, 622 (1930) , and

Stirone at 218.

"See United States v. Timmerick, 44\ U.S. 780, 783

(1979\acknowledging fundamental nature of jurisdictional error which can be

raised on collateral review). Citing Hill v. United States, 368 U.S. 424 (1962).

See also United States v. Addonizo, 444 U.S. 178, 185 (1979)(same), citing, Ex

Parte Watkins, 3 Pet. 193, 202-203, 7 L.Ed. 650 (Marshal, C.J.).

-14-

(8 Cir. 2001)(360 month sentence); United States v. Sanders, 247

F.3d 139, 147 (4" Cir. 2001)(188 month sentence); and Jones v.

Smith, 231 F.3d 1227, 1236 (9" Cir. 2000)(life sentence). The

threshold, inquiry, therefore, is whether the rule annunciated in

Apprendi is substantive or procedural. See Bousley v. United States,

523 U.S. 614, 620-21 (1998)(holding that substantive rules are

automatically applied retroactively, procedural rules generally are

not).

Few courts that have addressed the retroactivity of Apprendi

have considered whether the rule is substantive or procedural. See

United States v. Clark, 260 F.3d 382 (5" Cir. 2001)(Parker, J.,

dissenting)(in a case where the district court remanded for further

consideration, Judge Parker opined that Aprendi announces a new

substantive rule, and that Teague’s prohibition against retroactivity

does not apply. He further stated that the matter should not be

remanded, because the court could directly address the underlying

claims without further delay. Judge Parker based his conclusion on

the prior precedent retroactively applying Richardson v. United

States, 526 U.S. 813, (1999) and Bailey v. United States, 516 U.S.

137 (1995), and ‘the risk that a person may be subjected to the

maximum term of ten years to life imprisonment while being

“actually innocent” of a sentencing enhancement while guilty of the

underlying offense). /d. at 383-389. See also United States v.

Hernandez, 137 F.Supp.2d 919, 928-29 (N.D.Ohio 2001); Darity v.

United States, 124 F.Supp.2d 355, 360-61 (W.D.N.C. 2000),

overruled by United States v. Sanders, 247 F.3d 139 (4" Cir. 2001);

Ware v. United States, 124 F Supp.2d 590, 595-96 (M.D.Tenn. 2000)

Most courts, centering on the majority’s statement in

Apprendi that “[t}]he substantive basis for New Jersey’s enhancement

is thus not an issue; the adequacy of New Jersey’s procedure is,”

Apprendi 530 U.S. at 475, have summarily concluded that the rule is

procedural and have analyzed Apprendi using the Teague framework

and its two exceptions. See ante. Most significantly, however, the

Teague analysis does not apply to substantive rules, such as those

construing the meaning of federal criminal statutes. See Bousley,

523 U.S. at 620 ([B]ecause Teague by its terms applies only to

procedural rules, we think it is inapplicable to the situation in which

04.

this Court decides the meaning of a criminal statute enacted by

Congress”). Petitioner therefore submits that the primary feature of

the new rule is its substantive construction of federal criminal

statutes and that the rule is therefore retroactive.

As the Clark dissent points out, the procedural part of the

Apprendi rule — that a criminal defendant is entitled to “a jury

determination that [he] is guilty of every element of the crime with

which he is charged, beyond a reasonable doubt,” Apprendi, 530

U.S. at 477 (alteration in original)(quoting United States v. Gaudin,

515 U.S. 506, 510 (1995)) — is not new: it is merely a recitation of

the procedural guarantees contained in the Fifth, Sixth, and

Fourteenth Amendments. Clark at 386. The new part of the

Apprendi rule, however, is the Supreme Court’s application of this

long-recognized constitutional principle. By holding that any fact

that increases the maximum punishment for an offense must be

submitted to a jury and proven beyond reasonable doubt, this Court

added substantive elements to every criminal statute purporting to

allow a judge acting alone to impose punishment in excess of the

statutory maximum. /d. The Court explained in Apprendi that a

sentencing factor that increases the maximum punishment for an

offense is the “functional equivalent of an element of a greater

offense than the one covered by the jury’s verdict. Indeed, it fits

squarely within the usual definition of an ‘element’ of the offense.”

Apprendi, 530 U.S. at 494, n. 19. Since the Apprendi rule interprets

the meaning of a multitude of criminal statutes, including the statutes

at issue here, Petitioner believes it is a substantive rule of law

retroactively applicable to cases on collateral review.

This result would be consistent with the Second Circuit’s

recent decision in Santana-Madera v. United States, 260 F.3d 133

(2 Cir. 2001),'* that the new rule announced by the Supreme Court

in Richardson v. United States, 526 U.S. 813 (1999), is substantive

and therefore retroactive. Prior to Richardson, a jury deciding

whether a defendant had engaged in a continuing criminal enterprise

'3 Santana-Madera did expressly not reach the issue of whether or not

Apprendi could be retroactively applied, leaving that “for another day.” /d. at

135.

-16-

(“CCE”) in violation of 21 U.S.C. § 848 was required to

unanimously agree that the defendant committed at least three federal

narcotics violations, but it was not required to agree as to which

specific violations constituted the offense. Santana-Madera at 136.

In Richardson, this Court found such a practice to be

unconstitutional, holding that each of the violations making up the

series was a separate element of the CCE offense that must be

unanimously agreed upon by the jury. Richardson, 526 U.S. at 818-

19, 824. The Second Circuit concluded in Santana-Madera that

because Richardson “interpreted a federal criminal statute and, in

doing so, changed the elements of the CCE offense” it “alter[ed] the

meaning of the substantive criminal law,” and was therefore

retroactively applicable on collateral review. Santana-Madera at

138. Because it was implicit in the jury’s verdict in Santana-

Madera that the jurors agreed that the defendant was guilty of at

least three narcotics violations, the issue was not whetber the

’ defendant had potentially been convicted of conduct which was not

legal, but rather, whether each member of the jury had the same

series of violations in mind when they voted to convict. As a result,

the Second Circuit’s determination that the Richardson rule is

substantive conforms with Petitioner’s view that decriminalization

of conduct is not an essential characteristic of a “substantive” rule.

Moreover, this appears to be the correct result under Davis

v. United States, 417 U.S. 333 (1974), which first established the

principle that a substantive change in the law is applicable to cases

on collateral review. There is nothing in Davis that expressly limits

substantive rules to those rules that decriminalize conduct previously

thought to be illegal. Applying Davis, the appropriate inquiry is not

whether the new rule decriminalizes conduct, but rather, whether the

error of law sought to be raised is “a fundamental defect which

inherently results in a complete miscarriage of justice,” and whether

[i]t present[s] exceptional circumstances where the need for remedy

afforded by the writ of habeas corpus is apparent.” Davis, 417 U.S.

at 346 (alteration in original)(quoting Hill v. United States, 368 U.S.

424, 428 (1962)).

In the case at bar, Mr. Lopez is the victim of a genuine

Apprendi error and, thus, meets the Davis test. The unconstitutional

iy

length of his life imprisonment rests on a purely judicial finding

made using the lowest standard of proof known to our judicial

system. Accordingly, Petitioner has been deprived of his liberty

without the benefits of the heightened protections that are the

hallmarks of American jurisprudence. While the lower courts may

view legitimate Apprendi claims as rare, the flood of, perhaps,

unmeritorious claims does not alter the fact that Apprendi represents

substantive change in the law that is retroactively applicable on

collateral review. ;

Although the Petitioner has shown that he is entitled to the

benefit of the Apprendi rule on collateral review, he must also show

both cause for failure to raise the issue on direct appeal, and actual

prejudice resulting therefrom. Bousley v. United States, 523 U.S.

614, 622 (1998).

Cause:

Petitioner has established cause sufficient to excuse his

failure to raise the Apprendi issue on direct appeal under the rule of

Reed v. Ross, 468 U.S. 1 (1984). In Reed, this Court held that the

novelty of a constitutional claim can constitute cause for failure to

raise it on direct review if the claim’s “legal basis [was] not

reasonably viable to counsel.” /d. at 16. To hold otherwise, this

Court stated, would disrupt criminal proceedings by “encouraging

defense counsel to include any and all remotely plausible

constitutional claims that could, some day, gain recognition.” /d. at

15-16. This Court further stated that when it articulates a

constitutional principle which:

‘overturns . longstanding and

widespread practice to which this

Court has not spoken, but which a

near-unanimous body of lower

court authority has _ expressly

approved...’ there will almost

certainly have been no reasonable

basis upon which an attorney

previously could have urged a

[lower] court to adopt the position

that this Court has_ ultimately

-18-

adopted. Consequently, the failure

of a defendant’s attorney to have

pressed such a claim before a

[lower] court is sufficiently

excusable to satisfy the cause

requirement.

Id. at 17, quoting, United States v. Johnson, 457 U.S. 537, 551

(1982). Accord Ingber v. Enzor, 841 F.2d 450, 454-55 (2™ Cir.

1988)(penalizing a § 2255 petitioner for failing to challenge a decade

of entrenched precedent on direct appeal would “ascribe to

attomeys...the power to prognosticate with greater precision than

judges of this court” and would “encourage appeal of even well-

settled points of law”).

Such is the situation presented in the instant case. Prior to

Apprendi, all twelve circuit courts had specifically rejected the

argument that drug quantity was an element of the offense under 21

U.S.C. § 841. To now penalize Petitioner for failing to raise an

Apprendi claim on appeal when that argument had been foreclosed

by the Eleventh Circuit'* (and every other court in the country) would

be unjust and produce an undesirable result. As this Court noted in

Reed, such a policy would thwart judicial economy in criminal

proceedings. Defense lawyers would have to choose between raising

every remotely conceivable constitutional claim at trial and on

appeal, including those precluded by binding precedent, or being

subjected to claims for malpractice and ineffective assistance of

counsel in the event this Court eventually recognizes a right that

might have benefitted their client had they anticipated it long

before.'* Accordingly, inasmuch as the Petitioner was foreclosed by

‘“See United States v. Cross, 916 F.2d 622, 623 (11" Cir. 1990).

'‘One can also envision appellate and post-conviction counsel running

afoul of court proscriptions by filing what could be considered as frivolous

arguments against binding precedent. See Fed.R.Civ.P. 1 1(e). See also United

States v. Smith, 250 F.3d 1073 (7® Cir. 2001), Wood, J., dissenting

(“fear[ing]}...administrative nightmare...[as] defense counsel will have no choice

but to file one ‘kitchen sink’ brief after another” to avoid “a procedural default

that cannot be overcome for good cause.”). /d. atl077

-19-

firmly entrenched precedent from raising the Apprendi issue on

direct appeal, he has demonstrated cause sufficient to excuse his

failure to raise the issue on direct appeal.

Mr. Lopez is serving a term of life imprisonment based upon

an indictment that omitted an essential element of the offense with

which he was charged and which the jury verdict did not authorize.

Thus, in the instant case, a quintessential jurisdictional error

occurred. As Judge Arnold’s well-reasoned dissent in United States

v. Moss, 252 F.3d 992 (8" Cir. 2001) so aptly stated when calling

into doubt the majority’s opinion:

The Supreme Court in Neder ».

United States, 527 US. 1, 8-

9...(1989), has held that it is not

always reversible error to fail to

submit to a jury an essential

element of a criminal offense. If,

for example, no reasonable jury

could have found against the

prosecution with respect to this

element, the error can be treated as

harmless. The same thing,

however, cannot be said of the

other part of the Apprendi principle

— that every element of a crime

must be charged in an indictment

(if the crime is federal). As far as /

am aware, no case has ever held

that the omission of an element of a

crime from an indictment can be

harmless error. In such cases, we

do not ask whether a jury would

have found that element on the

evidence submitted to it, or, indeed,

whether the grand jury would have

returned an indictment including

that element if it had been asked to

do so. Rather, an indictment.that

-20-

omits an element of a crime is

structurally deficient and provides

no lawful basis for bringing anyone

to_ trial. Failure _to include an

essential in a federal indictment

warrants__relief even if the

government later proves the

omitted element at trial.

Moss, 252 F.3d at 1005. (Internal citation omitted). (Emphasis

added).

If, under these circumstances, Petitioner’s life sentence does

not constitute significant prejudice, he respectfully submits that such

a prejudicial threshold is “beyond the pale” in current American

jurisprudence.

eA THE RULE IN APPRENDI ANNOUNCED A NEW RULE OF

CONSTITUTIONAL LAW WHICH FALLS WITHIN THE

“WATERSHED EXCEPTION” TO THE NON-RETROACTIVITY

DOCTRINE OF TEAGUE V. LANE, 489 U.S. 288, 311 (1989)

AND, THUS, MAY BE RAISED ON COLLATERAL REVIEW IN AN

INITIAL 28 U.S.C. § 2255 MOTION.

Alternative, Mr. Lopez submits that the new rule of law

announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), that

“any fact that increases the penalty for a crime beyond the statutory

maximum, other than a prior conviction, must be submitted to the

jury and proved beyond a reasonable doubt” [id.], falls within the

“watershed exception” to the non-retroactivity doctrine of Teague v.

Lane, 489 U.S. 288 at 311 (1989). The applicability of Apprendi to

drug cases raises the question of whether the courts must

retroactively apply the new rule to similarly situated defendants who,

like the Petitioner, have submitted this issue on an initial Title 28

U.S.C. § 2255 Motion To Vacate, Correct or Set Aside an Illegal

Conviction and/or Sentence.

Generally, new constitutional rules of criminal procedure

apply retroactively only to cases which are on direct state or federal

appeal at the time the rule is announced. See Griffith v. Kentucky,

479 U.S. 314 (1987). Anew rule is not to be applied retroactively on

collateral review unless the rule falls within one of two narrow

at.

—

exceptions: (1) the new rule places certain kinds of primary conduct

beyond the power of the criminal lawmaking authority to proscribe,

or (2) the rule requires the observance of “those procedures that...are

‘implicit in the concept of ordered liberty.’” Teague, 489 U.S. at

305-310 (citations omitted). The first exception to the general rule

prohibiting retroactivity applies only to rules that decriminalize a

class of conduct or prohibit certain category of punishment for a

class of defendants because of their status or offense. See Saffle v.

Parks, 494 U.S. 484, 495 (1990). Petitioner concedes this exception

is inapplicable to the instant case. However, the Apprendi decision

does implicate the second exception, which applies to those

“watershed rules of criminal procedure” which “alter our

understanding of the bedrock procedural elements essential to the

fairness of a proceeding” and “without which the likelihood of an

accurate conviction is seriously diminished.” Sawyer v. Smith, 497

U.S. 227, 242-244 (1990), quoting Teague, 489 U.S. at 311, 315.

The Court in Apprendi concluded that the Constitution requires a

jury finding on any fact which increases the statutory maximum

penalty. This conclusion compels a radical shift in criminal

procedure in federal cases.'° Such a sweeping new requirement is so

grounded in fundamental fairness that it may be considered of

“watershed importance.” $

Apprendi raises the standard for determining elements that

subject a criminal defendant to a higher term of imprisonment from

a preponderance of the evidence to beyond a reasonable doubt.

Apprendi requires such elements to be determined by a jury, thereby

enforcing a defendant’s right to trial by jury on such issues.

Moreover, the requirement that every element of a crime, defined as

every fact that increases the statutory maximum, be charged in the

indictment improves the accuracy of the fact-finding process because

it reduces the risk that an innocent person might be convicted of a

more serious crime, or that a guilty person might be punished more

severely than the law allows. Indeed, in Apprendi this Court stated

*As noted in §B, supra, prior to this Court’s Apprendi ruling, all

twelve circuit courts had specifically rejected the argument that drug quantity was

an element of the offense under 21 U.S.C. § 841.

a.

‘[a]t stake in this case are constitutional protections of surpassing

importance: the proscription of any deprivation of liberty without

‘due process of law,’ Amdt. 14, and the guarantee that ‘[iJn all

criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial by an impartial jury,’ Amdt. 6.” Apprendi 530 U.S.

at 476-477. Most significantly, four justices almost explicitly

endorsed a Teague exception for Apprendi claims in their reading of

the majority opinion by stating “[t]oday, in what will surely be

remembered as a watershed change in constitutional law, the Court

imposes as a constitutional rule the principle it first identified in

Jones.”'’ — Apprendi, 530 U.S. at 524 (O'Connor, J.,

dissenting)(emphasis added). | Adecision, such as Apprendi, which

overturned well-settled precedent in all twelve circuit courts, can

hardly be considered as non-substantive or usual. Indeed, the

Eleventh Circuit’s unconstitutional hurdle, as established in McCoy,

barring defendants from collaterally attacking sentences and

conviction arrived at in an unconstitutional manner, has created a

split within the circuits for those who, like the Petitioner herein,

raised their Apprendi claims in § 2255 motions. Thus, it is time for

this Court to resolve the Circuit conflicts and address the

retroactivity of Apprendi:for defendants raising same on collateral

review.

"In Jones v. United States, 526 U.S. 277 (1999), this Court first identified

the principle that “any fact (other than a prior conviction) that increases the

maximum penalty for a crime must be charged in the indictment, submitted to the

jury, and proven beyond a reasonable doubt.” /d. U.S. at 243, n. 6. The Court held

that serious bodily injury under the federal car-jacking statute, see 18 U.S.C. §

2119(2), isan element of the offense, not a sentencing factor, which must be charged

in an indictment and submitted to the jury. /d. at 251-252.

23.

CONCLUSION

For the reasons stated above, Petitioner respectfully requests

that this Court grant certiorari, review herein.

RHONDA A. ANDERSON, ESQ.

2222 Ponce De Leon Boulevard, Suite 500

Coral Gables, Florida 33134

Florida Bar No. 708038

Tele: (305) 444-1400, Fax: (305) 444-1487

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and exact copy of the

foregoing was mailed via Express Mail, this 23"¢ day of January,

2002, to:Susan Ponzoli, ge United States Attorney, Appellate

Division, 99 Northeast Fourth Street, Miami, Flori 132, and

Solicitor General, Department of Justice, 19% § d ——

Avenue, N.W.. ns erat inane > a

LY bi rg /

RHONDA A. ANDERSON, ESQ.

Counsel for Ramon Lopez

RS