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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. CLINTON COX : : : : : : : CRIM. NO. 3:00CR69(AHN) CIV. NO. 3:04CV1383(AHN) February 15, 2004

GOVERNMENT'S RESPONSE TO DEFENDANT'S PRO SE "NOTICE OF JUDICIAL COGNIZANCE" By pro se pleading entitled "Notice of Judicial Cognizance" ("Notice") filed February 8, 2005, Clinton Cox (the "defendant") informed the Court of the recent decision by the United States Supreme Court in United States v. Booker, 125 S. Ct. 738 (2005). Because Booker does not apply on collateral review, the defendant's amended petition should be summarily dismissed and his request for release denied. Even if Booker applied here, the

defendant still would be subject to a thirty-five year term of imprisonment as a result of the statutory mandatory minimums applicable here. Consequently, the defendant's requested relief

of immediate release is not available. I. Procedural History On April 4, 2001, a grand jury sitting in Bridgeport, Connecticut returned a multi-count indictment against the defendant and Jason Cox (collectively "the defendants") and Willie Grant ("Grant") charging various violations of the federal narcotics and firearms laws. (See Gov't Ex. 1 (copy of District

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Court docket sheet)).1 On August 1, 2001, the grand jury returned a Superseding Indictment against the defendants. Superseding Indictment)). (See Gov't Ex. 2 (copy of

The Superseding Indictment deleted

Grant from among the named defendants and alleged that the defendants violated various federal narcotics and firearm laws. On August 28, 2000, the Government filed notice pursuant to 21 U.S.C. § 851 of its intent to seek enhanced sentencing penalties against the defendants based on their prior felony drug convictions. (See Gov't Ex. 1.)

Between January 16, 2001 and January 23, 2001, the Court held trial. (See Gov't Ex. 1.) On January 23, 2001, the jury

returned guilty verdicts against the defendants on each of the remaining counts of the Superseding Indictment. (See Gov't Ex. 1.) The defendant was convicted of one count of conspiring to possess with the intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1)(Count One), three counts of possessing with the intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Counts Four, Seven, and Ten), and three counts of using and carrying a firearm during and in relation to a drug Because of their volume, the Government has not attached the exhibits identified in this memorandum. The exhibits are attached to the Government's memorandum dated October 18, 2004. The Government respectfully requests that the Court incorporate those exhibits into this memorandum. 2
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trafficking crime in violation of 18 U.S.C. § 924(c) (Counts Five, Eight, and Eleven). The Presentence Investigation Report ("PSR") calculated the defendant's Sentencing Guideline range to be 540 months to life imprisonment. See Clinton Cox PSR ¶¶ 48, 55, 90, 91.

The PSR calculated the defendant's offense level as follows: Base offense level (U.S.S.G. § 2D1.1(a)(3)(1)) Adjustment for role in offense (§ 3B1.1) . . . . . . 38 +4 42

. . . . . . . . . .

Total Offense Level . . . . . . . . . . . . . . . . . . . . . It also calculated that the defendant possessed eight criminal history points, corresponding to Criminal History Category IV. See PSR ¶ 55. The PSR also noted that the defendant's convictions for possession of firearms in connection with his drug offenses

pursuant to 18 U.S.C. § 924(c) required imposition of consecutive 5-year terms for each count of conviction. This translated to See

fifteen additional years of imprisonment for the defendant. PSR ¶ 39.

On September 12, 2001, the Court sentenced the defendant to a term of imprisonment of 540 months. On March 19, 2003, the Court of Appeals for the Second Circuit affirmed the defendant's conviction. v. Cox, 324 F.3d 77 (2d Cir. 2003) See United States

On October 6, 2003, the

Supreme Court denied the defendant's petition for a writ of 3

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certiori.

See United States v. Cox, 124 S. Ct. 143 (2003).

On approximately January 20, 2004, the defendant forwarded to the Clerk of the Court a motion pursuant to Fed. R. Crim. P. 33 requesting a new trial on Count Eight of the Superseding Indictment, which alleged that he violated 18 U.S.C. § 924(c) on March 19, 1999. That motion is still pending.

On approximately August 9, 2004, the defendant forwarded to the Clerk of the Court a petition pursuant to 28 U.S.C. § 2255. In his petition, the defendant asserted three principal grounds in support of his motion. First, he alleged that Lawrence

Hopkins, Esq., his trial counsel, provided ineffective assistance of counsel by failing to request an audibility hearing of a recording of a conversation on February 10, 2000 between Jason Cox, the defendant's brother, and a Government cooperator and by failing to seek to redact that portion of the recording referring to the defendant. Second, the defendant alleged that Blakely v.

Washington required that the district court vacate his sentence. Third, the defendant argued that Count One of the Superseding Indictment was fatally defective because it did not alleged that he "willfully" entered the narcotics conspiracy charged. On October 18, 2004, the Government filed a memorandum addressing each claim and requesting that the Court dismiss the defendant's petition.

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II.

The Defendant's Amended Petition Should Be Dismissed Booker does not apply to collateral challenges to a

defendant's sentence.

Even if it did, the defendant here still

would be subject a statutorily required mandatory minimum term of imprisonment of thirty-five years as a result of the jury's verdict. A. Booker Does Not Apply To Collateral Challenges

In Booker, the Supreme Court held that the United States Sentencing Guidelines violated the Sixth Amendment principles articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004), and determined that a mandatory system in which a sentence is increased based on factual findings by a judge violates the right to trial by jury. The principle adopted in Booker, like the

principle adopted in Blakely, constitutes a "new constitutional rule of criminal procedure" which, under Teague v. Lane, 489 U.S. 288 (1989), is not retroactively applicable to cases, such as the defendant's case, that became final before the decision was announced. In McReynolds v. United States, 2005 WL 237642 (7th Cir.

Feb. 2, 2005), the Seventh Circuit held that "Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005. . . . Booker itself represents the establishment of a new rule about the federal system. Petitioners' convictions and sentences became final well before 5

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Booker was issued, and its approach therefore does not govern these collateral proceedings." Id. at *5; see Warren v. United

States, 2005 WL 165385, at *9-10 (D. Conn. Jan. 25, 2005) (Thompson, J.) (Apprendi, Blakely and Booker do not "afford[] relief" to the petitioner on collateral attack); see also, e.g., United States v. Russell, 2005 WL 281183 (E.D. Pa. Feb. 3, 2005)(Booker not retroactive); Tuttamore v. United States, 2005 WL 234368 (N.D. Ohio Feb. 1, 2005) ("To the extent that petitioner relies on Booker, he cannot so prevail, because the decision in Booker is not retroactive for purposes of § 2255 collateral attacks."); Gerrish v. United States, 2005 WL 159642 (D. Me. Jan. 25, 2005)(same); cf. Green v. United States, 2005 WL 237204 (2d Cir. Feb. 2, 2005)(motion to file second or successive application on the basis of Booker denied since Supreme Court has not explicitly made Booker or Blakely retroactive on collateral attack); In re Anderson, 2005 WL 123923 (11th Cir. Jan 21, 2005) ("because Booker, like Blakely and Ring, is based on an extension of Apprendi, defendant cannot show that the Supreme Court has made that decision retroactive to cases already final on direct review."); Hamlin v. United States, 2005 WL 102959 (D. Me. Jan.

19, 2005)(same). This Court should follow the Seventh Circuit's reasoning in McReynolds and of the other courts which have found Booker unavailable on collateral attack. 6 McReynolds relied on Schriro

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v. Summerlin, 124 S. Ct. 2519 (2004), a case in which the Supreme Court considered whether Ring v. Arizona, 536 U.S. 584 (2002), applied retroactively to cases that had already become final when Ring was decided. Ring held that, because Arizona law authorized

the death penalty only if an aggravating factor was present, Apprendi required the existence of such a factor to be proved to a jury rather than to a judge. Summerlin's conviction and death

sentence, which was imposed under the same Arizona law that was at issue in Ring, became final long before Ring was decided. The Supreme Court held that "Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review." Ring, 124 S. Ct. at 2526. The Court explained

that a "new rule" resulting from one of its decisions applies to convictions that are already final only in limited circumstances. New substantive rules generally apply retroactively, but new procedural rules generally do not ­ only "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding" are given retroactive effect. Id. at 2523 (internal quotation marks omitted). The

Court concluded that Ring's holding was properly classified as procedural, rather than substantive, because it did not alter the range of conduct or the class of persons subject to the death penalty in Arizona; instead, it merely changed the method of determining whether the defendant engaged in that conduct. See

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id. at 2523-24.

The Court also held that Ring did not fall

within Teague's narrow exception for "watershed rules" of criminal procedure. The Court explained that, to qualify as a

watershed rule, a new procedural rule must be one "without which the likelihood of an accurate conviction is seriously diminished." See id. at 2523 (quoting Teague, 489 U.S. at 313) (emphasis added in Summerlin). The Court held that Ring did not

announce a watershed rule of criminal procedure because it could not confidently say that judicial fact finding seriously diminished the accuracy of capital sentencing proceedings. at 2424-25. Consistent with the reasoning of Summerlin, the Second Circuit has held, like every other Court of Appeals to have considered the issue, that Apprendi is not a procedural rule that falls within the "watershed rile" exception and thus is not retroactively applicable to cases on collateral review. See Coleman v. United States, 329 F.3d 77 (2d Cir.), cert. denied, 124 S. Ct. 840 (2003).2 Importantly, the Second Circuit in Id.

Accord Sepulveda v. United States, 330 F.3d 55 (1st Cir. 2003); United States v. Swinton, 333 F.3d 481 (3d Cir.), cert. denied, 124 S. Ct. 458 (2003); United States v. Sanders, 247 F.3d 139 (4th Cir. 2001); United States v. Brown, 305 F.3d 304 (5th Cir. 2002), cert. denied, 538 U.S. 1007 (2003); Goode v. United States, 305 F.3d 378 (6th Cir. 2002); Curtis v. United States, 294 F.3d 841 (7th Cir. 2002); United States v. Moss, 252 F.3d 993 (8th Cir. 2001); United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002); United States v. Mora, 293 F.3d 1213 (10th Cir. 2002); McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001). 8

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Coleman held that Apprendi was not a watershed rule despite the difference between using the jury and the judge as factfinder and despite the difference in the relevant burdens of proof, that is a preponderance-of-the-evidence standard versus a beyond-areasonable-doubt standard. In Coleman, the Second Circuit noted that, in order to constitute a "watershed" rule of criminal procedure, "a rule must not only improve the accuracy of criminal proceedings, but also alter our understanding of the bedrock procedural elements essential to the fairness of those proceedings. In short, it must be a groundbreaking occurrence." Coleman, 329 F.3d at 88

(internal quotation marks, alterations, and citations omitted). "Apprendi did not cut a new rule from whole cloth. It merely clarified and extended the scope of two well-settled principles of criminal procedure: the defendant's right to a jury trial and the government's burden of proof beyond a reasonable doubt." at 89 (internal quotation marks omitted). Id.

The Colman Court's is

firmly grounded in earlier decisions of the Supreme Court and the Second Circuit holding that Apprendi errors may be reviewed for harmlessness, not structural error ­ a conclusion that would have stood in tremendous tension with a determination that Apprendi announced a watershed rule, see id. at 89-90 ­ that is, one of the "small core of rules requiring the observance of those procedures that . . . are implicit in the concept of ordered liberty." Id. at 88 (internal quotation marks and citations 9

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omitted). Coleman involved a determination that a change in the identity of the relevant fact-finder and an increase in the burden of proof were insufficient to constitute a "watershed" rule of criminal procedure. Because Booker did not entail either

of those changes ­ but instead maintained the identity of the fact-finder at sentencing as well as the preponderance of the evidence standard ­ it follows, a fortiori, that Booker's rule falls short of being a "watershed" rule. Indeed, as the Second

Circuit recently posited in United States v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2, 2005), the district court might very well have imposed the same sentence regardless of whether the Guidelines were binding (as before Booker) or advisory (after Booker), and that district judges might impose higher or lower sentences in Booker's wake. In short, Booker's holding simply

does not shift the foundations of American constitutional law and hence does not apply retroactively on collateral attack. Booker entailed an extension of the procedural rule announced in Apprendi that factual findings that increase the maximum penalty permitted by law must be found by a jury beyond a reasonable doubt. The Supreme Court has defined a "new rule" under Teague as one that was not "`dictated by precedent existing at the time the defendant's conviction became final.'" Graham v.

Collins, 506 U.S. at 467 (quoting Teague, 489 U.S. at 301

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(emphasis in Teague)); see Sawyer v. Smith, 497 U.S. 227, 234 (1990). Subsequent decisions have made clear that a rule may be

"new" despite the fact that earlier cases supported it, Sawyer, 497 U.S. at 236, "or even control or govern" it, Saffle v. Parks, 494 U.S. 484, 491 (1990). Under that definition, Booker

announced a new rule for Teague purposes. Moreover, while not directly addressing the retroactivity of its extension of Blakely to the Sentencing Guidelines and its holding that those Guidelines would be advisory, the "merits majority" of Booker clarified that its holding on the merits and the remedy of the Sixth Amendment claim was to apply "to all cases on direct review." 2005 WL 50108 at *29 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987): "[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past."). This statement has already been read by one court, in the context of a successive petition, as limiting the application of the rule to cases in the direct review pipeline especially in view of the fact that the Supreme Court has already concluded that Ring v. Arizona, 536 U.S. 584 (2002), a case which applied the principle of Apprendi to death sentences imposed on the basis of aggravating factors, was not to be applied retroactively to cases once they were final on direct review. See Hamlin v. United States, 2005 WL 102959 at *1 (citing 11

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Schriro v. Summerlin, 124 S. Ct. at 2519, 2526 (2004)("Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review.")); see also Stevens v. United States, 2005 WL 102958 (D. Me. Jan 18, 2005). In short, Booker, which represents an extension of Apprendi, does not apply on collateral review. B. Even If Booker Applied Here, The Defendant Still Would Be Subject To A Thirty-five Year Term Of Imprisonment

In Booker, the Supreme Court confirmed that no violation of a defendant's Sixth Amendment rights exists if he was sentenced within the applicable maximum sentence established by the facts found by a jury or admitted by the defendant. See Booker, 125 S. Ct. at 750. See also United States v. Harris, 536 U.S. 545, 557

(2002)(no violation of the defendant's Sixth Amendment rights exists where the defendant is sentenced to the mandatory minimum sentence based upon judicial fact finding, so long as that minimum does not exceed the otherwise applicable maximum sentence) Here, a jury found beyond a reasonable doubt that the defendant conspired to possess with the intent to distribute and to distribute at least 50 grams of cocaine base. Combined with

the Government's filing of a notice pursuant to 21 U.S.C. § 851, the jury's finding as to the quantity and type of controlled substances established a maximum penalty of life imprisonment and

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a mandatory minimum penalty of twenty years of imprisonment. 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(iii). Further, the

See

jury found beyond a reasonable doubt that the defendant violated 18 U.S.C. § 924(c) on three occasions. The jury's verdict on

those counts established a maximum penalty of life and a mandatory minimum penalty of five years imprisonment on each count. In short, the defendant's conviction by jury on the narcotics and firearms counts resulted in a statutorily required mandatory minimum term of imprisonment of thirty-five years. Consequently, the defendant is not legally entitled to immediate release. Even if Harris were overruled and the principles established in Booker extended to mandatory minimum penalties, the defendant's conviction by a jury that found beyond a reasonable doubt the facts triggering the applicable mandatory minimum terms of imprisonment satisfies any arguable Sixth Amendment requirements. Indeed, even after Booker, the defendant could not

be sentenced to any term lower than the combined statutorily required mandatory minimum penalty of thirty-five years. III. Conclusion For the reasons stated in this and the Government's earlier response, the Government respectfully requests that petitioner's section 2255 petition seeking to vacate his sentence should be

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summarily denied without a hearing. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY JAMES J. FINNERTY ASSISTANT UNITED STATES ATTORNEY United States Attorney's Office United States Courthouse 915 Lafayette Boulevard Bridgeport, CT 06604 Tel: (203) 696-3000 Federal Bar No. CT15203 CERTIFICATION OF SERVICE This is to certify that a copy of the foregoing has been mailed via First Class Mail, postage prepaid, on February 15, 2004 to: Clinton D. Cox Inmate No. 13883-014 USP Lewisburg P.O. Box 1000 Lewisburg, PA 17837 ___________________________ JAMES J. FINNERTY ASSISTANT UNITED STATES ATTORNEY

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