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United States v. Baltimore

United States District Court, S.D. Ohio, Western Division, Dayton

November 20, 2017


          Walter H. Rice, District Judge


          Michael R. Merz, United States Magistrate Judge

         This criminal case is before the Court on Defendant Anthony Baltimore's Amended Motion to Vacate, Set Aside, or Correct a Sentence, pursuant to 28 U.S.C. § 2255 (Doc. No. 299). The Magistrate Judge filed a Report and Recommendations which recommended dismissal (the “Report, ” ECF No. 334). Defendant filed timely Objections (ECF No. 336). Judge Rice then recommitted the matter for reconsideration in light of the Objections (Recommittal Order, ECF No. 337). The United States has filed no response to the Objections and its time to do so has expired. Thus the Objections are ripe for consideration.

         The § 2255 Motion pleads six Grounds for Relief (Amended Motion, ECF No. 299). The Objections do not raise any issues with the recommended dismissal of Grounds Four and Five and they will not be further discussed. The other Objections take the grounds for relief out of order, but the analysis here will follow the order in which the grounds were pleaded.

         Ground One: Conviction on Count Five Unconstitutional Under Alleyne v. United States. 570 U.S. 99 (2013).

         Alleyne Retroactivity

         In his First Ground for Relief, Baltimore asserts his conviction on Count 5 for violating the continuing criminal enterprise statute, 21 U.S.C. §§ 848(a), (b)(1), and (b)(2)(A) is unconstitutional because neither the jury nor the trial judge found that he was “the principal administrator, organizer, or leader of the enterprise.”

         In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at ___. Eventually the Supreme Court held any fact that makes a defendant eligible for the mandatory minimum sentence for an offense is an “element” which must be submitted to the jury. Alleyne v. United State, . 570 U.S. 99 (2013), overruling Harris v. United States, 536 U.S. 545 (2002).

         Alleyne was decided almost a year after the Sixth Circuit affirmed Mr. Baltimore's conviction. The Report concluded Alleyne would provide no relief to Baltimore because it was not retroactively applicable to cases pending on collateral review (Report, ECF No. 334, PageID 8478, relying on In re: Mazzio, 756 F.3d 487 (6th Cir. 2014), and Rogers v. United States, 561 Fed.Appx. 440 (6th Cir. 2014), cert denied, 135 S.Ct. 500 (2014). The Report disagreed with Baltimore's argument that the relevant language in Rogers was dictum (ECF No. 334, PageID 8478-79).

         The Objections do not respond to that point, but assert that Alleyne is retroactively applicable on collateral review by analogy to Montgomery v. Louisiana, 136 S.Ct. 718 (2016). In Montgomery the Supreme Court declared that its prior decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), announced a new substantive rule of constitutional law, to wit, that mandatory life sentences without parole for juvenile offenders were unconstitutionally cruel and unusual punishment. Montgomery concluded that Miller was therefore applicable on collateral review. Baltimore had called Montgomery to the Magistrate Judge's attention (ECF No. 331), but the Report did not discuss the case and it therefore requires analysis here.

         Subject to two narrow exceptions, a case that is decided after a defendant's conviction and sentence become final, as Alleyne was here, may not provide the basis for federal habeas relief if it announces a new rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 (1992); Teague v. Lane, 489 U.S. 288 (1989).

         “Two exceptions to the Teague rule, however, permit the retroactive application of a new rule whenever: 1) the rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or otherwise prohibits imposition of a certain type of punishment for a class of defendants because of their status or offense; or 2) the rule announces a new “watershed” rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” In re Carl Green, 144 F.3d 384, 386 (6th Cir. 1998), citing Caspari v. Bohlen, 510 U.S. at 396.

         A Supreme Court decision announces a new rule within the meaning of Teague where the issue addressed was susceptible to debate among reasonable minds. Butler v. McKellar, 494 U.S. 407, 412-415 (1990). A new rule is “a rule that ... was not dictated by precedent existing at the time the defendant's conviction became final.” Saffle v. Parks, 494 U.S. 484, 488 (1990), quoting Teague v. Lane, 489 U.S. 288, 301 (1989)(emphasis in original). Alleyne announced a new rule because it explicitly overruled Harris.

         The rule in Crawford v. Washington, 541 U.S. 36 (2004), interpreting the Confrontation Clause is a new rule, but does not fall within the “watershed” exception to Teague. Whorton v. Bockting, 549 U.S. 406 (2007). As of February 28, 2007, the date Whorton was decided, the only rule the Supreme Court has identified as qualifying under the “watershed” exception is that adopted in Gideon v. Wainwright, 372 U.S. 335 (1963).

“A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Schriro, 542 U.S., at 353, 124 S.Ct. 2519, 159 L.Ed.2d 442. “This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish.” Id., at 351-352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (citation omitted); see Montgomery, supra, at, 136 S.Ct. 718, 730, 193 L.Ed.2d 599, 615). Procedural rules, by contrast, “regulate only the manner of determining the defendant's culpability.” Schriro, 542 U.S., at 353, 124 S.Ct. 2519, 159 L.Ed.2d 442. Such rules alter “the range of permissible methods for determining whether a defendant's conduct is punishable.” Ibid. “They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Id., at 352, 124 S.Ct. 2519, 159 L.Ed.2d 442.

Welch v. United States, 576 U.S. ___, 136 S.Ct. 1257 (2016).

         Baltimore argues:

Under the analysis in Montgomery, the Alleyne rule is a new substantive rule of law because it established that a defendant cannot be punished (in this case a mandatory life sentence) for certain primary conduct unless the facts supporting the aggravated level of punishment are submitted to a jury and proven beyond a reasonable doubt, regardless of whether the defendant could have received the same sentence with or without that fact.

(Objections, ECF No. 334, PageID 8547). When the quoted language is parsed, it facially refutes the proposition for which it is cited. Alleyne does not place “certain primary conduct” entirely beyond punishment, but conditions such punishment on a submitting the facts to a jury and obtaining a verdict. Thus Alleyne is in the line of cases beginning with Apprendi which impose procedural limits on imposing certain enhancements of criminal punishment. Apprendi itself does not apply retroactively as it is not a watershed rule of criminal procedure. Goode v. United States, 305 F.3d 378 (6th Cir. 2002).

         Other authority holding Alleyne is not retroactively applicable on collateral review includes United States v. Reyes, 755 F.3d 210 (3rd Cir. 2014); United States v. Redd, 735 F.3d 91 (2nd Cir. 2013); United States v. Hoon, 2014 U.S. App. LEXIS 15408 (10th Cir. 2014); In re Payne, 733 F.3d 1027 (10th Cir. 2013); Simpson v. United States,721 F.3d 875 (7th Cir. 2013); United States v. Taylor, 2014 U.S. Dist. ...

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