United States District Court, E.D. Virginia
CLAUDE M. HILTON, District Judge.
THIS MATTER comes before the Court on the Motion of Seth Michael Ferranti ("Petitioner") to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255.
On August 28, 1991, the Petitioner pleaded guilty to Engaging in a Continuing Criminal Enterprise ("CCE") in violation of 21 U.S.C. § 848, and was ordered to appear for sentencing on December 13, 1991. The Petitioner was then personally served with a criminal subpoena to appear on November 12, 1991 as a government witness. On November 9, 1991, three days prior to his court appearance, the Petitioner staged his suicide and failed to appear for both the November 12, 1991 trial and the December 13, 1991 sentencing. Shortly thereafter, the Petitioner fled the area. On October 1, 1991, the Petitioner was apprehended and arrested by the United States Marshals, and appeared for sentencing on the CCE charge on December 17, 1993. Petitioner was sentenced to 292 months of imprisonment.
On March 31, 1994 the Petitioner pleaded guilty to a two-count criminal information: (1) Failure to Appear at Sentencing, 18 U.S.C. § 3146(a)(1), (b) (1) (A) (1) and (b)(2); and (2) Mail Fraud, 18 U.S.C. §§ 1342, 2. On June 3, 1994, Petitioner was sentenced to 12 months of imprisonment on the aforementioned charges.
On April 21, 1997, the Petitioner filed motions in both cases to vacate or set aside his sentence, pursuant to 28 U.S.C. § 2255. The motions were denied on August 22, 1997 and April 22, 1998.
A prisoner in custody under sentence of a federal court may file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct the sentence. Relief can be claimed on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255.
While a federal inmate may file one § 2255 motion after his judgment of conviction has become final, he must obtain authorization before presenting a successive motion. 28 U.S.C. § 2255(h). A successive motion must be certified as provided in 28 U.S.C. § 2244 by a panel of the appropriate court of appeals to contain either:
(1) newly discovered evidence that, if proven and viewed in light of the evidence of the whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). There is no evidence in the record to suggest that the Petitioner has acquired the requisite certification from the Fourth Circuit to file a successive motion. Furthermore, even if the Petitioner attempted to acquire the requisite certification, it would be denied because of the Petitioner's reliance on the Supreme Court's decisions in Blakely v. Washington , 542 U.S. 296 (2004) (any fact other than a prior conviction, that raises the penalty beyond the prescribed statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt, as applied to state sentencing guidelines) and United States v. Booker , 543 U.S. 220 (2005) (applying the holding of Blakely to the federal sentencing guidelines). In United States v. Morris , 429 F.3d 65 (4th Cir. 2005), this circuit held that Booker does not apply retroactively to cases on collateral review.
To determine when new rules of criminal procedure apply retroactively on collateral review, the court must first decide whether the Supreme Court's ruling indeed constitutes a new rule of constitutional criminal procedure. Id . at 69. If the rule is new, it does not apply retroactively unless the rule is of "watershed" magnitude. Id . at 69-70. A new rule must meet two requirements to qualify as a "watershed" rule: (1) infringement of the rule must seriously diminish the likelihood of obtaining a conviction; and (2) it must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. Id . at 71. The Supreme Court has explained that this class of rules is "extremely narrow." Schriro v. Summerlin , 542 U.S. 348, 352 (2004).
The Petitioner's argument rests on the recent United States Supreme Court decision Alleyne v. United States , 133 S.Ct. 2151 (2013), which is merely an extension of the principle in Apprendi v. New Jersey , 530 U.S. 466 (2000) (any fact, other than a prior conviction, that is used to enhance a sentence beyond the statutory maximum must be admitted by a defendant or found beyond reasonable doubt by a jury). In Alleyne, the Supreme Court extended the rule in Apprendi to the context of mandatory minimum sentences. See Alleyne , 133 S.Ct. 2151 (2013).
The principle adopted by the Court in Alleyne is a "new constitutional rule of criminal procedure, " which, under Teague v. Lane , 489 U.S. 288 (1989), is not applicable to cases on collateral review. Furthermore, Alleyne is not a "watershed" decision by the Supreme Court's definition. Therefore, Alleyne is not retroactive on collateral review.
This circuit has held that Apprendi is not retroactively applicable on collateral review. United States v. Sanders , 247 F.3d 139 (4th Cir. 2001). The Supreme Court has held that rules based on Apprendi do not apply retroactively on collateral review. See Schriro v. Summerlin , 542 U.S. 348 (2004) (holding that Ring v. Arizona , 536 U.S. 584 (2002), which extended Apprendi to ...