United States v. Romero

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 26 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-2478
(D.C. No. CIV-99-279-JC)
JAMES MANUEL ROMERO, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.
After examining appellant’s opening brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant James Manuel Romero, proceeding pro se, seeks review of the
district court’s order denying his motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. The case is now before this court on
defendant’s application for a certificate of appealability (COA) under 28 U.S.C.
§ 2253(c). To qualify for a COA, defendant must make a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the
district court did not reject the claims defendant asserts on appeal on the merits,
but instead denied defendant’s motion for leave to amend his § 2255 motion on
procedural grounds, defendant must show that “jurists of reason would find it
debatable whether the [motion] states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S.
473, 484 (2000).
I. Background
A jury convicted defendant of seven separate federal offenses relating to
his participation in a carjacking and robbery. The seven offenses were:
conspiracy to commit carjacking and robbery and extortion (Count I); carjacking
(Count II); using or carrying a firearm during and in relation to a carjacking
(Count III); robbery and extortion (Count IV); using and carrying a firearm during
and in relation to a robbery and extortion (Count V); receipt of a stolen firearm
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(Count VI); and being a felon in possession of a firearm (Count VII). The district
court sentenced defendant to consecutive or concurrent prison terms for each of
these offenses, and the total sentence imposed was life imprisonment plus twenty
five years.
The district court enhanced defendant’s sentences for counts I, II, IV, V,
and VII because defendant had prior felony convictions. First, because defendant
had two prior convictions for serious violent felonies, and counts I, II and IV also
constituted serious violent felonies, the district court imposed three mandatory
life sentences for these counts under the “Three Strikes” statute, 18 U.S.C.
§ 3559(c)(1). Second, the district court imposed a mandatory sentence of twenty
years on Count V because it was defendant’s second or subsequent conviction
under 18 U.S.C. § 924(c)(1). Third, the district court imposed a sentence of 327
months for Count VII based on its finding that defendant had been convicted of
three prior violent felonies within the meaning of the Armed Career Criminal
Statute, 18 U.S.C. § 924(e)(1).
On direct appeal, we affirmed the district court’s rulings in all respects, but
we remanded for the district court to make findings regarding defendant’s
objections to the presentence report or enter a declaration stating that it did not
take the controverted matters into account in sentencing defendant. United States
v. Romero , 122 F.3d 1334, 1344 (10th Cir. 1997). On remand, the district court
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entered an order stating that it did not take the controverted matters into account
in sentencing defendant. Thereafter, on March 23, 1998, the Supreme Court
denied defendant’s petition for writ of certiorari. Romero v. United States , 523
U.S. 1025 (1998).
On March 9, 1999, defendant, proceeding pro se, filed a motion in the
district court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. In his motion, defendant raised eight issues: (1) the district court erred
when it failed to grant defendant’s motion to suppress certain statements made to
law enforcement officers; (2) the district court erred in allowing jury instructions
involving the issue of intent over defense counsel’s objection; (3) the district
court erred in admitting a record of defendant’s prior felony conviction; (4) the
district court erred in using defendant’s prior conviction for conveying a weapon
in a federal prison as a “third strike” under 18 U.S.C. § 3559(c); (5) defendant
was denied effective assistance of counsel because his trial counsel failed to raise
the issue of materiality concerning the statements made to law enforcement
officers; (6) the trial court erred in allowing defendant’s trial counsel to withdraw
prior to sentencing; (7) defendant was denied effective assistance of counsel at
sentencing because defendant was represented by different counsel at sentencing;
and (8) defendant was denied effective assistance of counsel on direct appeal
because appellate counsel failed to raise the issue of whether the prosecutor
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improperly commented on defendant’s failure to testify during closing argument.
On August 17, 2000, the district court entered an order denying defendant’s
§ 2255 motion. Defendant is not pursuing any of the issues raised in his initial
§ 2255 motion as part of this appeal.
On August 16, 2000, defendant filed a motion for leave to amend his
§ 2255 motion pursuant to Fed. R. Civ. P. 15(a). In his motion for leave,
defendant argued that he should be permitted to amend his § 2255 motion based
upon an intervening change in the law resulting from the Supreme Court’s
decisions in Jones v. United States , 526 U.S. 227 (March 24, 1999) and Apprendi
v. New Jersey , 120 S. Ct. 2348 (June 26, 2000). On August 17, 2000, the district
court denied defendant’s motion for leave to amend.
Defendant subsequently filed an application for a COA in the district court,
and the district court denied defendant’s application. Defendant now seeks a
COA from this court raising two errors: (1) the district court erred in not granting
defendant leave to amend his § 2255 motion; and (2) the sentencing enhancements
imposed by the district court for defendant’s prior felony convictions violated
Apprendi because the prior convictions were not charged in the indictment or
submitted to the jury and proven beyond a reasonable doubt. 1
1
In his opening brief, defendant also alleges that he received ineffective
assistance of counsel because his counsel should have raised the Apprendi issues
(continued...)
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II. Discussion
A. Motion for Leave to Amend
Defendant sought permission to amend his § 2255 motion more than one
year after his convictions became final. 2
As a result, the one-year period of
limitation under § 2255 barred defendant from amending his motion unless the
proposed amendment related back to the date when defendant filed his original
motion under Fed. R. Civ. P. 15(c). See United States v. Espinoza-Saenz , 235
F.3d 501, 503-05 (10th Cir. 2000). 3
In Espinoza-Saenz , we held that an untimely amendment to a § 2255 motion
will relate back to the date when the original motion was filed “if and only if the
original motion was timely filed and the proposed amendment does not seek to
1
(...continued)
at trial or on direct appeal. However, defendant failed to raise this issue before
the district court, and we find that there is no basis for permitting defendant to
raise this issue for the first time on appeal.
2
As set forth above, defendant filed his motion for leave to amend his
§ 2255 motion on August 16, 2000. The one-year period of limitation under
§ 2255 expired on March 23, 1999--one year after the United States Supreme
Court denied defendant’s petition for writ of certiorari. See United States v.
Simmonds , 111 F.3d 737, 744 (10th Cir. 1997) (holding that prisoner’s conviction
is final for purposes of § 2255 when the Supreme Court denies certiorari petition).
3
Although defendant initially cited, and discussed to varying degrees, the
Supreme Court’s decisions in Jones and Apprendi in several documents he filed in
the district court before he filed his motion for leave to amend his § 2255 motion,
all of the documents were filed after the expiration of the one-year period of
limitation in § 2255.
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add a new claim or to insert a new theory into the case.” Id. at 505 (quotation
omitted). Here, defendant’s original § 2255 motion was timely filed, but the
district court properly denied defendant’s motion for leave to amend because
defendant was seeking to raise new claims and theories based on the Supreme
Court’s decision in the Apprendi case. “Therefore, under the circumstances here,
the relation back provision of Rule 15(c) cannot be applied to save defendant’s
[new] claims, and the district court did not abuse its discretion in denying
defendant permission to amend.” Id.
B. Second or Successive § 2255 Motion
Because defendant was precluded from amending his § 2255 motion, the
district court should have treated his motion for leave to amend as a motion for
leave to file a second or successive § 2255 motion and transferred the motion to
this court. Id. at 503 (finding no error in district court’s decision to transfer
defendant’s supplemental § 2255 motion to this court as second or successive
motion where defendant’s motion could not relate back under Fed. R. Civ. P.
15(c) because it raised new claims). We will therefore treat the application for a
COA that defendant filed in this court as a motion for leave to file a second or
successive § 2255 motion.
Under § 2255, this court may only grant leave to file a second or successive
§ 2255 motion based upon an intervening change in the law “if it relies upon ‘a
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new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.’” Browning v. United States ,
241 F.3d 1262, 1263 (10th Cir. 2001) (en banc) (quoting 28 U.S.C. § 2255). We
have held that this requirement is met only if the Supreme Court specifically
declares that the new rule applies retroactively to cases on collateral review and
that the Supreme Court has not yet made such a declaration about its decision in
Apprendi . Id. Consequently, we deny defendant leave to file a second or
successive § 2255 motion to present his Apprendi arguments. 4
For the reasons set forth above, we hold that defendant has failed to make a
sufficient showing under 28 U.S.C. § 2253(c) to obtain a COA, and we also deny
defendant leave to file a second or successive § 2255 motion. Accordingly, this
appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
4
Even if we were to grant defendant leave to file a second or successive
§ 2255 motion, defendant’s Apprendi arguments would fail on the merits. See
Apprendi , 120 S. Ct. at 2361-63 (holding that, under Almendarez-Torres v. United
States , 523 U.S. 224 (1998), sentencing enhancements based on prior convictions
do not need to be charged in indictment or proven beyond reasonable doubt);
United States v. Wilson , __ F.3d __, 2001 WL 303650, at *6 (10th Cir. March 29,
2001) (Nos. 99-6348, 99-6358, 99-6383) (recognizing that Apprendi did not
overrule Almendarez-Torres ).
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Circuit Judge
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