Court: Court of Appeals for the Second Circuit; December 19, 1993; Federal Appellate Court
William R. Underwood appeals a March 1993 order from the U.S. District Court for the Southern District of New York, which denied his petition under 28 U.S.C. § 2255 to vacate his life imprisonment sentence. Underwood was convicted in January 1990 on multiple counts, including racketeering and operating a continuing criminal enterprise (CCE), leading to a mandatory life sentence under the Sentencing Guidelines. His concurrent sentences included 20 years for racketeering and related conspiracies.
After the Second Circuit affirmed his conviction and sentence in May 1991, Underwood filed his § 2255 petition, arguing that the district court improperly sentenced him based on jury findings regarding the timeline of his criminal conduct relative to the guidelines' effective date. He contended that this should have led to a discretionary sentence under pre-guidelines law, which allowed for a range between 10 years and life imprisonment.
Underwood claimed ineffective assistance of appellate counsel for failing to refer to a previous controlling decision (United States v. Torres) during his direct appeal. Notably, he was represented by the same attorney, Donald V. Morano, in both the original appeal and the § 2255 petition. Judge Cedarbaum noted that even if she could revisit an already decided issue, she would not change her ruling, as she had already found Torres distinguishable. The Second Circuit upheld her decision, affirming the denial of Underwood's petition.
Underwood's Sec. 2255 petition reiterates claims previously rejected in his direct appeal, specifically contesting the district court's sentencing under the Sentencing Guidelines. The court asserts that Sec. 2255 cannot be used to relitigate issues previously considered on direct appeal, as established in Cabrera v. United States. Exceptions to this rule apply only when there is an intervening change in law or when ineffective assistance of counsel resulted in failure to raise an issue on appeal. Neither exception is applicable here: the Torres case, cited by Underwood, predates Underwood's appeal and does not represent a change in law; additionally, Underwood's claim of ineffective assistance is based on his counsel's failure to cite cases rather than a complete failure to raise an issue.
Even if Underwood were not procedurally barred, his arguments based on Torres do not impact the previous ruling in Underwood I. Underwood contends that Torres mandates jury findings that criminal conduct occurred after the effective date of the Sentencing Guidelines, but the court disagrees, clarifying that Torres pertains to a substantive criminal statute rather than sentencing guidelines. In Torres, convictions were vacated because the jury could have convicted based on conduct before the statute's effective date, violating the ex post facto rule. However, Underwood's situation differs; the jury had already found him guilty beyond a reasonable doubt for all crime elements, and it is permissible for the judge to determine the timing of the crime's occurrence in relation to the Sentencing Guidelines. Thus, Underwood's arguments lack merit and do not alter the prior decision.
Miller v. Florida establishes two criteria for an ex post facto violation: the law must apply retrospectively to events before its enactment and must disadvantage the offender. Although Underwood claimed to be disadvantaged by the Sentencing Guidelines, the court found that these guidelines were not applied retrospectively, as evidence indicated that Underwood’s conduct continued past the effective date of the guidelines. The Supreme Court's ruling in McMillan v. Pennsylvania clarifies that a sentencing factor, which does not alter the maximum penalty but is determined after a guilty verdict, can be assessed by the sentencing judge using a preponderance of the evidence standard. Consequently, the question of whether Underwood’s conduct continued past the guidelines' effective date was a sentencing factor within the judge's authority. The district court's denial of Underwood's Sec. 2255 petition is affirmed. Furthermore, Underwood's ineffective assistance claim, raised regarding his appellate counsel rather than trial counsel, does not follow the precedent set in United States v. Billy-Eko, which primarily addresses trial-related claims. Lastly, a defendant can be considered "substantially disadvantaged" even if a new sentencing law only removes the possibility of a lesser sentence under the old law, as noted in Miller.
