United States Court of Appeals
For the First Circuit
No. 99-1276
FREDERIC W. BERTHOFF,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
B. Fletcher,* Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Michael C. Bourbeau, with whom Bourbeau & Bonilla was on
brief, for appellant.
Kevin O'Regan, Assistant United States Attorney, with whom
James B. Farmer, Chief, Criminal Division, Dina Michael Chaitowitz,
Appellate Chief, and Michael J. Sullivan, United States Attorney,
were on brief, for appellee.
October 21, 2002
_____________________
*Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
STAHL, Senior Circuit Judge. Petitioner-appellant
Frederic W. Berthoff appeals from the district court's order
denying his petition for habeas relief pursuant to 28 U.S.C.
§ 2255. Berthoff was convicted of drug conspiracy and related
charges following a jury trial. His sentence was seven times
greater than that of the next most culpable co-conspirator, who
cooperated with the government and pled guilty. The district court
granted a certificate of appealability (COA) sua sponte, asking
this Court to consider whether the disparity in sentencing violated
Berthoff's right to a jury trial. Later, it added to the COA the
issue of whether Berthoff's conviction violated Apprendi v. New
Jersey, 530 U.S. 466 (2000). We hold that the court below was in
error when it issued the COA, and affirm the denial of the habeas
petition.
I. BACKGROUND
A. The Criminal Proceedings
Berthoff, the kingpin of a drug ring, was indicted on
seventeen felony charges along with five associates.1 Following a
jury trial with co-defendants William Tibolt and Scott Holland,
Berthoff was convicted of conspiring to possess marijuana and
hashish with intent to distribute, 21 U.S.C. §§ 841, 846 (Count
One); possessing hashish with intent to distribute, id. § 841
1
The factual details of the criminal conspiracy are set forth
in Berthoff v. United States, 140 F. Supp.2d 50, 52-53 (D. Mass.
2001).
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(Count Two); tax evasion, 26 U.S.C. § 7206(1) (Count Three); money
laundering, 18 U.S.C. § 1956(a) (Counts Seven through Fourteen);
and witness tampering, 18 U.S.C. § 1512(b)(3) (Count Sixteen).
The United States District Court for the District of Massachusetts
sentenced Berthoff to twenty-one years' imprisonment on Counts One
and Two; three years' imprisonment on Count Three; twenty years'
imprisonment on Counts Seven through Fourteen; and ten years'
imprisonment on Count Sixteen, with the sentences on all counts to
run concurrently.
Thomas Cimeno, whom the district court characterized as
"the individual next to Berthoff most culpable in this conspiracy,"
pleaded guilty prior to trial and cooperated with the government.
Berthoff v. United States, 140 F. Supp.2d 50, 53 (D. Mass. 2001).
He received a sentence of three years' imprisonment. Albert Mello,
another "important figure" in the conspiracy, who also pleaded
guilty and cooperated, received the same sentence. Id. at 53. Wes
Schifone, a lesser figure who also pleaded guilty and cooperated,
was sentenced to five years' probation, the first nine months to be
spent in house arrest. Of the two co-defendants who went to trial,
Tibolt received an eight-year sentence, and Holland received five
years.
In an unpublished decision, this Court affirmed
Berthoff's conviction. United States v. Berthoff, No. 94-1719,
1995 WL 703506 (1st Cir. Nov. 29, 1995).
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B. The Habeas Petition
In April, 1997, Berthoff timely filed a petition for
habeas corpus on the ground that he was denied effective assistance
of counsel. He contended that his counsel was required to inform
him about plea overtures that had been made by the government and
about the effect on his sentence of the likely acceptance of
responsibility credit, U.S.S.G. § 3E1.1. The district court denied
the petition, and Berthoff appealed the denial.
On December 9, 1998, the district court granted a COA
that seemingly concerned the constitutionality of the disparity in
sentencing between those defendants who plead guilty and those who
stand trial. The parties, however, proceeded with the
understanding that the issue on appeal was Berthoff's ineffective
assistance of counsel claim.
On December 22, 1999, this Court vacated the COA.
Berthoff v. United States, No. 99-1276, 1999 WL 1295839 (1st Cir.
Dec. 22, 1999). Acknowledging the confusion about the issue on
appeal, we remanded with instructions to the district court to
clarify the issue warranting a COA and, if the court decided to
reissue the COA on the ineffective assistance of counsel claim, to
answer five questions set forth in our opinion. Id. at *2. In
November 2000, while the matter was on remand, Berthoff sought to
amend his § 2255 petition to add an Apprendi claim, arguing that
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the amount of contraband should have been presented to and
determined by the jury.
On April 9, 2001, the district court issued a report in
which it answered the Appeals Court's five questions and concluded
that there was no ineffective assistance of counsel. Berthoff, 140
F. Supp.2d at 54-58. Accordingly, it denied a COA as to that
claim. Id. at 58.2 Next, the court denied Berthoff's motion to
amend his § 2255 petition to include an Apprendi claim on the
grounds that (1) the court lacked jurisdiction to amend the
petition after it had rendered judgment thereon; and (2) amendment
would be futile because the Apprendi claim was time-barred. Id. at
59-60.
Finally, the district court sua sponte granted a COA
concerning "whether the conduct of the prosecutor or this Court in
this case unduly and unconstitutionally burdened Berthoff's Sixth
Amendment right to trial by jury." Id. at 61. The court decried
the widespread practice of fact bargaining, which it defined as
"the knowing abandonment by the government of a material fact
developed by law enforcement authorities or from a witness expected
to testify in order to induce a guilty plea." Id. at 62 n.19.
Although it acknowledged that there was no evidence that fact
bargaining played any role in Berthoff's sentencing, the court
2
On September 25, 2001, this Court affirmed that denial in an
unpublished per curiam opinion. Ineffective assistance of counsel
is not an issue in the present appeal.
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nonetheless suggested that a COA was appropriate on general policy-
based grounds, maintaining that "'substantial assistance' and fact
bargaining together constitute the single greatest cause of the
disparity in sentencing that so burdens the free exercise of the
Sixth Amendment." Id. at 67 n.30. Citing the 700% difference
between Cimeno's and Berthoff's sentences, inter alia, the district
court concluded that Berthoff "has made 'a substantial showing of
a denial of his constitutional right' to trial by jury such that
issuance of a [COA] is appropriate." Id. at 70 (quoting 28 U.S.C.
§ 2253(c)(2)).
In December, 2001, Berthoff moved to amend the COA to
include the issue of Apprendi's retroactive application to this
case. The district court allowed the motion.
II. DISCUSSION
A. Berthoff's Sixth Amendment Claim
28 U.S.C. § 2253(c)(1) provides, in relevant part, that
an appeal may not be taken from a district court's final order in
a § 2255 proceeding without the issuance of a COA. A COA may issue
only if the applicant has made a substantial showing of the denial
of a constitutional right. Id. at § 2253(c)(2). "A habeas
petitioner who fails to demonstrate that his claims satisfy the
substantial showing standard may not appeal the denial of habeas
corpus at all." Bui v. DiPaolo, 170 F.3d 232, 236 (1st Cir. 1999).
Furthermore, "the necessity for a substantial showing extends
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independently to each and every issue raised by a habeas
petitioner." Id.
"Habeas review is an extraordinary remedy and will not be
allowed to do service for an appeal." Reed v. Farley, 512 U.S.
339, 354 (1994) (internal citation omitted). The principles of
finality, federalism, and comity inform the scope of habeas review.
Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir. 2001) (citing Brecht v.
Abrahamson, 507 U.S. 619, 633-35 (1993); Teague v. Lane, 489 U.S.
288, 308-10 (1989)). Accordingly, a defendant's failure to raise
a claim in a timely manner at trial or on appeal constitutes a
procedural default that bars collateral review, unless the
defendant can demonstrate cause for the failure and prejudice or
actual innocence. Bousley v. United States, 523 U.S. 614, 622
(1998).
In this case, the COA was inappropriately issued because
Berthoff procedurally defaulted his Sixth Amendment claim and
failed to make a substantial showing that his right to a jury trial
was denied. He did not raise that issue at any stage of the
proceedings below: neither at trial, nor on direct appeal from his
convictions, nor in his § 2255 petition.3 Rather, the district
3
Nor does Berthoff make a developed argument as to cause and
prejudice or actual innocence on appeal, other than to contend that
the sentencing issue was too "novel" to be subject to the
procedural default doctrine. See Reed v. Ross, 468 U.S. 1, 15
(1984). In light of this circuit's case law addressing closely
related issues, notably United States v. Rodriguez, 162 F.3d 135
(1st Cir. 1998), we find this argument unpersuasive. Finally,
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court issued a COA on the Sixth Amendment issue sua sponte, in the
absence of briefing or a hearing.
Moreover, the district court's discussion focused on the
constitutional infirmities involved in fact bargaining and
inappropriately mechanistic downward departures for substantial
assistance. Berthoff, 140 F. Supp.2d at 61-67. Yet the court
concedes that these problems are not present in Berthoff's
situation: there was no evidence of fact bargaining below, id. at
67 n.30, and Berthoff and his co-defendants were thoughtfully
sentenced within the Guidelines, id. at 53, 57. We need do nothing
more than refer to the district court's own words to emphasize that
the constitutional complaints it postulates have little to do with
the facts of the present case:
[I]n an appropriate case, where the government
has engaged in illegal fact bargaining with
one defendant, I would not hesitate to hold
that a defendant similarly situated in all
material respects could take advantage of the
fact bargain in order freely to exercise the
right to trial by jury guaranteed by the Sixth
Amendment.
This is not such a case. After the most
thorough reflection, while I fully admit that
were I free to do so I would reduce Berthoff's
sentence, I can see no principled way to reach
such a result and at the same time remain
faithful to the judicial decisions that
Berthoff contended in his reply brief that he sufficiently
presented the sentencing disparity issue below when he asserted
ineffective assistance of counsel, but effectively repudiated this
contention at oral argument, conceding that the issues were only
tangentially related.
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properly control analysis here. The best I can
do is grant this certificate of appealability.
I respectfully urge the Court of Appeals to
address these intractable issues with the aid
of the broadest array of amici curiae . . .
Id. at 71 (emphasis added). Under these circumstances, to decide
whether fact bargaining violated the Sixth Amendment not only would
contravene the procedural default doctrine but would amount to
issuing an unlawful advisory opinion. Cf. United States v.
Sabatino, 943 F.2d 94, 96 n.1 (1st Cir. 1991) (Sixth Amendment
rights "are personal in nature and cannot be asserted
vicariously").4
In sum, this case simply is an inappropriate vehicle for
the district court's concerns. We acknowledge that the district
court raises serious and troubling issues regarding sentencing
disparity that merit careful consideration in an
appropriate case; as the trial court concedes, however, this is not
that case. Accordingly, we do not reach the merits of the
constitutional issue at this time.
B. Berthoff's Apprendi Claim
Berthoff contends that his sentence violates Apprendi
because the jury did not make findings as to the triggering
quantities that would support the 21-year drug trafficking
4
Berthoff contends that the 700% sentencing disparity alone --
absent fact bargaining or improper downward departures -- violates
his Sixth Amendment rights. As set forth supra, this argument is
barred by the procedural default doctrine.
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sentence. Under 21 U.S.C. § 841(b)(1)(B), the jury would have had
to find that he was responsible for at least one hundred kilograms
of a mixture or substance containing a detectable amount of
marijuana.
The district court declined to allow Berthoff to amend
his habeas petition to include the Apprendi claim, although it
later included it in the COA. We generally review a decision
granting or denying a motion to amend a complaint for abuse of
discretion. Watson v. Deaconess Waltham Hosp., 298 F.3d 102, 109
(1st Cir. 2002).
Berthoff does not argue that the district court abused
its discretion in denying his motion to amend. In any event, we
will not consider the Apprendi claim because the district court
correctly held that it lacked the authority to allow the amendment
after it had entered judgment on Berthoff's § 2255 petition. "A
habeas petitioner may not add new constitutional claims to a
petition after the district court has entered judgment." Ward v.
Whitley, 21 F.3d 1355, 1360 (5th Cir. 1994). Berthoff did not seek
relief from the district court's judgment pursuant to Fed. R. Civ.
P. 60(b) or any other rule. See Acevedo-Villalobos v. Hernandez,
22 F.3d 384, 389 (1st Cir. 1994) ("Unless post-judgment relief is
granted [under Rule 59 or 60], the district court lacks power to
grant a motion to amend the complaint under Rule 15(a).").
Affirmed.
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