IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. 94-017 (CRR) v. :
:
:
xxxxxxxxxxxxx, :
:
Defendant. :
REPLY TO GOVERNMENT'S OPPOSITION TO
MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. 2255
Defendant xxxxxxxx, through counsel, respectfully
replies to the Government's Opposition to Motion to Vacate, Set Aside or Correct Sentence as follows:
The government's argument that two of Mr. xxxxxxx's claims, that there was insufficient evidence to support a plea to possession with intent to distribute crack cocaine, and that crack cocaine was never properly scheduled as a controlled substance, are procedurally barred is incorrect. The decisions in United States v. James,78 F.3d 851 (3d Cir. 1996) and United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994) interpreted the reach of the statute prohibiting offenses involving crack cocaine. Therefore, under United States v. McKie, 73 F.3d 1149 (D.C. Cir. 1996), the decisions should be applied retroactively on habeas review of a conviction under that statute. See also, Davis v. United States, 417 U.S. 333, 341-42 (1974).
Even if Mr. xxxxxxx had procedurally defaulted in not raising these claims earlier, he can show clear prejudice in that he was convicted of the crime of possession with intent to distribute crack cocaine without the government proving all the elements of the crime. The government never proved that the substance which Mr. xxxxxxx admitted to possessing was in fact cocaine base, within the definitions of James and Munoz-Realpe.
Likewise, there was cause for any procedural default because Mr. xxxxxxx's claims had no reasonable basis in existing law at the time of the default. See, Reed v. Ross, 468 U.S. 1, 14-16 (1984) (finding claim novel because default occurred when counsel had no reasonable basis upon to which to formulate the claim). Mr. xxxxxxx's plea of guilty was entered on March 30, 1994, before either of the decisions upon which he relies for relief.
Moreover, any alleged procedural default would be excused because Mr. xxxxxxx can demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. See, Coleman v. Thompson, 11 S. Ct. 2546, 2565 (1991). Although the Supreme Court has not provided a definitive interpretation of the term miscarriage of justice, it has made clear that the exception applies to cases of actual innocence. Herrera v. Collins, 113 S.Ct. 853, 862 (1993). The two leading commentators on federal habeas practice and procedure indicate that the actual innocence tests is somewhat of a misnomer in that it focuses on legal innocence, rather than factual innocence. JAMES S. LIEBMAN AND RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE, Sec. 26.4, at 108-09 (2d ed. Supp. 1995). See also, United States v. Maybeck, 23 F.3d 888, 893 (4th Cir. 1994). Therefore, a showing by Mr. xxxxxxx that the plea was entered without sufficient proof of an essential element of the offense suffices for a showing of legal innocence.
WHEREFORE, for these reasons, and those previously set forth, Mr. xxxxxxx requests the court to grant his Motion to Vacate, Set Aside or Correct his sentence.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500