Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1771

Filed 04/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ William Sablan's Reply To The Government's Response To Wm DP-27 Regarding Striking Conviction Under 18 U.S.C. § 924(h) __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Strike Conviction Under 18 U.S.C. § 924(h) From The Government's NOI As A Basis For The Alleged Statutory Aggravating Factor Set Out In 18 U.S.C. § 3592(c)(2) [Wm DP-27]. The government's response is Document # 1752. 1. The government notes that a defendant in a federal sentencing proceeding under 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"), may not collaterally attack the validity of previous state convictions alleged in support his
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Case 1:00-cr-00531-WYD

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sentence enhancement, except when the convictions were obtained in violation of the defendant's right to counsel. Custis v. United States, 511 U.S. 485 (1994). Nor can a defendant, once having been sentenced under the ACCA, use proceedings under 28 U.S.C. § 2255 to challenge prior convictions if those convictions are no longer open to direct or collateral attack in their own right. Daniels v. United States, 532 U.S. 374 (2001).1 These limitations were justified by the ease in which they could be administered ("failure to appoint counsel at all will generally appear from the judgment roll itself ", Custis, 511 U.S. at 496), and to promote finality of judgements (inroads into which "tend to undermine confidence in the integrity of our procedures", id. at 497). (Response at 3). 2. Similarly, the Tenth Circuit has held that prior convictions may not be collaterally attacked in the context of sentencing under the career offender provisions of the federal sentencing guidelines, United States v. Garcia, 42 F.3d 573 (10th Cir. 1994), nor may they be challenged for purposes of enhanced sentencing under 8 U.S.C. § 1326, which prohibits reentry after deportation and conviction of an aggravated felony. United States v. Delacruz-Soto, 414 F.3d 1158

In the case of an enhanced state sentence, the Court held in Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001), that a habeas petitioner could not use 28 U.S.C. § 2254 proceedings to challenge his enhanced sentence on the ground that it was based on an allegedly unconstitutional prior conviction for which the petitioner was no longer in custody.
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(2005). 3. William has no quarrel with the above-described aspects of the government's response. The government, however, goes on to state that "several courts have also applied this rule to challenges against prior convictions used as statutory aggravating factors in federal death penalty cases." (Id.). This statement is inaccurate and dangerously misleading. 4. The two cases it cites are United States v. Chong, 98 F. Supp.2d 1110, 1121 (D. Hawaii 1999) and United States v. Rodriguez, 2006 WL 487117, *3 (D.N.D. Feb. 28, 2006). Neither directly address the question of whether a Federal Death Penalty Act ("FDPA") defendant can challenge the legal validity of prior convictions alleged as statutory aggravating factors. Instead, they discussed the extent to which the parties could address the underlying circumstances of prior convictions before the jury. (See Wm DP-19). Both district courts concluded that the parties would not be permitted to "relitigate" the case before the jury, the Chong court stating it was imposing the limitation "because of concerns of waste of time, cumulative evidence, and confusion of the issues." Chong, 98 Fed. Supp.2d at 1121. In view of this context, the government's claim that "[p]rotecting the finality of judgments is equally important in the context of death penalty proceedings" rings false. (Response at 4). It is the finality of death, not
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prior judgments, that shapes capital proceedings.2 5. Under the FDPA, statutory aggravating factors serve the constitutionally crucial function of directing and limiting the jury's discretion so as to minimize the risk of wholly arbitrary and capricious action. Surely, Congress intended that the use of prior convictions as statutory aggravating factors be confined to the use of lawful convictions. See Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 477 (Frankfurter, J., dissenting) (there is a "strong presumption . . . that Congress legislated in accordance with the Constitution"). 6. In addition to United States v. McLemore, 28 F.3d 1160, 1163-64 (11th Cir. 1994), William cites United States v. Acosta, 124 F.Supp.2d 631 (E.D. Wis. 2000) in support of his contention that the underlying crime of violence required for a valid conviction under 18 U.S.C. § 924(h) must be federal crime of violence. WHEREFORE, William respectfully requests the Court to strike the alleged conviction of 18 U.S.C. § 924(h) from the government's Notice of Intent to Seek the Death Penalty. Dated: April 21, 2006

As noted earlier, promoting the finality of judgments is a means of ensuring the public's confidence in the integrity of judicial procedures. However, to allow the government to use invalid prior convictions in support of a defendant eligibility for a death sentence would do far more to undermine the public's confidence in capital proceedings than allowing the defendant to challenge their legality would.
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Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on April 21, 2006, I electronically filed the foregoing William Sablan's Reply To The Government's Response To Wm DP-27 Regarding Striking Conviction Under 18 U.S.C. § 924(h) with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: s/Susan L. Foreman Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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