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holding that Apprendi is not retroactively applicable on collateral review
Summary of this case from Wiser v. PrattOpinion
Civil Action No. 3:00-CV-2042-M
March 6, 2002
MEMORANDUM ORDER AND OPINION
On September 18, 2000, Petitioner filed a Motion to Vacate Conviction and Sentence Pursuant to 28 U.S.C. § 2255. The Court referred the Motion to U.S. Magistrate Judge William F. Sanderson, Jr., who issued Findings, Conclusions, and Recommendations on March 12, 2001, and Supplemental Findings, Conclusions, and Recommendations on March 29, 2001. After reviewing the Findings, Conclusions, and Recommendations, as well as the parties' briefs and other papers in the case, and after considering the parties' arguments presented at a hearing on October 23, 2001, the Court accepts that portion of the Original and Supplemental Findings, Conclusions, and Recommendations of the Magistrate Judge with respect to the Magistrate Judge's determination that Petitioner's ineffectiveness assistance claims should be denied. The Court also accepts the Magistrate Judge's conclusion that Petitioner's Castillo and Apprendi claims are unavailing, but does so on the independent basis that, as this Court has recently found, such claims may not be brought in an initial § 2255 action.
See Amended Findings, Conclusions, and Recommendations of the Magistrate Judge at 12-14, United States v. Perez, slip op., No. 3:97-CR-0342 (N.D. Tex. July 11, 2001) (finding Apprendi to be nonretroactive); Supplemental Findings, Conclusions, and Recommendations of the Magistrate Judge, United States v. Perez, slip op., No. 3:97-CR-0342 (N.D. Tex. Feb. 12, 2002) (analyzing whether the Fifth Circuit's decision in United States v. Clark, 260 F.3d 382 (5th Cir. 2001), impacted the conclusion that Apprendi was nonretroactive, and concluding that it did not); and Order Accepting the Magistrate Judge's Findings, Conclusions, and Recommendations, United States v. Perez, slip op., No. 3:97-CR-0342 (N.D. Tex. Mar. 5, 2002) (accepting the Magistrate Judge's Amended and Supplemental Findings, Conclusions, and Recommendations). These documents are attached to this Order as Appendices A, B, and C, respectively.
In United States v. Perez, this Court determined that the rule announced in Apprendi was a new procedural, rather than substantive, rule of law, and as such, to be invoked in a petition for writ of habeas corpus, it must fall into one of the two exceptions to nonretroactivity announced in Teague v. Lane, 489 U.S. 288 (1989). This Court further found that as Apprendi neither "place[d] certain kinds of conduct beyond the power of the government to proscribe or require[d] the observance of procedures that are `implicit in the concept of ordered liberty,'" it did not fall within either exception to Teague's nonretroactivity presumption. This Court rejected the inclusion of Apprendi in the second Teague exception based, in part, upon the Fifth Circuit's interpretation in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997), of the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506 (1995). In Gaudin, the Supreme Court found that the materiality of false statements prosecuted under 18 U.S.C. § 1001 was an element of the offense which had to be proved to a jury beyond a reasonable doubt, instead of to a judge by a preponderance of the evidence. The Fifth Circuit in Shunk found the Gaudin rule, which is substantially similar to the rule announced in Apprendi, to be a new procedural rule that did not constitute a watershed principle subject to inclusion in the "ordered liberty" exception to Teague nonretroactivity.
See Supplemental Findings, Conclusions, and Recommendations at 3, United States v. Perez, slip op., No. 3:97-CR-0342 (N.D. Tex. Feb. 12, 2002) (accepted by this Court on March 5, 2002).
Amended Findings, Conclusions, and Recommendations of the Magistrate Judge at 13 n. 2, United States v. Perez, slip op., No. 3:97-CR-0342 (N.D. Tex. July 11, 2001) (quoting Teague, 489 U.S. at 307) (accepted by this Court on March 5, 2002).
On the basis of this Court's determination in Perez, the Court rejects Perkins's Apprendi and Castillo claims. Although Perez did not specifically address the retroactivity of Castillo, the Court concludes that, because Castillo stands for a rule of law virtually identical to that expressed by the Supreme Court in Apprendi, the Court's determination that Apprendi is nonretroactive is equally applicable to Castillo. Moreover, at least two courts — one within this Circuit — have expressly found that both Apprendi and Castillo are nonretroactive.
In Castillo v. United States, 530 U.S. 120 (2000), the Supreme Court confronted the issue of whether the sentencing enhancement provisions of 28 U.S.C. § 924 (c)(1), which provided for heightened mandatory sentences if the firearm used in the crime was a short-barreled gun or semiautomatic assault weapon, constituted elements of the crime that must have been proven to a jury beyond a reasonable doubt. The Court concluded that the enhancement provisions were elements of a separate offense that must have been proven to a jury beyond a reasonable doubt for the sentencing court to have applied the sentence enhancements mandated in the statute. Id. at 121. Just three weeks after issuing Castillo, the Court released Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the Court expanded the principle enunciated in Castillo by holding that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490.
Gonzales v. United States, 159 F. Supp.2d 555 (S.D. Tex. 2001); Parham v. United States, No. S-00-2869, 2000 WL 1466102 (D. Md. Sept. 25, 2000).
In conclusion, after accepting Magistrate Judge Sanderson's Findings, Conclusions, and Recommendations that Petitioner's ineffectiveness claim should be denied, and after concluding, on the basis of the Court's decision in United States v. Perez, that Apprendi and Castillo cannot form the basis of a cognizable claim in an initial § 2255 petition, the Court finds that all requests for relief in Perkins's § 2255 petition must be DENIED.
SO ORDERED.