The second exception is also inapplicable here. Under Teague and its progeny, "watershed rules" are those which "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding."Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311) (emphasis in original); see also Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651 (S.D.N.Y. Mar. 21, 2002) (holding Apprendi cannot be considered a "watershed rule" of criminal procedure and refusing to apply the rule retroactively on collateral review); Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, *2 (S.D.N.Y. Jan. 11, 2002) (holding Apprendi does not apply retroactively to cases on collateral review); Rivera v. United States, 136 F. Supp.2d 263 (S.D.N.Y. 2001). In fact, no rule yet tested against the high standard set forth in Teague has been applied retroactively.
Considering that Apprendi does not fall under either exception set forth by the Supreme Court in Teague, it is not retroactively applicable to cases on collateral review. See In re Turner, 267 F.3d 225, 231 (3d Cir. 2001); United States v. Sanders, 247 F.3d 139, 148 (4th Cir. 2001); United States v. Moth, 252 F.3d 993 (8th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000); McCoy v. United States, 266 F.3d 1245, 1257 (11th Cir. 2002); Garcia v. United States, 2002 WL 42888, at *1 (S.D.N.Y. 2002); Saldarriaga v. United States, 2002 WL 449651, at *6 (S.D.N.Y. 2002); Moore v. White, 188 F. Supp.2d 411, 416 (S.D.N.Y. 2002). Since petitioner may not invoke § 2255(3) to create a new period of limitation, his motion is time-barred.
Furthermore, courts in the Southern District of New York have held that the Apprendi rule does not satisfy either Teague exception, and therefore is inapplicable retroactively to cases on collateral review. See Acevedo v. United States, 00 Civ. 9696, 2002 U.S. Dist. LEXIS 12006, at *5-*8 (S.D.N.Y. July 3, 2002) (holding that Apprendi does not apply on collateral review); Parrado, 2002 U.S. Dist. LEXIS 11325, at *8 (same); Raulston, 2002 U.S. Dist LEXIS 7767, at *13-*14 (same); Fiumara v. United States, 198 F. Supp.2d 427, 431 and n. 5 (S.D.N.Y. Apr. 3, 2002) (Sprizzo, J.) (same); Saldarriaga v. United States, No. 99 Civ. 4487, 2002 U.S. Dist. LEXIS 4781, at *18 (S.D.N.Y. Mar. 21, 2002) (same); Garcia v. United States, No. 01 Civ. 7188, 2002 U.S. Dist. LEXIS 340, at *5-*6 (S.D.N.Y. Jan. 11, 2002) (same). But see Rosario, 2001 U.S. Dist. LEXIS 13384, at *8 (holding the Apprendi rule is substantive and therefore retroactive).
In addition, at least four judges in this District have reached the same conclusion. See Raulston, 2002 WL 826810, at *4-*5; Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, at *1 (S.D.N.Y. Jan. 11, 2002) ("Apprendi should not be applied retroactively on collateral review."); Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651, at *6 (S.D.N.Y. Mar. 21 2002) (same); Moore v. White, 188 F. Supp.2d 411, 416 (S.D.N.Y. 2002) (same).But see Rosario v. United States, No. 00 Civ. 9295, 2001 WL 1006641, at *2 (S.D.N.Y. Aug. 30, 2001) (concluding that Apprendi applies retroactively on collateral review, because the "primary feature of the new rule is its substantive construction of federal criminal statutes"). Numerous courts in other districts have held the same.
Moreover, Courts in the Southern District of New York have largely held that the Apprendi holding does not fit either of the two exceptions set forth in Teague, and therefore is not retroactively applicable on collateral review. See Raulston, 2002 WL 826810, at *4 (holding that Apprendi does not apply on collateral review); Fiumara v. United States, 198 F. Supp.2d 427, 431 n. 5 (S.D.N.Y. Apr. 3, 2002) (Sprizzo, J.) (same); Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651, at *5 (S.D.N.Y. Mar. 21, 2002) (same); Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, at *1 (S.D.N.Y. Jan. 11, 2002) (same). But see Rosario, 2001 WL 1006641, at *2 (ruling that Apprendi is substantive in nature and therefore retroactive).
Although this Circuit has not yet ruled on the issue of whether Apprendi can be applied retroactively to initial § 2255 motions, "several recent cases from this district indicate that Apprendi does not apply retroactively to initial § 2255 [motions]." Arroyo, 2002 WL 662892, at *3 (citing Fiumara v. United States, No. 00 Civ. 0408, 2002 WL 519732, at *3 n. 5 (S.D.N.Y. Apr. 4, 2002)); see also Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651, at *5-6 (S.D.N.Y. Mar. 21, 2002); Garcia v. United States, 01 Civ. 7188, 2002 WL 42888, at *1-2 (S.D.N.Y. Jan. 11, 2002)); Panton, 2002 WL 655205, at *3;Raulston, 2002 WL 826810, at *5. Additionally, every circuit that has ruled on this issue has held that Apprendi does not apply retroactively to cases on collateral review.
Under Teague and its progeny, "watershed rules" are those which "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311) (emphasis in original); see also Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651 (S.D.N.Y. March 21, 2002) (holding Apprendi cannot be considered a watershed rule" of criminal procedure and refusing to apply the rule retroactively on collateral review); Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, *2 (S.D.N.Y. Jan. 11, 2002) (holding Apprendi does not apply retroactively to cases on collateral review); Rivera v. United States, 136 F. Supp.2d 263 (S.D.N.Y. 2001). In fact, it is extremely rare for a case to meet the high standard set forth in Teague.
Although the Second Circuit has not resolved the issue, Forbes v. United States, 262 F.3d 143, 146 (2d Cir. 2001), the weight of authority from other circuits and lower courts suggests that the new constitutional rule set forth in Apprendi does not apply retroactively to cases on collateral review. E.g., United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001), cert. denied, 122 S.Ct. 848 (2002); United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir.), cert. denied, 122 S.Ct. 573 (2001); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000); In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000); Saldarriaga v. United States, No. 99 Civ. 4487 (WK), 2002 WL 449651, at *5-6 (S.D.N.Y. Mar. 21, 2002); Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, at *1 (S.D.N.Y. Jan. 11, 2002). Because movant suggests no other, later date from which to calculate the running of the limitations period, the Court must conclude that the present motion is untimely.