Opinion
Nos. 3:97-CR-342-M, 3:99-CV-2823-M
February 12, 2002
SUPPLEMENTAL FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE UPON RECOMMITMENT
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, Defendant's § 2255 motion has been recommitted to the United States Magistrate Judge for reconsideration of Defendant's claim pursuant to Apprendi v. New Jersey, in light of the decision of the Fifth Circuit Court of Appeals in United States v. Clark, 260 F.3d 382 (5th Cir. 2001). The supplemental findings, conclusions and recommendation of the Magistrate Judge address that issue.
530 U.S. 466, 490 (2000).
FINDINGS AND CONCLUSIONS
A jury convicted Movant of Conspiracy to Possess Controlled Substances in violation of 21 U.S.C. § 846, and the trial court sentenced him to 140 months of imprisonment, a five-year term of supervised release, and a special assessment of $100. Movant's conviction was affirmed by the United States Court of Appeals for the Fifth Circuit. Movant amended his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 to raise an Apprendi claim. He urged the amount of drugs should have been decided by the jury and proved beyond a reasonable doubt. The United States Supreme Court held in Apprendi that, with the exception of prior convictions, any fact that increases the penalty for a crime beyond the maximum statutory penalty must be submitted to the jury and proven beyond a reasonable doubt. Apprendi, 530 U.S. at 490.
In the July 11, 2001 Amended Findings, Conclusions and Recommendation in this case, this Court reasoned that because Movant's conviction became final before Apprendi was decided, he is precluded from raising it in this collateral attack on his sentence unless Apprendi is retroactive. The Court concluded that Apprendi announced a new rule of criminal procedure that is barred from retroactive application on collateral review by the doctrine of Teague v. Lane, 489 U.S. 288 (1989). In a July 26, 2001 decision, the Fifth Circuit Court of Appeals remanded the Clark case to the District Court to decide whether Apprendi applies retroactively in an initial § 2255 motion. United States v. Clark, 260 F.3d 382, 382 (5th Cir. 2001).
The United States Supreme Court has indicated that the Teague retroactivity decision is to be made as a "threshold matter" and should be addressed "before considering the merits of [a] claim." See, e.g., Penry v. Lynaugh, 492 U.S. 302, 329 (1989); Caspari v. Bohlen, 510 U.S. 383, 389 (1994); Lambrix v. Singletary, 520 U.S. 518, 524 (1997) (quoting Penry and Caspari).
Even if the Court reached the merits, Apprendi's only possible applicability would be to consider whether Movant would have been entitled to a reduction of two years in the period of supervised release to which the trial court sentenced him. The indictment in this case charged Movant with conspiracy to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1), and the jury found beyond a reasonable doubt that he violated this statute. The minimum statutory range for this offense was zero to twenty years. See 21 U.S.C. § 841(a)(1). Movant's term of imprisonment is not greater than the maximum term allowable by statute when the amount of cocaine is not proved to the jury beyond a reasonable doubt; hence Apprendi would not be applicable to reduce Movant's term of imprisonment. Apprendi's only conceivable application might be to reduce Movant's term of supervised release by two years. See 21 U.S.C. § 841(b)(1)(C); cf. 18 U.S.C. § 3583.
The Fifth Circuit has ruled that Apprendi cannot be applied retroactively to a successive § 2255 motion. In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). For a successive § 2255 motion to be entertained based upon a new rule of constitutional law, the United States Supreme Court must have made the new law retroactive on collateral review. See Tyler v. Cain, 121 S.Ct. 2478 (2001) where the Supreme Court stated:
The only way the Supreme Court can, by itself, "lay out and construct" a rule's retroactive effect, or "cause" that effect "to exist, occur, or appear," is through a holding. The Supreme Court does not "ma[k]e" a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower court (or perhaps by a combination of courts), not by the Supreme Court. (footnote omitted). We thus conclude that a new rule is not "made retroactive to cases on collateral review" unless the Supreme Court holds it to be retroactive. (footnote omitted).
121 S.Ct. at 2482. Because the instant case involves Movant's initial § 2255 motion, neither Tatum nor Tyler is dispositive.
In determining whether a new rule is retroactive, a court must first establish whether the rule is substantive or procedural in nature. Teague, 489 U.S. at 289. If the rule is substantive, then it applies retroactively. Davis v. United States, 417 U.S. 333, 346-47 (1974). If the rule is procedural, then its retroactive application is governed by the test set forth in Teague, 489 U.S. at 289. Judge Parker dissented from the Fifth Circuit's decision to remand Clark to the District Court. Judge Parker explained that he would treat Apprendi as a substantive rule that applies retroactively on collateral review. Clark, 260 F.3d at 383-389 (Parker, J. dissenting). The panel's decision in Clark does not suggest that the District Court reach a particular result, and to date, the Fifth Circuit has not decided whether Apprendi is retroactively applicable in an initial § 2255 motion. Clark, 260 F.3d at 383.
Movant contends the Court erred by considering an Apprendi error to be similar to the error the United States Supreme Court found in United States v. Gaudin, rather than the kind of fundamental error recognized in Cage v. Louisiana and Victor v. Nebraska. In Cage, a direct appeal, the Supreme Court held that a reasonable doubt instruction violated the Due Process Clause because, when read "as a whole," it "equated a reasonable doubt with a `grave uncertainty' and an `actual substantial doubt,' and stated that what was required was a `moral certainty' that the defendant was guilty." See Cage, 111 S.Ct. at 329. The Court found that the combination of these terms, given their common meaning, resulted in an instruction pursuant to which a reasonable juror could find guilt based on a lesser degree of proof than required by the Due Process Clause. See Cage, 111 S.Ct. at 330. The Supreme Court subsequently refined Cage but left its holding essentially intact in Estelle v. McGuire. It clarified that the standard for reviewing jury instructions in challenges to state criminal convictions is not whether an instruction could have been applied in an unconstitutional manner, as the Cage Court stated, but whether there is a "reasonable likelihood" that a jury in fact applied the challenged instruction unconstitutionally. See McGuire, 112 S.Ct. at 482 n. 4 (citations omitted). In Victor v. Nebraska, the Supreme Court upheld two other reasonable doubt instructions that contained some, but not all, of the three suspect phrases in Cage. Victor, 114 S.Ct. at 1242. The Court reasoned that the phrases "moral certainty" and "substantial doubt" did not impermissibly lower the government's burden of proof because the context of the instructions clarified the meaning of the terms as being congruent with reasonable doubt. See Victor, 114S.Ct. at 1248, 1249-1251. In pre-AEDPA cases, the Fifth Circuit Court of Appeals held that Cage-Victor error falls within the second Teague exception and therefore applies retroactively on collateral review. See Humphrey v. Cain, 138 F.3d 552, 553 (5th Cir. 1998) (en bane) [hereinafter Humphrey II], adopting reasoning of Humphrey v. Cain, 120 F.3d 526, 529 (5th Cir. 1997) [hereinafter Humphrey I]. The Humphrey I panel based this conclusion on the Supreme Court's opinion in Sullivan v. Louisiana, 508 U.S. 275 (1993), which held on direct appeal that Cage-Victor error was a "structural defect" and therefore not subject to harmless error analysis. See Humphrey I, 120 F.3d at 529. Because Sullivan found that conviction based on a constitutionally defective reasonable doubt instruction takes away a basic protection "without which a criminal trial cannot reliably serve its function," Humphrey I held that the second Teague exception applied to Cage-Victor error. See id. (citations omitted). However, the Fifth Circuit Court of Appeals has since declined to apply the Cage-Victor rule retroactively in a post-AEDPA petition brought pursuant to 28 U.S.C. § 2254. Williams v. Cain, 229 F.3d 468, 471 (5th Cir. 2000).
515 U.S. 506 (1995). In the Amended Findings, this Court noted that the decision of whether Apprendi is Teague-barred is similar to the question the Fifth Circuit Court of Appeals considered in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). The question in Shunk was whether the United States Supreme Court's decision in Gaudin was barred from application on collateral review by the Teague doctrine. The United States Supreme Court held in Gaudin that the materiality of false statements prosecuted under 18 U.S.C. § 1001 was an element of the offense which had to be presented to and decided by a jury, rather than a judge. Gaudin, 515 U.S. at 510-11. The Fifth Circuit Court of Appeals rejected the Shunks' argument that Gaudin fit within the second Teague exception, noting that "one can easily envision a system of `ordered liberty' in which certain elements of the crime can or must be proved to a judge, not a jury." Shunk, 113 F.3d at 36.
498 U.S. 39, 41 (1990) ( per curiam), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62 (1991).
511 U.S. 1583 (1994). Movant also relies upon Cruz v. New York, 481 U.S. 186, 193 (1987), claiming that the error in his case is similar to that in Cruz. In Cruz, the Supreme Court held that a non-testifying co-defendant's confession generally is not admissible against another defendant because it presents a serious risk that the issue of guilt or innocence may not have been reliably determined. Here, the jury's failure to consider the exact quantity of drugs does not present a serious risk to the reliability of the verdict.
The instruction in Cage read in relevant part:
"If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. . . . It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty." Cage, Ill S.Ct. at 329 (emphasis in original).
On remand from the United States Supreme Court, the Louisiana Supreme Court found that the instructional error was harmless, and affirmed Cage's conviction and sentence. State v. Cage, 583 So.2d 1125 (La.), cert. denied, 502 U.S. 874 (1991).
511 U.S. 1 (1994). Victor involved two cases, one on direct appeal and another on appeal from the denial of state habeas relief.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) heightened the standard of review for challenging state court convictions on habeas corpus review in federal court. See 28 U.S.C. § 2254(d)(1). A person in custody pursuant to the judgment of a state court can no longer rely upon United States Supreme court cases decided after his conviction became final. See Williams v. Taylor, 529 U.S. 362 (2000).
The Second, Fourth, and Eleventh Circuits have also held, in pre-AEDPA cases, that Cage and Victor apply retroactively on habeas review. See Gaines v. Kelly, 202 F.3d 598, 605 (2d Cir. 2000) (citing Humphrey II with approval); Adams v. Aiken, 41 F.3d 175, 179 (4th Cir. 1994), cert. denied, 515 U.S. 1124, 115 S.Ct. 2281, 132 L.Ed.2d 284 (1995); Nutter v. White, 39 F.3d 1154, 1157-58 (11th Cir. 1994).
Both Humphrey opinions were careful to point out that they did not consider what effect, if any, AEDPA might have on the continued retroactivity of the Cage-Victor rule. See Humphrey II, 138 F.3d at 553 n. 1; Humphrey I, 120 F.3d at 529. The Humphrey I panel noted that a finding that Cage and Victor apply retroactively on collateral review might not have a very significant impact in a post-AEDPA regime because AEDPA's "new barriers," such as the oneyear statute of limitations, restrictions on successive petitions, and heightened standard of review under section 2254(d)(1), might "shut out future petitioners in Humphrey's situation." See Humphrey I, 120 F.3d at 529. It added that "[o]f course, we do not have occasion to measure how high those barriers might be." Id.
The United States Supreme Court recognized in Teague that the "[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system." Teague, 489 U.S. at 309 (plurality opinion) (citing Friendly, Is INNOCENCE IRRELEVANT? COLLATERAL ATTACKS ON CRIMINAL ON CRIMINAL JUDGMENTS, 38 U. Chi. L. Rev. 12, 150 (1970)). To fall within the second Teague exception, a new rule must satisfy a two-pronged test: (1) it must relate to the accuracy of the conviction; and (2) it must alter a court's understanding of the "bedrock procedural elements" that are essential to the fundamental fairness of the proceeding. Sawyer v. Smith, 497 U.S. 227, 241 (1990). In this case, the jury instruction, unlike that in Cage-Victor, was not confusing and misleading. No danger existed here that the instruction would cause the jury to convict an innocent person of conspiring to possess cocaine with the intent to distribute it. The Court is not persuaded that the trial court's failure to instruct the jury to find the exact quantity of drugs beyond a reasonable doubt affected the accuracy of the conviction. Nor is the Court convinced that the error meets the second prong of the Teague exception for watershed rules of criminal procedure that would render a defendant's trial fundamentally unfair.
The Court is not convinced that Apprendi announced a rule of substantive law. Neither the United States Supreme Court nor any circuit court has held Apprendi's rule to be substantive. Rather, the circuit courts who have considered Apprendi's applicability on collateral review have held that Apprendi announced a new rule of criminal procedure which is Teague-barred from retroactive application on collateral review. See, e.g., McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001) (holding that the new rule of criminal procedure announced by the United States Supreme Court in Apprendi does not fall within either exception to Teague's non-retroactivity standard and, therefore, concluding that Apprendi does not apply retroactively on initial collateral review); Dukes v. United States, 255 F.3d 912, 913 (8th Cir. 2001) (holding Apprendi presented a new rule of constitutional law that was not of "watershed" magnitude and thus a federal prisoner could not raise an Apprendi claim on collateral review); United States v. Moss, 252 F.3d 993, 997 (8th Cir.), cert denied, 122 S.Ct. 848 (2001) (relying on the Teague bar); Jarrett v. United States, 266 F.3d 789, 791 (8th Cir. 2001) (holding the general rule of nonretroactivity in Teague conclusively bars a petitioner whose conviction became final before Apprendi from raising an Apprendi claim in an initial § 2255 petition); United States v. Sanders, 247 F.3d 139, 146 (4th Cir.), cert. denied 122 S.Ct. 573 (2001) (holding the Apprendi decision does not rise to the level of a watershed rule of criminal procedure and thus does not come within an exception to the Teague rule barring retroactive application of a new rule of criminal procedure); Burch v. Corcoran, 273 F.3d 577, 584 (4th Cir. 2001) (same); Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000) (invoking the Teague bar in declining to apply Apprendi to a case in which the petitioner complained of discrepancies between an information and the jury instructions).
The overwhelming majority of district courts, including the Northern District of Texas, have held, both pre- Clark and post- Clark that Apprendi announced a new rule of criminal procedure that is not of watershed magnitude and that is Teague-barred from retroactive application in an initial motion brought pursuant to 28 U.S.C. § 2255. See, e.g., United States v. Lovell, Nos. 3-98-CR-0344-R, 3-00-CV-1866-R, 2001 WL 1076124 (N.D.Tex. September 10, 2001) (noting that Clark does not dictate a particular result and holding that Teague bars collateral review of Apprendi claims); United States v. McNairy, Nos. 3:99-CR-364-P, 3:01-CV-0355-P, 2001 WL 649684, at *3 (N.D. Tex. June 8, 2001) (citing cases holding that Teague bars collateral review of Apprendi claims); United States v. Jones, Nos. 3-98-CR-0303-P, 3-01-CV-0050-P, 2001 WL 493171, at *2 (N.D.Tex. May 8, 2001) (same). Neither Movant's objection nor the Fifth Circuit Court of Appeal's decision in Clark provides any reason for this Court to alter its Amended Findings, Conclusions and Recommendation entered July 11, 2001.
RECOMMENDATION
After further consideration of Movant's Apprendi claim in light of his objections and the Clark decision, the Court recommends that the District Court adopt its July 11, 2001 Amended Findings, Conclusions, and Recommendation and these Supplemental Findings, Conclusions and Recommendation with respect to Petitioner's § 2255 motion and deny the requested relief.