United States v. Andre Swinton

of America STATES UNITED SWINTON, Appellant.

Andre

No. 01-1004. Appeals,

United States Court

Third Circuit. Third Circuit LAR

Submitted Under

34.1(a) Dec. 23, 2003.

Filed June

I.

BACKGROUND Appellant Andre charged Swinton was drug with various offenses in a six-count superseding indictment returned guilty He was found after a trial of conspiracy one count of to distribute more fifty grams (crack), than of cocaine base (Count One), § violation of 21 U.S.C. one count of fifty distribution of more than (crack) grams 1,000 of cocaine base within school, of a feet in violation of 21 U.S.C. (Count Three), § 860 two counts of distri- bution of fifty grams more than of cocaine (crack), base in violation of 21 U.S.C. Rudovsky, Kairys, Rudovsky, David Ep- 841(a)(1) (Counts § Five), Four and and PA, Messing, stein & Philadelphia, Ap- for against retaliation witness/informant pellant. (Count Six). § violation of 18 U.S.C. Meehan, Patrick L. United States Attor- The District Court sentenced Swinton to ney, Magid, Deputy Laurie United One, States 324 months incarceration on Counts Attorney Policy Four, for Appeals, Craig Three, Five, and and and 120 months Margolis, Assistant Six, United States Attor- incarceration on Count all terms Zauzmer, ney, Robert A. Assistant United run concurrently, years followed ten Attorney, Appellate Counsel, States Senior supervised release. It imposed also Reed, K. $5,000 Robert Office of United special States fine and a assessment. $250 PA, Attorney, Philadelphia, Appellee. for appeal, On this court affirmed judg-

ment and sentence. United States v. SLOVITER, McKEE, Before Swinton, (3d Cir.1998) (un- 151 F.3d 1027 ROSENN, Judges. Circuit decision). published table The United

States Court denied Swinton’s petition for a writ certiorari on October OPINION OF THE COURT 1998. Swinton v. United SLOVITER, Judge. Circuit L.Ed.2d 113 (1998). presented The issue appeal

whether the law announced August year On within a in Apprendi case, v. New Jer final judgment in his Swinton filed sey, pro vacate, se motion to set aside or cor- applies retroactively to rect pursuant his sentence to 28 U.S.C. cases on collateral § review. The courts of raising various ineffective assis- appeals that have considered the issue However, tance of counsel claims. uniformly

have held that does properly Swinton did not complete req- apply retroactively to cases on collater uisite filing motion, forms for al review. We also so hold. See also District Court him ordered to do so within Jenkins, thirty days. 333 F.3d 151 Swinton did file the neces- Cir.2003). sary 8, 1999, forms on October but once pro- made retroactive to cases on requisite to follow again he failed review, accordingly Sup listing grounds his collateral Instead of cedure! plemental form as re- Motion was time-barred under § 2255 motion on the relief rules, provision referred the statute of limitations quired by the local Swinton Also, argued attached memorandum. if court to an even the motion prendi applicable, District Court dismissed Swinton’s claim were 29,1999, prejudice. On November District did without would fail because the error, weeks after only slightly plain sentencing more than two in not commit Swin dismissal, Swinton drug quantity the District Court’s ton based on a that was setting § 2255 motion forth supported by undisputed filed another credible and evi of counsel claims his ineffective assistance dence. 2, 2000, and, August on the motion form The District Court held the Novem- the Govern- the District Court ordered untimely § ber 1999 2255 motion was response. to file a ment Swinton filed it more than one 8, 2000, before the Gov September On year judgment after his of conviction be- a response, Swinton filed ernment filed its alternative, came final. In the it ruled “Supplement to Petition document titled that Swinton’s ineffective assistance of Vacate, Aside or Motion to Set Cor er’s claims lacked merit. The District counsel Pursuant U.S.C. rect Sentence Court also ruled Swinton’s Supple- Motion”) (the in “Supplemental § 2255” raising his claim mental Motion the District Court to allow

which he moved § 2255 motion is a second or successive an additional issue into incorporate him to this court requires authorization from § claimed his 2255 motion. Swinton in District before it can be filed Court. jury trial process and a rights his to due Supplemental It denied the Motion without was in violated because were prejudice and with leave to file the neces- the Government need not structed sary motion in this court. Swinton filed a identity quantity and prove the appeal request a for a timely notice of Although in his case. drugs involved this court. appealability certificate of -with filing, in his this claim was mentioned appealability a granted certificate We in Supreme on the Court’s decision based following issues: limited to the 466, 120 Jersey, v. New 2348, 147 (2000), decided S.Ct. (1) “made language ret [W]hether the. months ear less than three June on col roactively applicable to cases held that lier. the Court of limi lateral review” the statute conviction, prior than fact of a “[o]ther tations set forth 28 U.S.C. penalty for a any fact that increases 2255(3) distinguishable from the is statutory prescribed crime to cases language “made retroactive jury, maximum must be submitted to review the on collateral Id. at proved beyond reasonable doubt.” for autho requirement in the Court” 490, 120 rization to file a second or successive motion, as that lan Section response The Government filed Tyler motion, guage was discussed contending § 2255 that there was Cain, 656, 121 assistance U.S. no merit to Swinton’s ineffective (2001) and In re: 150 L.Ed.2d 632 fur- of counsel claims. The Government Turner, 227-28 Supplemental argued ther that the Motion Cir.2001). Apprendi has should be denied because

(2)If distinguishable, language making vented from motion action; opinion Ap governmental Court’s such Jersey, v. New

prendi (3) the date on the right asserted initially recognized by the Su- (2000), retroactively applicable on Court, preme right has been if review, collateral and does it make newly recognized by the Supreme Supplemental Swinton’s Section retroactively appli- Court and made 2255(3). timely motion review; cable to cases on collateral appointed represent The court counsel to

Swinton.1 the date on support- which the facts ing presented the claim or claims II. could through have been discovered diligence. the exercise of due JURISDICTION AND STANDARD added). § 28 U.S.C. 2255 (emphasis OF REVIEW Supplemental Swinton filed his Motion jurisdiction The District pur- Court had year than judgment more one after his § juris- suant to 28 U.S.C. 2255. We have However, conviction became final. be- pursuant § diction to 28 U.S.C. 1291 and cause he Apprendi, claims a violation of 2253(a). § 28 U.S.C. We review issues of argues Supplemental Swinton that the Mo- statutory interpretation Kapral de novo. timely tion was subparagraph States, v. United above year because he filed it within a Cir.1999). Apprendi after was decided. Swinton can take advantage provision of that only if III. Apprendi “right creates a [that] has been DISCUSSION ^[1] newly recognized by Supreme Court and retroactively [2] made applica- A. Statute of Limitations Under 28 ble to cases on collateral review.” Id. § U.S.C. 2255 defendant, In Apprendi, pled guilty who Under Antiterrorism and Effective offenses, to various state firearm was sen- (“AEDPA”), Death Penalty Act of 1996 a tenced to an enhanced sentence under the one-year period of applies limitation to a Jersey New hate crime law. That statute motion to vacate a sentence filed under provides for an imprison- extended term of § 2255. Paragraph § provides ment if judge the trial prepon- finds period the limitation run shall from derance of the evidence that the defendant the latest of: acted a purpose to intimidate an indi- (1) the date on which judgment group vidual or of individuals because of final; conviction becomes race, color, gender, handicap, religion, sex-

(2) the impediment date on which the to ual ethnicity. orientation or In the state

making a motion by govern- created courts and then in Supreme Court of mental action in violation of the Con- the United Apprendi challenged stitution or laws of the constitutionality statute, United States arguing removed, if the pre- movant was that “the Due Process Clause the Unit- Although parties address in their appealability briefs certificate of on this issue and the issue Supplemental of whether the Motion thus we will not address it. successive, grant is second or we did consti- Apprendi establishes “new requires that Constitution ed States filing purposes crime law” for a sec- his hate tutional upon which finding of bias pur- to a or successive habeas proved must be ond was based sentence §§ doubt.” 2255 and 2244. a reasonable suant 28 U.S.C. jury beyond 530 U.S. at prendi recog- Having Apprendi concluded that agreed and held Supreme Court law, rule of constitutional we nized conviction, prior the fact of a than “[o]ther applica- retroactive reach the issue penalty for a that increases the any fact must first decide tion of statutory prescribed crime whether that is an issue reserved jury, and to a maximum must be submitted or whether the lower fed- Id. at beyond a reasonable doubt.” proved authority also have to deter- eral courts 490, 120 S.Ct. 2348. applied can be mine whether impacts both The decision collateral retroactively to cases on review. 6 of statutory provision paragraph Turner, above, where, as noted tolling requires 28 U.S.C. arose in the of a second issue context claims for certain the statute of motion, limitations petitioner we denied the successive rights recognized of new authorization to file a second 2255 mo- Court, § which 8 of paragraph Supreme had tion Court or successive claims requires that second to cases on made retroactive appeals by the court of must be certified lan- collateral Id. at 231. The review. in the district they can be filed before explicit 8 is as it refers guage paragraph requirements There are several courts. law, made to “a new rule of constitutional and the provisions of those under each on collateral review retroactive to cases is, somewhat different. Under language Court, § 2255 Supreme ...” 28 U.S.C. right at issue must have paragraph ¶ added). By (emphasis the time Supreme “newly recognized by the been had opinion, Supreme Turner Court “a paragraph 8 refers to Court” whereas Cain, 533 already Tyler v. decided law.” 28 U.S.C. new rule of constitutional 656, 663, 121

§ 2255. can only that it court that for purposes rule retroactive make parties dispute do not The habeas filing a second or successive right a constitutional prendi establishes Tyler, In corpus application. Court pro applicable language both under the 2244(b)(2)(A), ap- § which construing States, 266 Ashley visions. contains prisoners, and which plies state (7th Cir.2001), F.3d where §in language as the same paragraph the same court construed prisoners. Our decision to federal applies us, i.e. when the statute issue before course. a matter of in Turner followed as newly recog run begins limitations dispositive of the issue be- stated, Tyler is not court one rights, “[n]o nized the difference ‘ini us because of Apprendi ‘newly’ fore could doubt that or para- paragraph 6 and language between recognizes right. a constitutional tially’ merely states graph Paragraph court to overrule Apprendi caused this from “the period shall run cases, something the limitation sign numerous Turner, was ini- right asserted 267 date on which the In In re novel occurred.” Court, if Supreme Cir.2001), recognized by the tially this court 227-28 newly recognized has para right related issue under considered the retroactively and made Supreme 2255 and concluded graph 8 of section applicable dential) to cases on collateral review scope [.]” differs, of that holding but 2255. Significantly, para- U.S.C. is a holding nonetheless. graph 6 phrase does not “by include the Id. at 673. the Supreme referring Court” when court set forth three justi- reasons

retroactivity decision. fying the difference between the statute of limitations and the second or successive It was this difference in statutory provisions. First, a district permitting or language that led the Appeals Court of appellate court to make the retroactivity the Seventh Circuit to hold that courts of decision for an petition initial may be es- appeals and district may courts determine sential put question before the Su- whether a novel decision preme Court for final resolution. Id. It Court applies retroactively, and thus asked, “[h]ow else would a retroactivity whether a collateral timely attack is question get before the Court so Ashley, 266 F.3d at 673-74. The that it could make the decision that would reasoning of the Ashley court persuasive in turn or authorize second peti- successive and, it, because we improve cannot we Second, tion?” Id. a court appeals only adopt it: thirty has days to decide whether a second petition successive may be filed. Id. In petition An initial may be filed within a contrast, no limit such time applies to an year of a decision that is “made retroac- petition initial for collateral review and tively applicable to cases on collateral courts have time to conduct a retroactivity A petition, review[.]” second by con- analysis. Id. Finally, the conditions for trast, depends on “a new rule of consti- filing successive petitions are substantively law, tutional made retroactive to cases and procedurally more restrictive because on collateral by the review Supreme prisoner already has had opportu- one added). (emphasis Court” Both statutes nity to raise his collateral claims. Id. make it clear that only the Supreme may Court issue the new decision. But Similarly, in Lopez, United States v. 248 who decides (5th whether that new decision Cir.), 427 denied, F.3d cert. 534 U.S. applies retroactively? The 898, first 222, formu- 122 S.Ct. 151 L.Ed.2d (2001), 158 (“made retroactive”) lation that leaves the court appeals of required was to decide question open. The second formulation it whether could make the retroactivity (“made by retroactive ... the Supreme determination of Richardson v. United Court”) answers it. To States, treat the first 813, 1707, 119 S.Ct. 143 formulation as identical the second is (1999), L.Ed.2d 985 Supreme Court’s not faithful to the in difference language. decision holding jury must be instructed By omitting the restriction contained in to reach a unanimous verdict on each of ¶ ¶ 8(2), 6(3) implies that courts of ap- the specific violations that comprise the peals and district may courts “make” the “continuing of series charged violations” as retroactivity Tyler decision. concludes a continuing criminal enterprise. Using ¶ 8(2) that the word “made” means reasoning similar to that in Ashley, the “held.” 533 664, U.S. at 121 court, S.Ct. at noting the omission of the words “by 2483. District courts, and appellate no Supreme Court” in paragraph 6 of less than the Court, may § issue provision, statute of limitations “ opinions “holding” that a ap- 2255(3) decision held that require does not plies retroactively to cases on collateral the retroactivity determination must be jurisdictional (and review. The prece- made the Supreme Court itself.” Lo- substantive criminal of v. decisions 432; new Garcia see also F.3d at pez, 248 ” Turner, (quoting 267 F.3d law.’ 1212-13 at. F.3d Woods, States v. Cir.) Supreme United (11th (assuming Cir.1993)). “Under the substantive retroactivity de make the need standard, appropriate in retroactivity limi in the statute required termination legal error is whether the claimed recognizing quiry cases and provision tations inherent defect which denied, a ‘fundamental same), cert. holding miscarriage (2002). complete in a ly results L.Ed.2d 163 123 S.Ct. presents excep ‘it whether justice,’ and has stated also Supreme Court for need circumstances where the tional particular includes Congress ‘“[w]here relief is remedy afforded’ collateral a statute but section language one ' ” (cita Turner, at 229 apparent.’ Act, same in another section omits omitted). tions Congress presumed generally it is Lane, dis v. Teague in the In purposely intentionally and acts Duncan or exclusion.’ inclusion parate prin- 167, 173, general forth the 121 S.Ct. Court set Walker, 533 U.S. (2001) (citations rules retroactivity new for ciples regarding

2120, 150 L.Ed.2d Duncan, procedure. explained It omitted). Supreme Court criminal In finality judg- cor of the interest habeas a federal whether considered justice system, criminal for State “application an ments petition is pus does not procedure review” rule of other collateral post conviction or have be- to cases that retroactively of limita apply the statute tolling purposes 2244(d)(2). rule is an- the new Id. at final before come under 28 tions U.S.C. 309-10, construing the Id. at nounced. A new exceptions. two narrow concluding are There statutory language retro- apply will procedure petitions of criminal intend federal did Congress (1) kinds of places certain actively if it period, the Court toll the limitation individual conduct private used both Congress primary, explained that law-making au- the criminal power to denote “Federal” words “State” requires por proscribe; thority other proceedings in and federal state that are procedures of those at S.Ct. Id. observance of the statute. tions liberty. concept of ordered implicit here. principle applies The same sec- Teague’s 109 S.Ct. Id. - - agree parties conclude We watershed reserved for exception is ond provision limitations of of the statute that only not procedure of criminal rules of courts courts and § 2255 allows district trial, also but accuracy of improve retroactivity decisions. to make appeals bedrock understanding our “‘alter applies Apprendi to whether turn now We essential elements’” procedural review. on collateral retroactively to cases Sawyer v. proceeding. fairness a 227, 242, Smith, Analysis Retroactivity Apprendi B. omitted). (citations retroactivity of a analyzing the When applica- Swinton, seeking the retroactive law, whether must decide we rule Apprendi argues that Apprendi, in tion of procedural rule is substantive criminal of substantive has announced Supreme Court “'the nature He inapplicable. is Teague law standards retroactivity separate and. created when redefines Apprendi contends procedure criminal new rules of for particular fact is deemed be an element the elements of an offense under a reason “ argues of an offense and that the fact that able doubt standard ‘has vital role in procedural has the Apprendi consequence procedure criminal for cogent rea ” proof jury beyond to a a reasonable sons.’ Id. (quoting Apprendi, 530 doubt proce does not render a rule of 2348). The court in Brown states, dure. illogical Swinton “it is to say explained further that Apprendi focused procedural implication that this Appren is on the right to a jury have decide whether rule,’ di’ s ‘new because it always has the sentence should enhanced, not the case that a defendant is entitled to ‘a whether the enhancement was essential to jury determination that guilty [he] is words, conviction. Id. In other Appren every element of the crime which he di did not change government what the ” is charged, beyond a reasonable doubt.’ prove, must it only changed require Appellant’s Br. at 22-23. Govern ment that it must be jury, rather than ment, hand, on the argues other judge, who decided question prendi is a procedure new rule drug quantity. Id. at 309. that does apply retroactively under Similarly, in Curtis v. United Teague. It Apprendi states that did not (7th Cir.), denied, F.3d 841 cert. address the substance of a statute but (2002), L.Ed.2d 334 “merely necessary established proce stated, the court dures for establishing those facts” which penalty increase the for a Appel- crime. Apprendi Yet nothing about pro- but - lee’s Br. at 38. cedure who decides a given question (judge jury) versus and under what appeals courts of The. that have consid (preponderance standard versus ered this issue have held that reason- Apprendi doubt). able procedural establishes a does not alter rule. Brown, (5th facts legal significance, States v. have what — Cir.2002), denied, let alone U.S. -, suggest cert. that conspiring to dis- marijuana tribute is no longer a federal example, the court crime unless principles held finds that some articulated in Teague particular applicable quantity were has been sold.

Apprendi claims asserted on collateral re view and does apply Because is concerned with the retroactively to initial motions under identity decision-maker, and the § 2255. In holding, so rejected the court quantum of required evidence for a sen- petitioner’s argument that the rule an tence, rather than with primary what in Apprendi substantive, nounced rather unlawful, conduct is it identifies a new procedural. than Id. at 307-09. It relied rule of procedure criminal that falls on the Supreme Court’s own description in within legal the set changes to which Apprendi of the issue proce before it as Teague the “ applies. standard dural, where the Court stated that ‘[t]he 843; substantive basis for 294 F.3d at Jersey’s New McCoy [sen see also v. United tencing] issue; enhancement is thus 1245, (11th not at 266 F.3d 1257 n. 16 adequacy Cir.2001) (“The Jersey’s procedure New Apprendi ”is.’ Id. at (quoting Apprendi, 308 merely changes 530 procedure method or 475, 2348). at 120 U.S. S.Ct. The Brown for drug determining quantity and court also noted in Apprendi [McCoy’s] sentence; it does not make Court stated that having McCoy’s decide criminal[.]”), conduct not cert. de-

489 2362, 906, required by was the Constitution.’” Id. nied, 122 S.Ct. 153 omitted). (citations (2002); v. Even if the court de- United States L.Ed.2d (4th Cir.) Sanders, 139, (“Ap termines that the defendant seeks the ben- rule, rule procedural be of a new the court must a efit decide prendi constitutes proce fact-finding what falls one it dictates whether that rule within cause a fair employed ensure exceptions dure must be two narrow the non-retroac- denied, trial.”), 122 tivity cert. U.S. Id. principle set forth above. (2001). 573, 151 L.Ed.2d argue not Although Swinton does circuits agree

We with sister Apprendi did not announce a “new rule” a new rule of announced Teague analysis, of a we will purposes panel has the procedure, criminal as briefly. At time address issue Jenkins, 2003), F.3d 151 Cir. an final Swinton’s conviction became on Octo- Thus, last we must opinion filed week. ber had held Court Teague analysis a to determine apply prove not that a state did need retroactively on Apprendi applies whether sentencing a factor a beyond existence of collateral review. Pennsyl- v. reasonable doubt. McMillan vania, 84-86, 106 S.Ct. above, Teague enunciated the

As stated (1986). It the general 91 L.Ed.2d was “[ujnless they fall within an principle that understanding drug of federal courts that rule, general constitu- exception to the new factor quantity sentencing was a to be procedure will not tional rules of judge on pre- determined based a applicable to cases which have those Sanders, ponderance of the evidence. See the new rules are an- final before become cases). Thus, (citing at 147 nounced.” 489 U.S. at final, the time Swinton’s conviction became that “a explained case jurist a would not have felt reasonable new when it breaks announces a rule compelled in- any to rule that fact that imposes obligation or a new ground penalty for a crime creases the Federal Id. Government.” prescribed statutory maximum must be stated, “a 1060. It case a a jury, proved beyond submitted new rule if the result was not announces a reasonable doubt. at the time by precedent existing dictated final.” the defendant’s conviction became course, Apprendi, dra- The decision Id. understanding. changed matically Bohlen, considering this issue Caspari Accordingly, courts opinion In its 383, 390, Apprendi established 127 L.Ed.2d have held that McCoy, the Teague. “new Supreme Court set forth rule” under Appeals for the Eleventh Circuit steps should take when Court of a federal court was that the petition seeking habeas relief concluded faced existing precedent before on rule the defen- dictated announced after based decided, final. The court before dant’s conviction became “ ” Apprendi, appeals as the courts of had survey legal landscape’ ‘the must upholding greater that were date defendant’s convic- sentences existed on the applicable if than the otherwise maximum final determine tion became and.then “ drug quantity claim on a considering sentences based [the defendant’s] ‘court indictment, submitted charged his final the at the time conviction became proved beyond a reasonable by existing pre- jury the compelled felt would have 1256; also 266 see United the seeks doubt. F.3d [he] cedent conclude that rule 490 Moss, (8th 993,

States v. 252 F.3d did seriously error fairness, affect the Cir.2001) (“Apprendi obviously a ‘new public integrity reputation judi- non-retroactivity.”), subject rule’ general the rule of cial proceedings given the overwhelming denied, 1097, t. 534 U.S. undisputed evidence that the cer defen- 848, (2002); 151 L.Ed.2d 725 dants were involved in a drug vast conspir- Sanders, 247 F.3d at 147. We also hold acy. 122 S.Ct. at 1786-87. Because an now that established a new rule Apprendi violation does not necessarily for purposes Teague. Because Appren- judicial undermine the fairness of proceed- di had not been decided at the time Swin ings, the court in Curtis concluded that final, ton’s conviction became it does not Apprendi did not alter a bedrock rule of apply retroactively on collateral review un procedure. Curtis, 294 F.3d at 843-44. less it satisfies Teague’s one of two narrow The Court of Appeals for Eighth the exceptions. Circuit reached the same conclusion in argues Swinton Teague’s sec Moss. The court stated that accuracy exception, ond that the new rule requires element of the exception watershed de the observance of procedures those rives from the function of corpus habeas “ are implicit in concept liber ordered ‘assure that no man has been incarcerat ty, applies. Other appeals courts of ed procedure under a which creates an have addressed this issue have consistently impermissibly large risk that the innocent Brown, held to contrary. for exam will be convicted.’” 252 F.3d at 998-99 ple, the Court of Appeals for the Fifth (quoting Teague, 489 312, U.S. at 109 S.Ct. agreed Circuit with the reasoning of those 1060). questioned It whether Apprendi courts that the rule iii Apprendi is not a increases the reliably guilt-inno “watershed” rule improved accu cence determination all racy of determining guilt or innocence protect does not the innocent from convic of a defendant. 305 F.3d Rather, at 309. tion, but limits the sentencing exposure of accuracy improved by Apprendi is in who those have validly convicted. Id. imposition of a proper sentence, and at 999. The court further noted nar Apprendi did not alter understanding row exception and con of bedrock elements essential to a funda cluded that impart does not mentally fair proceeding. Id. procedural fundamental right that is a nec Similarly, Curtis, Ap- essary component Id.; of a fair trial. see peals for the Seventh Circuit addressed also United v. Sanchez-Cervantes, whether the rights identified Apprendi 664, (9th Cir.2002) (“Sending are so fundamental any system of drug quantity determination to the liberty ordered is obliged to include them. cannot be fundamental to the fairness 294 F.3d at 843. The court looked to the proceeding if the judge is allowed to circumstances.”), Court’s decision in United States such make findings in some Cotton, U.S. denied, t. cer L.Ed.2d 860 where the defendants (2002); argued on direct appeal that their sen- Mora, (10th States v. tences were invalid Cir.) be- (noting that Apprendi “clearly cause drug quantity was not alleged in on the same truly level as a landmark the indictment or submitted to petit decision such as Wainwright, [v. Gideon jury. Applying plain error standard of 372

review, Court held ].”), that the denied, cert.

491 Ap that these courts (2002); agree with McCoy, We 315 154 L.Ed.2d satisfy Teague’s second not prendi does does (holding Apprendi 1258 F.3d at 266 According non-retroactivity. to exception Teague); in exception satisfy second not apply (same). Apprendi does ly, we hold that Just Sanders, 247 F.3d review.2 retroactively to cases on collateral the Sec Appeals for recently, the Court v. array. Coleman joined Circuit ond IV. U.S.App. States, 329 F.3d

United 2003). (2d 7,May Cir. LEXIS CONCLUSION view, expressed the not differ with I do above, we For reasons discussed the will dissent, impor Judge Rosenn’s in Court de- affirm the order District pro the defendant to a criminal tance Motion, al- Supplemental nying Swinton’s re decision Apprendi that tections by the given reasons than beit for different fact, it provide. the courts quires District Court. from to dissent led me view that that was in banc court United majority ROSENN, dissenting. of the en Judge, Circuit Vazquez, 271 v. merely a appeal in this At stake J., de Cir.2001) (Sloviter, dissenting), cert. law, important an question decision nied, challenge right of a defendant but the (2002), it held that when L.Ed.2d which he was crimes for his sentence for seriously affect did not violations Apprendi majority jury. not convicted reputation fairness, integrity, public the decision of concludes court judicial proceedings Jersey, New v. found, have that a would concluded L.Ed.2d doubt, that re reasonable beyond a pro se mo- while Swinton’s decided I drugs involved. was amount quired his sentence was or correct tion to vacate banc wrote, minority of the en on his retroactive effect had no pending, court, prison time the increase his presenting motion amended af violation after resulted disagree. Al- I am constrained to claim. rights. substantial the defendant’s fected decisions majority applies though the the court. writing for I was not But that have appeals courts of several other conclusion, I believe similar reached a us before now Although the issue inconsistent are decisions flawed their con one, issue arises in a similar different They court. of our precedent exception to apply the sidering whether right to weight give inappropriate gather I rights. Teague for fundamental beyond-a-reasonable- and the jury trial treat Judge Rosenn would bulwarks as constitutional doubt standard But en fashion. rights prendi of inno- presumption and the of fairness any Nor has done so. court has not banc therefore, dissent. I, respectfully cence. Nothing done so. circuits our sister on which of our court panel decision I. relies, Woods Judge Rosenn 21of statutory scheme (3d Cir.1993), According to sug was Swinton under which § U.S.C. do so. that we should gests raising Apprendi claim Motion plemental apply Apprendi does not retroac- Because review, need timely. we tively on collateral to cases Sup- Swinton’s whether not further address convicted, guilty a defendant of distribut- change ought to applied be retroactively to ing a minimal even amount of a controlled convictions such Swinton’s, as occurring subject substance is to a maximum sen- before the rule was announced.2 twenty years imprisonment. tence of Un- By way of background I note the follow- 841(b)(1)(B) § statute, der a defen- ing facts. Although the of drug issues guilty dant of distributing more than 500 type quantity placed were before the grams subject cocaine is of to a maximum jury trial, in Swinton’s the instruc- jury forty years. sentence of A defendant tions vague were and inconsistent as to the guilty of distributing grams of cocaine proof standard of required for these ele- (crack), base or more kilograms than 5 of times, At ments. judge the jury the told cocaine, subject to a maximum sentence it had to find a reasonable of imprisonment 841(b)(1)(A). life § under doubt that the drug was crack and that the Thus, drug type the and the quantity of amount was over grams in order to the drug distribution can mean twenty or impose a more serious sentence. Howev- years more additional liberty. lost er, point at another in the jury instruc- tions, judge stated, the Apprendi, Prior “It’s sufficient if to convict the evidence is shown that enhanced-penalty he provisions knew the once substance was one of drugs existence whose quantity some of some distribution Congress has made unlawful.” proven controlled substance is jury, jury The was also told it find Government could prove had to the precise existence of requisite quantum drug type and quantity only before the drugs if the Government showed the accu- sentencing judge and then only by a pre racy alleged amount “with a ponderance reason- of the evidence. See United able degree of certainty.” Monk, 15 F.3d Cir. 1994). Apprendi held that consistent with At sentencing, Swinton contested the the Sixth and Fourteenth1 Amendments of sufficiency of the evidence as to drug type. Constitution, a defendant is entitled to The trial judge convened hearing, a jury finding on each element of a crime which called, witnesses were to determine that increases his or her maximum statuto whether drug in question was crack. ry sentence. prosecu case At this sentencing hearing, the Govern- tions occurring Apprendi, after Gov ment asserted that its burden pre- was a ernment unquestionably prove ponderance must of the evidence. Although it drug type and quantity beyond a reason was unclear what standard he applied, able doubt before a in order to judge obtain found that the evidence “overwhelm- a correspondingly enhanced ingly” sentence. See showed the drug in question United States v. Vazquez, 96 was crack.

(3d Cir.2001) (en banc) (holding post- II. Apprendi, drug quantity is an element of proven offense to be jury). Deeply embedded in our constitutional question critical here is whether jurisprudence proposition is the that a de- 1. In case of a federal criminal proceeding, prendi should applied retroactively. It controlling principle is the Fifth would, Amend- therefore, be a matter for the District clause, process ment due rather than the Court, retroactive, if were deemed Fourteenth. determine whether Swinton's sentence should be corrected granted he whether should be 2. The specified issue Ap- Certificate of a new trial. one, pealability strictly legal Ap- whether those circumstances-be proof put crime punished may not be fendant protec- constitutional] to a proven deprived [the thereof is every element unless have, unques- point, “[T]he until that doubt: tions a reasonable that beyond jury liberty of deprivation any of tionably attached. proscription 14, law,’ Arndt. of process ‘due without 484, 120 S.Ct. 2348. at Apprendi, 530 U.S. prose criminal all ‘[i]n guarantee the cases, years of additional many In some enjoy right cutions, accused shall hang on the determination imprisonment trial, impar by an public speedy and to a factors. sentencing the enhanced of ... together, Arndt. jury,’ [t]aken tial to defendant criminal indisputably entitle a beyond- trial and the jury to a The right of guilty is that [he] jury ‘a determination “pro proof of standard a-reasonable-doubt he with which of the crime every element presump for the substance vide concrete doubt.’” beyond a reasonable charged, is innocence, the risk and ... reduce of tion 476-77, 120 S.Ct. at 530 U.S. Apprendi, erroneously.” deprivations ... imposing Gaudin, 515 (citing United 484, 120 at Apprendi, U.S. 132 L.Ed.2d 115 S.Ct. U.S. omitted). (internal quotations citations and (alterations (1995)) original). maxi to extend enhanced protections The of wheth issue the novel addressed prendi an surely as to just as penalties, mum underlying of an er, jury guilt a finds once offense, a defendant “underlying” because determine offense, additional facts than punishment more get “never should statutory sentence maximum defendant’s the crime.” when did bargained for he he aby judge to decide for the be left can (Scalia, J., con 120 S.Ct. 2348 Id. evidence, or whether of the preponderance Before original). curring) (emphasis crime to be of the are elements they too rule, announced the a proof beyond jury by by the determined subject a consti then, were defendants Apprendi 530 doubt. See reasonable being sen risk intolerable tutionally (Scalia, J., concur 120 S.Ct. 2348 time in excess period of tenced a for ring). prescribed sentence. legislatively that a concluded Supreme Court a defen by making Thus, Congress, a made after defen- factual determination drug type and contingent liberty dant’s underlying offense of an conviction dant’s effectively prosecutions, §in quantity statutory sentence maximum dictates proven be elements that these mandated culpability” degree goes to “the bars jury, Constitution an and is therefore element the offense for any liberty on other deprivation beyond a proven crime must at 494 n. Apprendi, basis. See jury. The doubt before reasonable (“[W]hen the term ‘sen is indistin- heightened sentence threat an is to describe used tence enhancement’ conviction from threat guishable authorized beyond the maximum increase offense: separate functional sentence, it is statutory beyond punishment a defendant faces If greater of of a of an element equivalent an when offense provided statute jury’s one covered than the fense certain circum- committed under is verdict.”). our Constitution Because guilty others, it is obvious but not stances truth of jury to ascertain entrusts liberty stigma the loss of both permit does allegations and all criminal heightened; are attaching the offense than a anything less based on conviction that the defendant necessarily follows (unless is a waiver there jury finding is the State moment not-at should trial) of all relevant facts The threshold question then, before us doubt, drug type reasonable and quantity whether proce substantive or jury. must be submitted Davis, dural. the Court deemed sub

stantive a new rule under “[defen III. punishment dant’s] conviction and are for an act that the law does not make crimi majority As correctly observes, Davis, nal.” 417 U.S. at retroactivity inquiry generally in Bousley v. United preliminary volves a determination of 614, 118 1604, 140 (1998) S.Ct. L.Ed.2d 828 whether the new rule is substantive or reiterated the paradigmatic “substantive” procedural, because different retroactivity new rule: it held Supreme Court deci analyses apply depending on its categoriz altering sions the “substantive” terms of a ation.3 In States, Davis v. United 417 statute, federal i.e., which hold that a stat 333, 2298, U.S. 94 S.Ct. ute “does not reach [,] certain conduct ... Supreme Court suggested that necessarily carry significant risk that a failure to retroactively apply substantive defendant stands convicted of an act that rules, new “inherently results in com criminal,” law does not make and were plete miscarriage justice and presents to applied be retroactively. 620, Id. at exceptional circumstances that justify col (internal S.Ct. 1604 citations quota lateral relief under 2255.” 346-47, Id. at omitted). tions Procedural new rules are (1974) (internal 94 S.Ct. 2298 quotations generally characterized the introduction omitted). Unlike rules, substantive new of novel mechanisms to improve fairness which essentially are automatically retro and the ascertainment of truth in criminal active, Lane, Teague v. proceedings. See Woods, United States v. (1988), set (3d Cir.1993). 986 F.2d forth very narrow criteria under which procedural ought rule given to be retroac Woods, United States v. our court tive effect. Court held that an excep also question considered the of retroactivi- tion general to the forbidding rule ty retroac in a criminal adjudication arising out of tivity would be a “watershed” new rule a change in the law after the defendant’s raising an issue of fundamental fairness conviction. The central issue there was that is “implicit in concept of ordered the retroactivity of Court’s liberty.” 307, Id. at 1060. Hughey decision, Hughey v. United The Court also noted that it could envision U.S. 110 S.Ct. 109 L.Ed.2d very such new few rules yet that had which dealt with the imposition come into existence. Id. at of the penalty of restitution based on al- 1060. Unless a new procedural rule leged falls wrongdoing that was found within this exception general rule, judge and not a jury. The statute at issue “will applicable not be to those cases which in Hughey had interpreted to allow have become final before the new judge-decreed rule[ ][is] restitution on the basis announced.”4 Id. at 109 S.Ct. 1060. of related credit crimes, card fraud once holds, 3. As majority correctly Teague instant also set exception, forth another in- case announces a new imposes because it volving place rules primary certain upon prosecution obligation a new power conduct legislature prove beyond a reasonable doubt to a to proscribe. exception This has no relevance that the defendant enhancing committed the to this case. factors that warranted sentencing. additional (internal cita- Woods, 677-678 convicted indicted and defendant omitted). rule, Unlike Gideon tions under fraud offense card single credit of a paradigmatic watershed that, considered a mat- as held Hughey statute. rule, procedural or these other procedural construction, conviction statutory ter of new rules, nothing especially there is required before fraud was instance each “The Apprendi: procedure about im- could restitution corresponding ... is the Apprendi rule part 415-16, posed. of this novel Supreme Court’s court, considering a motion The Woods principle.” constitutional long-recognized of Criminal of the Rules Rule 35 States, 2001 WL sentence, Rosario v. United correct an unlawful Procedure (S.D.N.Y.,2001) (emphasis 1006641, at *3 retroactivi- Court’s turned original). §§ 2254 developed under ty jurisprudence corpus proceedings 2255 habeas confronted, then, a rule areWe Woods, retroactivity. Rule determine to a de- correlated that all facts requiring at 676. F.2d con- subject to fendant’s sentence of our protections stitutional rule Hughey that Woods observed - jury and the factfinding procedure the “substan- neatly into either fit did standard. beyond-a-reasonable-doubt as set categories “procedural” or

tive” Hu- case much like the of yet, And “In contrast Supreme Court: by the forth de- rule, framework for existing ghey im- ..., way in no has Hughey Davis to rules is retroactivity of termining the new acts convicted was that plied Woods de- significant to inadequate address crimi- make did not the ... statute that imposed on system has privations Therefore, Woods, nal.” factfind- the absence of drug offenders in unlaw- previously not render it did pri- offenders convicted surety. Drug ing lawful, was Hughey conduct primary ful have surrendered may to noted, Yet, our court not substantive. liberty on of their years more twenty or readily be holding also cannot Hughey’s findings which have the basis proce rule of criminal as a new defined to constitutionally inadequate deemed analysis the retroactivity In its dure. recog- I Although support a conviction. of crimi as new rules treated has in forth set limited circumstances nize as the developments such procedure nal Teague for determin- Davis/Bousley and Fourth to the states of I do not believe retroactivity, ing Mapp exclusionary rule in Amendment ret- to foreclose intended Supreme Court Ohio, 367 U.S. v. injus- grave of such roactivity in instances (1961), the prohibition this. tice as challenges of peremptory race-based Judge Therefore, with accordance in Kentucky, 476 U.S. v. Batson Woods, I in believe rationale the Becker’s 1712, 90 L.Ed.2d to be ought Arizona, of Swinton retroactivity v. of Miranda requirements the considerations light L.Ed.2d viewed retroactivity doctrines. undergird limi (1966). view, Hughey’s In our district, retroactivity is selectiveness authority court’s tation on importance underlying reflects the applied resem little bears order restitution sys- legal in our finality adjudication commonly the Court has blance what countervailing However, there are tem. proce a new criminal as characterized retroac- warrant which sometimes factors retroactivity purposes. rule for dural tivity. injustice Davis “concluded judge-rendered guilt determination of occur would but for the retroactive provided restitution offenses some as- application of the new circuit court deci- and, surance accuracy most importantly, sion sufficiently egregious to warrant right that the at stake was one property Woods, retroactivity.” at 676-77. More- liberty, and not Woods held that the inter- over, Bousley was concerned pos- with the est finality outweighed unjust the risk of sibility of actual innocence of the defen- conviction. Judge Becker therefore con- dant impermissibly large risk that Hughey cluded was not to be retroac- will be innocent convicted. Bousley, tively applied to the defendant in Woods. 118 S.Ct. 1604. What Id. at 671. these cases unjust underlies is the fear of contrast, By case, in the instant mere punishment based on unreliable factfind- money stake; is not at liberty is. This ing. Substantive new rules are likely most noted, court significantly, that “restitution give risk, rise such but this principle cannot ... be considered the in- same as should be so narrowly circumscribed. for retroactivity carceration purposes. [A Similarly, procedural part- may scenario involving incarceration] would ly qualify under the Teague exception if it present us with far stronger considerations improves accuracy of the trial and sen- favor retroactive relief. liberty When tence, and judicial confidence in our pro- stake, is not at the reasons to apply new Smith, Sawyer cess. 227, 242, decision retroactively, and hence to bend (1990). the usual rules of finality, are not neces- Thus can divine we basic principles from sarily lacking, but are more likely to be these decisions. missing.” Id. Woods, at 680-81. Thus Here, therefore, Woods, as in “rather despite holding the restitution rule non- than applying risk may what be a wooden retroactive, adumbrates a different out- or unduly formulaic approach, we will ana- cases, come in Swinton’s, such as where a lyze retroactivity [ ] with a view toward the liberty interest is at stake. In the instant animating common principles underlying case, prosecution has never presented the two retroactivity Woods, doctrines.” proof jury to a and a reasonable Woods, 986 F.2d at 678. In Judge Becker doubt that Swinton guilty of distribut- concluded that the two separate doctrinal ing type of drug and the quantity by standards that the Court has created “for his which sentence was enhanced. Impos- retroactive of new rules ing an additional twenty years of confine- procedural substantive and not, law are ment without having the facts pertaining bottom, all that Rather, different. there to sentencing enhancement submitted to a are common animating principles underly- jury for fact finding beyond a reasonable ing the two.” Id. at 678. Both doctrinal doubt, as required by Apprendi, consti- procedural and standards, substantive he tutes a miscarriage justice trumps wrote, principle reflect the deci- “new judicial preference for finality. sions will not be retroactively applied with- out justification.” substantial Swinton In cites us authority Id. to Ap Woods, he set out to prendi balance the interest announced a substantive new rule finality in with the interest avoiding the recent decision of unjust punishments. making In Arizona, this de- in Ring Court termination, Judge Becker (2002). considered risk of inaccurate factfinding and the se- The case held that Arizona’s sentencing verity punishment. of the Observing that scheme was incompatible with the Sixth efficient; but been It has never Rights. permitted the scheme Amendment free. always it has determination factual make the judge to (in- existed factors statutory aggravating S.Ct. 2428 Ring, 536 U.S. omitted). ques sentence. warranting the death and citations quotations ternal was whether Ring capital punish- presented involved Although Ring tion by the found may be same factor that the ment, made aggravating the Court clear or whether specified, a non- apply law as Arizona judge, would legal considerations jury guaran trial Amendment’s Sixth case. capital by the the states tee, applicable made Ring that the from Thus, glean one does Amendment, that the requires Fourteenth jury to a right consider would - be entrusted factor aggravating fairness” “fundamental question of trial a 588-89, Id. at jury. liberty.” ordered concept in the “implicit Ring court question, deciding U.S. at Teague, 489 See its decision reviewed painstakingly of crime trying elements Although therein the fusion noting prendi efficiency some may have judge before enhance the hate crime with crime core entirely inac- an benefits, may not be that, Appren inas court held ment. The mechanism, Ring factfinding curate the defen violated sentence the death jury trial to a right di suggests that court determination to a right dant’s confi- nonetheless, popular is, essential of the crime every element guilty he is Teag- system. in the fairness dence charged. Id. he rules, implicat- such suggests that ue fairness,” are not barred ing “fundamental similarity in issues despite the Ring, application. retroactive from little illu- provides treatment rule is gives Moreover, on whether decision mination However, sig- procedural. presumption meaning substantive to the venerable us, the now before “An proceedings. to the case nificant in criminal innocence prop- rejected the Ring of Court in the context claim the authority over guilty judicial is “that while defendant osition ... asserts that may be a of a quantity factors aggravating finding unspecified of possessing of an the against substance, arbi- inno- actually way guarantee to he better controlled penalty,” necessary of the death trary imposition quantity possessing of cent holding instead that and sentenced guilty found to be 21 U.S.C. of provisions more onerous jury right, trial Amendment Sixth [t]he Clark, 260 841(b).” v. States United relative however, turn does not Parker, Cir.2001) (R.M. (5th 382, 388 po- fairness, efficiency of rationality, vein, In this J., dissenting). Entrusting to factfinders. tential finding right to a portrayed has to necessary finding of facts judge as fol- doubt a reasonable beyond of guilt an might be death sentence support a lows: of scheme fair and efficient admirably a reason- proof of The standard society for a designed justice

criminal in the role doubt, a vital “plays justice able criminal to leave prepared that is proce- of American scheme the Amer- of founders State. The to the “con- give to operates dure,” because to prepared were Republic ican presumption substance” crete State, why the it to the leave unjust con- against ensure to innocence of the least was one jury-trial guarantee factual risk of victions, reduce Bill provisions controversial 498

error in a criminal proceeding. 397 U.S. troubling possibility that a defendant has 363, at 90 at S.Ct. 1072. At the same been convicted of conduct that constitutes by time impressing upon the factfinder a less serious offense than the one for the need subjective to reach a state of which he was sentenced.” Coleman v. near guilt certitude of the ac- United 77, Cir. cused, the standard symbolizes sig- 2003) (B.D.Parker, J., concurring). Nei nificance our society attaches to the ther Woods nor our long-standing faith in criminal sanction and thus to liberty it- jury system and the beyond-a-reason Id., 372, self. (Harlan, S.Ct. able-doubt standard will countenance such J., concurring). a troubling possibility. Thus, followingthe Jackson v. rationale this Virginia, U.S. court’s Woods, decision in 61 L.Ed.2d Swinton’s situation entitles (quoting him to the ret In re Winship, roactive for the (1970)). 25 L.Ed.2d reasons forth set Similarly, I, above. therefore, the Su re preme Court spectfully recognized has also I dissent. would the cen remand this case trality right to a trial District Court jury pro as a further guardian against ceedings unjust consistent with opinion. conviction:

Providing an accused right with the tried a jury of peers his gave him

an safeguard inestimable against

corrupt or prosecutor overzealous

against compliant, biased, or eccen-

tric judge. If the preferred defendant

the common-sense judgment of the more tutored but perhaps sym- less UNITED STATES of America pathetic reaction of single judge, he was to have it. v. Louisiana,

Duncan Angela KHOROZIAN, Appellant. (1968). No. 02-2820. Therefore, even though Apprendi fits snugly into neither the substantive nor Court Appeals, procedural analytic categories, it is distin- Third Circuit. guished by the fundamental character of Argued April 24, the rights it confers. It both ensures that the presumption of given innocence is sub- Filed June stance and public confidence in the fairness criminal proceedings is main-

tained, particularly loss of where liberty is

at stake. Under these circumstances, Ap-

prendi is the kind of rule that retroactivity

doctrine was intended capture in a case

such as this.

IV.

“[F]ailing apply [in

cases] retroactively ... create[s] the [ ]

Case Details

Case Name: United States v. Andre Swinton

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 23, 2003

Citation: 333 F.3d 481

Docket Number: 01-1004

Court Abbreviation: 3rd Cir.