UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SEAN LAMAR SANDERS, a/k/a Sean Lamont Sanders, Defendant-Appellant.
No. 00-6281
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 13, 2001
Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge, and T. S. ELLIS, III, United States District Judge for the Eastern District of Virginia, sitting by designation.
PUBLISHED. Argued: February 26, 2001. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (CR-97-149, CA-99-860-5-BR). Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Traxler and Judge Ellis joined.
ARGUED: Matthew C. Hicks, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
OPINION
WILKINSON, Chief Judge:
Sean L. Sanders filed this petition for collateral relief under
I.
On September 23, 1997, Sean L. Sanders was named in a one-count criminal information. The information alleged that Sanders conspired to distribute cocaine and cocaine base in violation of
On December 15, 1998, in light of Sanders’ substantial assistance in other prosecutions, the government moved for a reduction in Sanders’ sentence pursuant to
On December 27, 1999, nearly twenty-four months after he had originally been sentenced, Sanders filed a petition for collateral relief under
On January 6, 2000, the district court dismissed Sanders’ petition for relief. The court noted that the judgment of his conviction became final in January 1998, but that Sanders did not file his petition for collateral relief until December 1999. The court ruled that Sanders’ petition was therefore untimely under
II.
Prior to 1996, there was no time limitation on a federal prisoner‘s ability to collaterally attack his conviction in a
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final; . . . [or]
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.
III.
Sanders first contends his habeas petition was timely under
Contrary to Sanders’ assertions, Congress did not intend for
(b) Effect of finality of judgment. — Notwithstanding the fact that a sentence to imprisonment can subsequently be —
a. modified pursuant to the provisions of subsection (c);
b. corrected pursuant to the provisions of rule 35 of the Federal Rules of Criminal Procedure and section 3742; or
c. appealed and modified, if outside the guideline range, pursuant to the provisions of section 3742;
a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.
As
Both Sanders and the government emphasize at length various policy arguments to explain why this court should or should not construe
For its part, the Government contends that Sanders’ construction would result in many stale
It is not our place, however, to weigh the relative merits of these policy arguments. Congress already has considered these very concerns, and it has resolved them with
IV.
Sanders next argues that his claims are not time-barred under subsection (3) of
A.
Sanders did not argue at his original sentencing that a jury must determine beyond a reasonable doubt the types or quantities of drugs involved in his conspiracy. Nor did he raise this claim on direct appeal. As the Supreme Court has admonished, “[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (internal citations omitted). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.‘” Id. at 622 (internal citations omitted).
Sanders first attempts to demonstrate “cause.” He argues that the legal basis for his claim was not reasonably available to his counsel at the time his plea was entered. He notes further that the Supreme Court has held “that a claim that ‘is so novel that its legal basis is not reasonably available to counsel’ may constitute cause for a procedural default.” Bousley, 523 U.S. at 622 (citing Reed v. Ross, 468 U.S. 1, 16 (1984)).
In Bousley, however, the Supreme Court elaborated on just what constitutes a novel claim. In that case, Bousley claimed on collateral review that his guilty plea for “using” a firearm in violation of
Although the Court recognized that its holding in Bailey changed the relevant legal landscape, it held that Bousley‘s claim was not novel. The Court reached this conclusion because other defendants
The Court further rejected Bousley‘s argument that his failure to raise the claim on direct review “should be excused because, before Bailey, any attempt to attack his guilty plea would have been futile.” Bousley, 523 U.S. at 623 (internal quotation marks omitted). Instead, the Court stated that “futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.” Id. (citing Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)).
Under the Bousley analysis, Sanders simply cannot show cause to explain his failure to raise his Apprendi argument on direct appeal. The Seventh Circuit has recently addressed this precise issue, holding that a petitioner procedurally defaulted his Apprendi claim when he failed to raise it at his trial in 1992. See United States v. Smith, 241 F.3d 546 (7th Cir. 2001). Smith determined that the petitioner‘s claims were not novel because “the foundation for Apprendi was laid long before 1992. Other defendants had been making Apprendi-like arguments ever since the Sentencing Guidelines came into being, and in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court addressed on the merits an argument along similar lines.” Smith, 241 F.3d at 548 (internal citations omitted). See also United States v. Nance, 236 F.3d 820, 823 (7th Cir. 2000) (“Indeed, as far back as 1997 defendants were arguing to this court that the type of drug that they were charged with distributing in violation of
Smith further rejected the petitioner‘s futility argument, which is identical to Sanders’ here. The Smith petitioner argued that he showed cause because, prior to Apprendi, the federal circuit courts had held that drug quantity under
We agree with the Seventh Circuit‘s analysis. Adopting petitioner‘s view of novelty as a cause for procedural default would invite criminal defendants to bypass the preferred procedural avenue of trial and direct appeal in favor of collateral review. Collateral review would come in turn to serve as an all-purposive receptacle for claims which in hindsight appear more promising than they did at the time of trial. Bousley did not intend every change in criminal procedure to become the occasion for reopening a judgment. The germ of Sanders’ Apprendi claim had sprouted at the time of his conviction and there is no reason why he could not have raised it then. Although the court may not have been likely to accept Sanders’ argument, Sanders plainly had at his disposal the essential legal tools with which to construct his claim. Smith, 241 F.3d at 548. As a result, Sanders has procedurally defaulted his Apprendi claim.
B.
Sanders’ argument that his claims are not barred under
recently concluded just the opposite. See Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000). Several district courts have also held that Apprendi does not apply to initial habeas corpus petitions. See Levan v. United States, 128 F. Supp. 2d 270, 275-76 (E.D. Pa. 2001) (listing cases); but see United States v. Murphy, 109 F. Supp. 2d 1059 (D. Minn. 2000) (holding that Apprendi applies retroactively); Darity v. United States, 124 F. Supp. 2d 355 (W.D.N.C. 2000) (same). We agree with the Ninth Circuit and the majority of district courts that Apprendi does not apply retroactively to cases on collateral review.
In Teague v. Lane, the Supreme Court established a three-step inquiry to determine when new rules of criminal procedure apply retroactively on collateral review. See Id. at 288. First, the court must determine the date on which the defendant‘s conviction became final. See O‘Dell v. Netherland, 521 U.S. 151, 156-57 (1997) (citing Lambrix v. Singletary, 520 U.S. 518, 527 (1997)). Second, the court must decide whether the Supreme Court‘s ruling indeed constitutes a “new rule” of constitutional criminal procedure. Third, if the rule is new, then it does not apply retroactively unless it falls within one of the two narrow exceptions to the Teague bar.
Sanders initially argues that Apprendi is not subject to Teague‘s three-step test because it sets forth a new rule of substantive, rather than procedural, criminal law. To the contrary, Apprendi constitutes a procedural rule because it dictates what fact-finding procedure must be employed to ensure a fair trial. Teague, 489 U.S. at 312; Apprendi, 120 S.Ct. at 2354 (“The substantive basis for New Jersey‘s enhancement is thus not at issue; the adequacy of New Jersey‘s procedure is.“).
Since only McMillan had been decided by the time Sanders’ conviction became final, it is clear that a reasonable jurist in January 1998 would not have felt compelled to adopt the rule later set out in Apprendi; i.e. - that any factor which increased the maximum punishment for an offense must be found by a jury beyond a reasonable doubt. This claim is illustrated by the fact that, prior to Apprendi, every federal circuit court considered drug quantity to be a sentencing factor for a judge to determine based on a preponderance of the evidence. See, e.g., United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United States v. Campuzano, 905 F.2d 677, 679 (2d Cir. 1990). As the Ninth Circuit recognized in Jones, ”Apprendi certainly established a new rule; that much is clear from the Supreme Court‘s declaration in Jones v. United States, 526 U.S. 227, 248 (1999), that the issue was, as of 1999, ‘not yet settled.‘” Jones, 231 F.3d at 1236.5
New rules of constitutional criminal procedure are generally not applied retroactively on collateral review. This rule is subject only to the two narrow exceptions discussed in Teague. Teague‘s first exception addresses new rules which forbid “criminal punishment of certain primary conduct” and new rules which prohibit “a certain category of punishment for a class of defendants because of their status or offense.” See O‘Dell, 521 U.S. at 157. The first exception clearly does not apply here because Apprendi did not place drug conspiracies beyond the scope of the state‘s authority to proscribe. Cf. Jones, 231 F.3d at 1237 (finding Teague‘s first exception inapplicable to petitioner‘s Apprendi claim because “the state‘s authority to punish Petitioner for attempted murder is beyond question“).
Accordingly, Apprendi does not apply retroactively unless it falls within Teague‘s second exception. For a rule to qualify, the new rule must be such that, without it, “the likelihood of an accurate conviction is seriously diminished.” Teague, 489 U.S. at 313. Improving the accuracy of trial, however, is not sufficient. Rather, a “rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242 (1990) (internal quotations omitted). The Supreme Court has pointed to Gideon v. Wainwright, 372 U.S. 335 (1963), as the type of rule that would satisfy Teague‘s second exception. See Saffle v. Parks, 494 U.S. 484, 495 (1990).
The Supreme Court has stated that it is unlikely that many such rules remain undiscovered. “Whatever the precise scope of this second exception, it is clearly meant to apply only to a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty.” O‘Dell, 521 U.S. at 157. The Court has repeatedly emphasized the rarity of new bedrock rules of procedure.
As Sanders recognizes, a rule which merely shifts the fact-finding duties from an impartial judge to a jury clearly does not fall within the scope of the second Teague exception. See Neder v. United States, 527 U.S. 1 (1999). Neder came on the heels of United States v. Gaudin, 515 U.S. 506 (1995), which held that the issue of materiality in false statement prosecutions under
Certainly, if having a judge rather than a jury consider an element of the offense amounts only to harmless error, then a new rule mandating a jury to decide an issue rather than a judge cannot fall within the scope of the second Teague exception. The federal circuit courts have recognized this very point, holding that the new rule announced in Gaudin does not apply retroactively on collateral review. See, e.g., Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997); United States v. Shunk, 113 F.3d 31, 37 (5th Cir. 1997). As the Second Circuit explained in Bilzerian, the Gaudin rule “merely shift[ed] the determination of materiality from the judge to the jury” and there is “little reason to believe that juries will have substantially different interpretations of materiality than judges.” Bilzerian, 127 F.3d at 241. The same reasoning applies to Sanders’ case: there is little reason to
Sanders argues, however, that it is not so much the identity of the fact-finder as it is the reasonable doubt standard that profoundly implicates both the fairness and the accuracy of criminal proceedings.6 Sanders likens Apprendi to Cage v. Louisiana, 498 U.S. 39, 40-41 (1990), in which the Supreme Court announced a new rule that a jury instruction equating the reasonable doubt standard with “moral certainty” unconstitutionally diluted the reasonable doubt standard. Sanders correctly points out that this court has held that Cage falls within the second Teague exception and applies retroactively on collateral review. See Adams v. Aiken, 41 F.3d 175, 178 (4th Cir. 1994). Sanders contends that Adams is indistinguishable from this case. He also notes that this term the Supreme Court is reviewing the retroactivity of Cage‘s new rule. See Tyler v. Cain, No. 00-5961, 69 U.S.L.W. 3393 (U.S. Dec. 12, 2000).
Even assuming the Court applies Cage‘s rule retroactively in Tyler, the question raised in this case is fundamentally different. Tyler turns on the standard of proof under which the entire case against the defendant is submitted to the jury. Here, in contrast, Sanders cannot claim that his entire conviction is tainted. Rather, his claim concerns the district court‘s omission of only one “element” of the offense, i.e. - drug quantity. Cf. Neder, 527 U.S. at 11. As the Supreme Court explained in Johnson v. United States, 520 U.S. 461, 468-69 (1997), and Neder, 527 U.S. at 9-15, an instruction that gives a proper reasonable doubt instruction but omits an element of the offense does not necessarily render a criminal trial fundamentally unfair, even though it prevents the jury from rendering a “complete verdict” on every element of the offense. Rather, in those cases the Supreme Court held that the district court‘s failure to submit an element to the jury was subject to harmless-error (Neder) and plain-error (Johnson) analysis.
More importantly, we do not read Apprendi to hold that the country‘s criminal justice system malfunctioned so fundamentally prior to the year 2000, as to merit the retroactive application of the Court‘s new procedural rule. Apprendi itself recognized that judges in this country, in accordance with the Constitution, had long exercised discretion in imposing sentences within the particular range determined by the legislature. “[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Id. at 2357-58 (citing Williams v. New York, 337 U.S. 241, 246 (1949)). While the Apprendi principle may spark a closely divided debate among contemporary jurists, it would be unusual for the Supreme Court to identify a bedrock principle of procedure that somehow eluded the nation since its founding. Again, Apprendi holds that so long as the sentence is within the statutory range, a judge can increase a defendant‘s sentence on the basis of certain facts which need not be proven to a jury beyond a reasonable doubt. This very holding of Apprendi undercuts the argument that it states a bedrock principle as envisioned by Teague. Otherwise it would be unconstitutional to allow vast numbers of criminal defendants to receive sen-
Further supporting the view that Apprendi does not rise to the level of a watershed change in criminal procedure is the fact that the majority of the federal circuit courts have subjected Apprendi claims to harmless and plain error review. See, e.g., United States v. Terry, 240 F.3d 65, 74-75 (1st Cir. 2001); United States v. White, 240 F.3d 127 (2d Cir. 2001); United States v. Lewis, 235 F.3d 215, 218 (4th Cir. 2000); United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000); United States v. Nance, 236 F.3d 820, 823-24 (7th Cir. 2000); United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001). As these courts have recognized, it is possible for a criminal defendant to have a fair and accurate trial without the new procedural protection offered by Apprendi. None of these cases have suggested that failure to submit the question of drug quantities to a jury is structural error. We do not suggest, of course, that all structural errors satisfy Teague‘s second exception. We merely emphasize that finding something to be a structural error would seem to be a necessary predicate for a new rule to apply retroactively under Teague.
It is important, finally, to keep the ebbs and flows of criminal process in some perspective. The Constitution embodies many important protections for those accused of crime. The rights to counsel, to trial by jury, and to be proven guilty beyond a reasonable doubt are all fundamental rights. These watershed principles in turn spawn numerous subsidiary questions, which are closer to the constitutional margins. These subsidiary questions may qualify as arguable applications of a bedrock principle, but they are not core guarantees themselves.
Taking again the example of Gideon, the Court has had to consider, among other things, whether a district court‘s order that a defendant not speak with his counsel during a court recess violated his Sixth Amendment right to the assistance of counsel, see Perry v. Leeke, 488 U.S. 272 (1989); whether the Sixth Amendment prohibits a sentencing court from considering a defendant‘s previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense, see Nichols v. United States, 511 U.S. 738 (1994); and whether a state procedure that permits appointed counsel to withdraw without informing the court that the appeal would be frivolous violates the indigent
V.
All of petitioner‘s arguments have served a single purpose — to undermine the finality of direct appeal within the criminal justice system. The Supreme Court has resisted having collateral review substitute for the appellate function. Bousley‘s holding on procedural default, and Teague‘s pronouncement on the retroactive application of new rules are only the latest of a long line of cases emphasizing the centrality of direct review of criminal convictions. With the AEDPA, Congress has likewise spoken to the question, and established firm time limitations to govern the filing of
AFFIRMED.
Notes
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; . . . [or]
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.