Opinion
Case No. 01-3051-JWL, 97-20047-JWL.
June 11, 2001
MEMORANDUM AND ORDER
Pursuant to 28 U.S.C. § 2255, petitioner Bernard Collins filed this motion to vacate, set aside, or correct his sentence for possession of cocaine with the intent to distribute and attempt to distribute cocaine (Doc. 84). Mr. Collins argues that his conviction violated due process and his right to a jury trial because the jury did not find beyond a reasonable doubt the type and quantity of controlled substance involved in the offenses for which he was convicted. After Mr. Collins' conviction became final, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that, other than the fact of a prior conviction, a jury must find beyond a reasonable doubt any facts that increase the penalty for a crime beyond the statutory maximum. Mr. Collins was sentenced to 262 months imprisonment, more that the statutory maximum for a violation of 21 U.S.C. § 841(b)(1)(C). The court determined the type and quantity of drugs involved in the offenses under a standard of preponderance of the evidence and the Sentencing Guidelines dictated, based on the court's finding, that Mr. Collins' sentence of imprisonment exceed the statutory maximum. Although his sentence violated the principal of constitutional law set out in Apprendi, Mr. Collins is not entitled to a remedy because his motion is precluded by the statute of limitations and because the rule announced in Apprendi is a new rule of criminal procedure that does not apply retroactively to cases on collateral review.
Mr. Collins also argues that he was denied effective assistance of counsel because his lawyer did not argue to the court that due process and the right to a jury trial requires that the jury find beyond a reasonable doubt the type and quantity of drugs involved in the offenses. With regard to his claim of ineffective assistance of counsel, Mr. Collins' motion is denied because it was not filed within the period of time allowed by the statute of limitations and because he has not persuaded the court that his counsel's failure to make an Apprendi argument constitutes a deficient performance or that Mr. Collins was prejudiced by counsel's failure to make the argument.
I. Apprendi violation
Although Mr. Collins was sentenced in violation of the rule announced in Apprendi, the challenge to his sentence was not filed within the time allowed by the statute of limitations. The challenge is also without merit because new rules of criminal procedure are not applied retroactively on collateral review unless they meet one of two exceptions set out in Teague v. Lane, 489 U.S. 288 (1989), and the rule announced in Apprendi does not meet either of the exceptions.
A. Statute of limitations
The government argues in its response that Mr. Collins failed to file his motion within the time allowed by the statute of limitations. Section 2255 provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation 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; . . .
Mr. Collins concedes in his reply that the motion was not filed within one year of the date that his conviction became final but points out that it was filed within one year of the Supreme Court's decision in Apprendi. Mr. Collins argues that Apprendi recognized a new right that is retroactively applicable to cases on collateral review.
The Supreme Court, in Apprendi, held that a defendant may not be sentenced to a term of imprisonment in excess of the statutory maximum based on "sentencing factors" found by the court by a preponderance of the evidence. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). According to the decision, a sentence of imprisonment that exceeds the statutory maximum based on such a finding violates a defendant's right to due process and a jury trial. Id. at 476-77, 490. Prior to the decision, precedent dictated that the type and quantity of drugs involved in a crime was a "sentencing factor" to be determined by a judge by a preponderance of the evidence standard. United States v. Jones, 194 F.3d 1178, 1183-84 (10th Cir. 1999); McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986). The Apprendi decision, thus, is properly characterized as recognizing a new right of defendants in certain cases. In fact, the Tenth Circuit has held that the rule is a new rule of constitutional law within the meaning of section 2255. Browning v. United States, 241 F.3d 1262, 1266 (10th Cir. 2001).
Pursuant to section 2255(3), a defendant may challenge a sentence made in violation of a newly recognized right if the right is "made retroactively applicable to cases on collateral review." In Browning v. United States, 241 F.3d 1262 (10th Cir. 2001), the Tenth Circuit interpreted similar language in the section 2255 requirement for second or successive motions. The statute allows a petitioner to file a second motion if the motion is based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." The Tenth Circuit held that a new rule is "made retroactive" by the Supreme Court "only if the Court actually applies the rule retroactively, or makes some explicit statement regarding retroactivity." Id. at 1264.
Section 2255(3) does not contain the qualifier "by the Supreme Court" and, therefore, the statute does not require that the Supreme Court make the rule retroactively applicable. See United States v. Lopez, 248 F.3d 427, 431-32 (5th Cir. 2001). Following the logic of the Browning decision, however, the statute requires that some court has made the rule retroactively applicable by either applying the rule retroactively or making an explicit statement regarding retroactivity. Other courts have held that section 2255(3) requires that a decision by either the Supreme Court or the controlling circuit court makes the rule retroactively applicable. See, e.g., United States v. Lopez, 233 F.3d 884, 885 (5th Cir. 2001) (holding that, because there is no Supreme Court or Fifth Circuit precedent making Apprendi retroactively applicable on collateral review, section 2255(3) is not applicable to the petitioner's motion); Berthoff v. United States, 2001 WL 396368, *7 (D. Mass. April 9, 2001) ("[S]ection 2255(3) is inapplicable because neither the First Circuit nor the Supreme Court has made Apprendi retroactive on collateral review."). The Supreme Court has not applied the rule retroactively or made an explicit statement regarding retroactivity, Browning, 241 F.3d at 1266, nor has the Tenth Circuit.
Mr. Collins argues that section 2255(3) applies to a rule that is retroactively applicable either because it fits the second exception set out in Teague or is a substantive change of law. Apparently Mr. Collins expects this court to hold that the rule is retroactively applicable on collateral review and then conclude that the rule has been "made retroactively applicable" by its own decision. The plain language of section 2255(3) and the logic of the Browning decision require that a newly recognized right has been "made retroactively applicable" by a prior court decision. Decisions by other courts interpreting section 2255(3) support this conclusion. For these reasons, this court believes that the Tenth Circuit would reject the petitioner's argument and hold that, because neither the Supreme Court nor the Tenth Circuit has made the rule retroactively applicable on collateral review, section 2255(3) is inapplicable to the rule announced in Apprendi.
Mr. Collins also argues in his reply that the Supreme Court has applied the rule announced in Apprendi retroactively to a case on collateral review. In support, Mr. Collins cites an unpublished decision by the Supreme Court remanding a case on direct appeal to the Seventh Circuit, Smith v. United States, 121 S.Ct. 336 (2000). Since the Smith decision, the Tenth Circuit has held that the Supreme Court has not retroactively applied Apprendi. Browning v. United States, 241 F.3d 1262, 1266 (10th Cir. 2001). Mr. Collins' argument is without merit and, furthermore, this court is bound by Tenth Circuit precedent.
Even if the court were to accept Mr. Collins' argument that it could declare the rule retroactively applicable and thereby meet the requirements of section 2255(3), it would hold that the rule is not retroactively applicable to cases on collateral review. The petitioner's two arguments about retroactivity, that the rule announced in Apprendi meets the second exception set out in Teague and that the rule is substantive as opposed to procedural, are without merit.
Mixed in throughout his arguments on retroactivity, Mr. Collins argues that the absence of a statutory definition of "cocaine base" violates due process. The Tenth Circuit rejected this argument in United States v. Easter, 981 F.2d 1549, 1558 (10th Cir. 1992).
1. Teague exception
New procedural rules of constitutional law are not retroactively applicable on collateral review unless they meet one of two exceptions set out in Teague v. Lane, 489 U.S. 288 (1989). The first exception applies to new rules that place "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague, 489 U.S. at 307. This exception is inapplicable to the rule announced in Apprendi because the rule does not limit the conduct for which a defendant may be convicted. The second exception allows retroactive application of procedural rules that are "implicit in the concept of ordered liberty." Id. The Supreme Court described these rules as "watershed rules of criminal procedure" that are "central to an accurate determination of innocence or guilt." Id. at 313. The Court noted that it is "unlikely that many such components of basic due process have yet to emerge." Id. at 313. 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). As an example of a rule that meets the second exception, the Supreme Court has pointed to the right to counsel recognized in Gideon v. Wainright, 372 U.S. 335 (1963). Saffle v. Parks, 494 U.S. 484 (1990). The Court has explained that a rule that meets the second exception, like Gideon, must be a "sweeping rule" and not a "narrow right" that impacts only a limited class of cases. O'Dell, 521 U.S. at 167. Since the Teague decision, "the Court has yet to find a single rule that qualifies under the second exception." United States v. Sanders, 247 F.3d 139, 148 (4th Cir. 2001).
The rule announced in Apprendi merely shifts the fact-finding duty with regard to the type and quantity of drugs involved in a crime, in some cases, from the judge to the jury and changes the burden of proof. Courts are split on the issue of whether this new rule, requiring a heightened burden of proof in some cases, contributes to a more accurate determination of guilt or innocence. Compare United States v. Pittman, 120 F. Supp.2d 1263, 1270 (D.Or. 2000) ("I find that the new Apprendi rules do not directly relate to the accuracy of the conviction or sentence.") with United States v. Hernandez, 137 F. Supp.2d 911, 931 (N.D.Ohio. 2001) ("This court disagrees with the reasoning of courts that have concluded that the Apprendi rule does not increase the accuracy of a conviction or sentence."). While the heightened burden of proof may, in fact, increase the accuracy of a conviction, it surely is not "central to an accurate determination of innocence or guilt." Teague, 489 U.S. at 313. As the Fourth Circuit has observed, "there is little reason to believe that juries will have substantially different interpretations of drug type and quantity than judges." Sanders, 274 F.3d at 149. The rule announced in Apprendi also does not alter our understanding of the bedrock procedural elements essential to a fair trial:
[W]e 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 . . . . it is possible for a criminal defendant to have a fair and accurate trial without the new procedural protection offered by Apprendi.Sanders, 274 F.3d at 150. Perhaps, most importantly, the rule is not on par with the right to counsel. It is better described as a "narrow right," implicated only when a finding of fact leads to a sentence that exceeds the statutory maximum, than a "sweeping right" of "watershed" magnitude.
The Tenth Circuit, like other circuits, reviews alleged violations of Apprendi on direct appeal for "plain error," United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000). According to the Tenth Circuit, the fourth element of the plain error test, "that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings" is not met where the evidence of the type and quantity of drugs involved in the offense is overwhelming. Id. at 538-40. The Tenth Circuit holding that violations of Apprendi do not necessarily constitute plain error is strong evidence that the Tenth Circuit would also hold that the rule is not central to a fair and accurate trial. This conclusion is supported by the fact that the vast majority of courts to consider the issue, including Judge Vratil of this court, have held that the rule announced in Apprendi does not meet the second exception. See, e.g., United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236-37 (9th Cir. 2000); United States v. Moss, 137 F. Supp.2d 1249, 1252-53 (D.Kan. 2001) ; Levan v. United States, 128 F. Supp.2d 270, 278 (E.D.Pa. 2001); Klein v. United States, 125 F. Supp.2d 460, 467-68 (D. Wy. 2000). This court is persuaded, for all of these reasons, that the Tenth Circuit would hold that the rule announced in Apprendi does not meet the second Teague exception.
2. A procedural right
If a new rule of constitutional law is substantive rather than procedural, Teague does not determine whether the rule is applied retroactively on collateral review. Bousley v. United States, 523 U.S. 614, 620 (1998). In Bousley, the Supreme Court explained that Teague "is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress." Id. According to the Supreme Court, "decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct," does not fit the rationale for prohibiting retroactive application of new constitutional rules. Id. Mr. Collins argues that the decision in Apprendi announced a new substantive rule, not a procedural one.
The rule announced in Apprendi is a procedural rule that dictates what fact-finding procedure must be employed to have a fair trial. The decision did not change the elements that must be proven but changed by whom they must be proven and by what standard of proof. Prior to the Apprendi decision, if a court were to sentence a defendant to a term of imprisonment beyond the statutory maximum of 21 U.S.C. § 841(b)(1)(C), the court had to find by a preponderance of the evidence that a certain type and quantity of drugs were involved in the offense. Apprendi simply changed who made the finding and by what standard; the decision did not change the finding necessary to sentence a defendant to a term of imprisonment longer than the statutory maximum. The text of the Apprendi decision provides strong evidence in support of the conclusion that Apprendi announced a procedural rule. In setting out the issue to be decided, Justice Stevens explained,"[A]lthough the constitutionality of basing an enhanced sentence on racial bias was argued in the New Jersey courts, that issue was not raised here. The substantive basis for New Jersey's enhancement is thus not at issue; the adequacy of New Jersey's procedure is." Apprendi, 530 U.S. at 475.
Mr. Collins also argues that the application of Apprendi to federal drug statutes "constitutes the Supreme Court's interpretation of the elements of those statutes." His argument is a restatement of the principal set out by the Supreme Court in Bousley that if a decision changes the elements of a crime or changes the interpretation of those elements, then the new rule is substantive and Teague is not applicable. As explained above, the decision in Apprendi did not change the elements of a violation of 21 U.S.C. § 841 or reinterpret the elements.
The Apprendi decision recognized a new right and section 2255(3) grants a one-year period to file motions based on newly recognized rights that are made retroactively applicable on collateral review. Neither the Supreme Court nor the Tenth Circuit has made the rule announced in Apprendi retroactively applicable on collateral review and this court believes that the Tenth Circuit would hold that the rule, therefore, has not been made retroactively applicable to cases on collateral review. Even if the court accepts the petitioner's argument that it can hold that the rule is retroactively applicable and thereby satisfy the requirements of section 2255(3), the court rejects the petitioner's arguments that the rule is retroactively applicable because it meets the second exception set out in Teague and is a substantive change in law. Mr. Collins concedes that his motion was not filed within one year of when his conviction became final and, therefore, the statute of limitations prohibits him from bringing this motion.
B. Teague
Even if Mr. Collins had timely filed his motion, the challenge to his conviction based on Apprendi would be denied on the merits. "If the basis for relief depends on a new rule of constitutional law announced after the conviction became final, consideration of the [2255] motion proceeds under the analytical framework established by the Supreme Court in Teague." Browning, 241 F.3d at 1264. As explained above, the rule announced in Apprendi does not fit either of the two Teague exceptions. The rule, therefore, is not available to Mr. Collins to challenge his conviction with a section 2255 motion and his motion would be denied on the merits.
II. Ineffective assistance of counsel
Mr. Collins argues that he was denied effective assistance of counsel because his lawyer did not argue to the trial court that due process and the right to a jury trial required that the jury find beyond a reasonable doubt the type and quantity of drugs involved in the offense. Mr. Collins' motion is denied because it was filed after the statute of limitations had expired and because he has not persuaded the court that his counsel's failure to make an Apprendi argument constitutes performance below an objective standard of reasonableness or that there is a reasonable probability that, had counsel made this argument to the court, the result of the proceedings would have been different.
A. Statute of limitations
Mr. Collins concedes in his reply that his motion was not filed within one year of his conviction becoming final. His only argument for why his motion was filed within the period of time allowed by the statute of limitations is that his sentence violated the rule announced in Apprendi and the statute grants him one year from the decision to file a motion based on a right newly recognized in the decision. Mr. Collins does not argue that his claim of ineffective assistance of counsel, although based on counsel's failure to make an Apprendi argument, falls within that one-year period. The right to effective assistance of counsel was not newly recognized in Apprendi. The provision of the statute of limitations that allows a motion to be brought within one year of the recognition of a new right applies only to motions based on that newly recognized right and, therefore, is inapplicable to Mr. Collins' ineffective assistance of counsel claim. Mr. Collins concedes that his motion was filed more than one year after his conviction became final and, therefore, the statute bars him from now arguing ineffective assistance of counsel.
B. Deficient performance and prejudice
Even if Mr. Collins had filed his motion within the period of time allowed by the statute of limitations, his argument would be denied on the merits. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy two criteria. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must show that his attorney's performance was constitutionally deficient. Id. Second, the petitioner must show that his attorney's deficient performance prejudiced him in some way. Id. Under the first Strickland prong, the petitioner must demonstrate that counsel committed "serious errors" in light of "prevailing professional norms," such that the "representation fell below an objective standard of reasonableness." Id. at 687-88. The Supreme Court advised that this prong mandates "highly deferential" judicial scrutiny of counsel's performance, explaining that courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Under the second prong, the petitioner must demonstrate that he was prejudiced by counsel's errors. Id. at 688.
Apprendi was decided after Mr. Collins' conviction became final. At the time of Mr. Collins' sentence and on direct appeal, precedent dictated that the judge should determine the type and quantity of drugs based on a preponderance of the evidence standard. United States v. Jones, 194 F.3d 1178, 1183-84 (10th Cir. 1999). Had counsel argued that due process and the right to a jury trial required that the jury find the type and quantity of drugs involved in the crime beyond a reasonable doubt, the argument would have been rejected based on that precedent. Counsel's failure to raise a losing argument based on the hope that one day the Supreme Court will reverse precedent and recognize a new right that is retroactively applicable on collateral review does not amount to ineffective assistance of counsel. Raising such an argument amounts to a "long shot" that falls squarely within the discretion afforded to counsel. United States v. Hernandez, 137 F. Supp.2d 919, 927 (N.D.Ohio. 2001) (holding that counsel's performance "did not fall below an objective standard of reasonableness under prevailing professional norms" in failing to make an Apprendi argument prior to the Apprendi decision); United States v. Gomez, 2001 WL 585751, *2 (N.D.Tex. May 25, 2001) ("Counsel's failure to predict the Apprendi decision does not constitute ineffective assistance of counsel."). Furthermore, because precedent required that the argument be rejected, Mr. Collins was not prejudiced by his counsel's failure to make the argument. United States v. Goode, 2001 WL 332632, *8 (E.D.Mich. Jan. 23, 2001) ("[T]he established precedent in every circuit, including the Sixth Circuit, before Apprendi was that drug quantity was not required to be charged in the indictment or submitted to the jury. Consequently, there would have been no reasonable probability of success in raising such a challenge during trial or on appeal."). Mr. Collins, therefore, fails to establish either that his counsel's performance was deficient or that he was prejudiced by counsel's failure to make an Apprendi argument.
Section 2255 requires that the court grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The petitioner "bears the burden of alleging facts which, if proved, would entitle him to relief." Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995). Because Mr. Collins' claim of an Apprendi violation is resolved conclusively as a matter of law and because he has failed to allege facts that, if true, constitute ineffective assistance of counsel, Mr. Collins is not entitled to a hearing.
IT IS THEREFORE ORDERED BY THE COURT that defendant's motion to vacate, set aside, or correct his sentence for possession of cocaine with the intent to distribute and attempt to distribute cocaine (Doc. 84) is denied.