Opinion
Civil Action No. 3:01CV-P168-S; Criminal Action No. 3:98CR-139-03-S
August 7, 2001
MEMORANDUM OPINION
This matter is before us for consideration of the motion of Thomas Alfred Hennig ("Hennig") to vacate, set aside, or correct the sentence imposed upon him. The matter having been fully briefed, it is now ripe for our review.
Hennig's conviction of violating 21 U.S.C. § 841 (a)(1) and 846 was entered on March 15, 1999. See Judgment and Commitment, DN 69. Because Hennig never appealed his conviction, it became final on March 25, 1999. See Fed.R.App.P. 4(b), 26(a); Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000). Hennig subsequently filed his motion to vacate pursuant to 28 U.S.C. § 2255 ("§ 2255") on April 16, 2001. As both parties have noted, this filing is untimely, and dismissal of Hennig's petition is warranted, unless Hennig's petition is based on a right that was newly recognized by the United States Supreme Court within one year before his filing and has been made retroactively applicable to cases on collateral review. See § 2255.
Hennig asserts as the basis for his § 2255 petition the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Court recognized for the first time that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-63. Since Apprendi was decided within a year before Hennig filed his § 2255 petition, his filing was timely if Apprendi may be retroactively applied to cases on collateral review.
We confronted this issue recently in the matter of Portuondo-Gonzales v. United States, Civil Action No. 3:00CV-P708-S, Memorandum Opinion Order (May 31, 2001) (hereinafter referred to as " Portuondo"), where we concluded that the rule of Apprendi was a new rule of criminal procedure that has not been made retroactively applicable to cases on collateral review. See Portuondo at 7. Relevant to whether Hennig's § 2255 petition was timely filed, we held:
While the Sixth Circuit has not addressed whether Apprendi announced a "newly recognized" right, other courts have uniformly concluded that it did, and we join those courts in that conclusion. See, e.g., United States v. McIntosh, 236 F.3d 968, 974-75 (8th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000).
Whether Apprendi is retroactively applicable to cases on collateral review is less clear because the Supreme Court has not explicitly made it so. See Jackson v. United States, 129 F. Supp.2d 1053, 1057 (E.D.Mich. 2000). However, the analysis in which a court must engage to determine the retroactivity of any rule in cases on collateral review is well-established.
Lower courts are at odds over whether § 2255 authorizes them to determine whether a new rule may be applied retroactively to cases on collateral review or whether only the Supreme Court may make this determination. Compare Jackson, supra, with United States v. Wood, 2001 WL 322009 (N.D.Ill. Apr. 2, 2001). Because we ultimately conclude that Apprendi may not be applied retroactively on collateral review, we need not address whether lower courts may make this determination. See United States v. Sanders, 247 F.3d 139, 146 n. 4 (4th Cir. 2001).
First, a reviewing court must determine whether the rule sought to be applied retroactively is a rule of substantive criminal law or a rule of criminal procedure. If it is the former, then it will generally apply retroactively to cases on collateral review. See United States v. Mandanici, 205 F.3d 519, 525 (2d Cir. 2000) (noting that "[w]hile a new rule of constitutional criminal procedure generally does not apply retroactively on collateral review, a new rule of substantive criminal law is presumptively retroactive . . ."). If the rule is a new rule of criminal procedure, however, it will not be retroactively applied unless it falls within one of two exceptions. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1061, 103 L.Ed.2d 334 (1989) (holding that "new rules generally should not be applied retroactively to cases on collateral review").
While the conclusions reached by lower courts that have considered whether the rule of Apprendi is one of substantive criminal law or one of criminal procedure are far from uniform, we find the reasoning of the Court of Appeals for the Fourth Circuit in United States v. Sanders, 247 F.3d 139 (4th Cir. 2001), to be persuasive. We agree with that court's conclusion that the rule of Apprendi was one of criminal procedure because it "dictates what fact-finding procedure must be employed to ensure a fair trial." Id. at 147 (citations omitted). The Apprendi court was not asked to interpret a substantive criminal statute as is usually the case when the Court announces a new rule of substantive criminal law. See, e.g., Bousley v. United States, 523 U.S. 614, 620-21, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Murr v. United States, 200 F.3d 895, 905-906 (6th Cir. 2000). Rather, the issue that confronted the Court was whether New Jersey's procedure for enhancing criminal sentences based on certain factors was consistent with the Constitution. Therefore, we find that Apprendi announced a new rule of criminal procedure, the retroactive application of which is governed by Teague.
As noted above, Teague holds that new rules of criminal procedure generally may not be applied retroactively to cases on collateral review. See Teague, 489 U.S. at 310. However, the Court recognized two exceptions to this general rule. First, a new rule of criminal procedure may be applied retroactively to cases on collateral review if the rule "places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971). Second, retroactive application is proper if the new rule is a "`watershed rule of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (quoting Teague, 489 U.S. at 311).
On the facts before us, only the second exception to Teague's general rule is potentially applicable. See Ware v. United States, 124 F. Supp.2d 590, 593 (M.D.Tenn. 2000). That is, the rule of Apprendi may be applied retroactively to Portuondo's petition only if it is a rule of criminal procedure "without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313. Subsequent Supreme Court decisions have made clear that 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, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Therefore, we must consider whether Apprendi falls within this limited exception to the general rule of Teague.
A majority of lower courts that have considered this issue has determined that the rule announced in Apprendi was a rule of criminal procedure which is not so important as to justify departing from the general prohibition against retroactive application in cases on collateral review. See, e.g., Sanders, 247 F.3d at 147-51; Ware, 124 F. Supp.2d 590, 599-600; United States v. Pittman, 120 F. Supp.2d 1263, 1270 (D.Or. 2000). These courts based their conclusions on two aspects of Apprendi which they determined do not satisfy Teague's requirements.
First, these courts determined that Apprendi does not greatly improve "the likelihood of an accurate conviction." Teague, 489 U.S. at 313. While they concede that a jury applying a reasonable doubt standard may "promote marginally more accurate results," Sanders at 149-50, these courts have ultimately concluded that "shifting an element of the offense from jury to judge and utilizing a preponderance rather than a beyond a reasonable doubt standard does not implicate fundamental fairness" so as to come within Teague's second exception. Pittman, 120 F. Supp.2d at 1270.
Second, courts which have concluded that Apprendi does not fall within Teague's second exception found that its rules are not "the types of watershed rules implicating fundamental fairness that require retroactive application on collateral attack." Sanders at 148. Citing the Supreme Court's use of the defendant's right to counsel in criminal trials for serious offenses announced in Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), as an example of the sort of rule that would come within the exception, see Saffle, 494 U.S. at 495, these courts have determined that the rule of Apprendi lacks the requisite "primacy and centrality." See Sanders at 150.
In contrast with this majority position, a few lower courts have concluded that the rule of Apprendi is "so grounded in fundamental fairness that it may be considered of watershed importance." United States v. Murphy, 109 F. Supp.2d 1059, 1064 (D.Minn. 2000). See also Darity v. United States, 124 F. Supp.2d 355, 359-61 (W.D.N.C. Dec. 4, 2000); United States v. Hernandez, ___ F. Supp.2d ___, 2001 WL 339164, at *8 (N.D.Ohio. Mar. 30, 2001). These courts relied upon the significant roles that the jury and the reasonable doubt standard of guilt play in "the American scheme of criminal procedure." Hernandez at *9 (citations omitted). Finding that the effect of Apprendi is as "sweeping" and "profound" as that of Gideon, these courts concluded that Apprendi may be applied retroactively to cases on collateral review. See Murphy at 1064; Hernandez at *9.
With respect to whether Apprendi comes within Teague's second exception, we again find ourselves in agreement with the Fourth Circuit's holding in Sanders. We find that the rule Apprendi announced is not such a "paradigmatic watershed principle" as to justify its retroactive application to cases on collateral review for two reasons.
First, while accuracy may be improved by submitting elements such as drug quantity to a jury for a determination beyond a reasonable doubt, we do not believe that such a shift is fundamental to the fairness of the proceedings. See Ware, 124 F. Supp.2d at 599-600 ("It is difficult to imagine a case in which the accuracy of the weight of the drugs is so disputed that a reasonable doubt standard as applied by a jury will greatly increase the likelihood of an accurate determination and thereby increase the fundamental fairness of the trial."). That this is so is reflected by "the fact that the majority of the federal circuit courts have subjected Apprendi claims to harmless and plain error review." Sanders at 150 (citations omitted). For us to conclude that a failure to comply with Apprendi is not "structural error," and then to apply Apprendi retroactively because of its watershed importance would be inconsistent. See id.
Second, we believe the second Teague exception is so narrow that all but the most fundamental rules of criminal procedure are excluded from its coverage. Support for this finding is abundant. The Teague Court itself noted:
Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also of the view that such rules are "best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus — that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods."Id. at 313-14 (quoting Rose v. Lundy, 455 U.S. 509, 544, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (Stevens, J., dissenting) (footnotes omitted).
Also, since Teague was decided in 1989, the Supreme Court has never used Teague's second exception to justify the retroactive application of a new rule of criminal procedure. See Mandanici, 205 F.3d at 529 (noting that "[b]eginning with the rule at issue in Teague, the Court has measured at least eleven new rules, or proposed new rules, of criminal procedure against the criteria for the second exception and, in every case, has refused to apply the rule at issue retroactively"). Finally, the Sanders court's conclusion is especially persuasive:
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.Sanders, 247 F.3d at 151.
The right to trial by jury and the right to be proven guilty beyond a reasonable doubt are "bedrock elements essential to the fairness of a proceeding." While the rule announced in Apprendi is an application of those bedrock principles, "[t]he Supreme Court has never intimated that [such] offshoot cases would somehow automatically apply retroactively simply because they bear some level of descendancy to [their] ancestral rule[s]. . . ." Id. We find that the rule of Apprendi may not be applied retroactively to Portuondo's § 2255 petition and that, therefore, that part of his petition which relied upon Apprendi will be dismissed.Portuondo at 3-9.
Consistent with our analysis in Portuondo, and because of its dispositive effect on the matter now before us, Hennig's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 will be denied. The motion of the United States to dismiss Hennig's petition will be granted, and Hennig's petition will be dismissed. A separate order will be entered this date in accordance with this opinion.
ORDER
Motion having been made, and the court being otherwise sufficiently advised, and for the reasons set forth in the accompanying memorandum opinion, IT IS HEREBY ORDERED AND ADJUDGED that the motion of Thomas Alfred Hennig to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that the motion of the United States to dismiss Hennig's petition is GRANTED, and Hennig's petition is DISMISSED.