Opinion
Civil Action No. 01-11271-WGY
May 10, 2002
MEMORANDUM AND ORDER
On June 26, 2001, Michael Francis Murray ("Murray") applied to the United States Court of Appeals for the First Circuit for leave to file a second or successive petition under the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (relevant portions codified at 28 U.S.C. § 2255), to vacate a thirty-year sentence he received in this Court in 1994 after being convicted of trafficking in marijuana. In his application, Murray asserts that because the quantity of drugs involved was neither charged in the indictment nor proved to the jury beyond a reasonable doubt, his sentence — which exceeds the five-year maximum sentence for marijuana offenses for which no quantity is established, 21 U.S.C. § 841(b)(1)(D) — is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Id. at 490.
In response to Murray's application, the First Circuit, expressing doubt that this was in fact Murray's second or successive petition, transferred the case to this Court so that Murray's petition may be treated as an initial petition for relief pursuant to section 2255. In response to that transfer order, this Court requested additional briefing from the parties regarding whether Apprendi applies retroactively to cases on collateral review, and whether Murray's petition is premature in light of the fact that neither the Supreme Court nor the First Circuit has made Apprendi retroactive to cases on collateral review. Having received the requested additional briefing, the Court now holds that Apprendi does not apply retroactively to cases on collateral review.
The confusion stems from the fact that Murray had in the past filed a pleading this Court styled as a petition for a writ of habeas corpus. Murray v. United States, No. 00-11603-WGY (D.Mass. filed July 10, 2000). That petition was dismissed by this Court on September 4, 2000 as being utterly frivolous, and the case was closed two days later. Murray's first petition was gibberish, unintelligible save for his plea to be released from prison; he may well not have understood that he was compromising his right to file an intelligible petition later, and this Court did not apprise him of that possibility. That petition thus does not count as his first habeas petition, and this application may be treated as an initial petition, rather than a second or successive petition. Raineri v. United States, 233 F.3d 96, 100 (1st Cir. 2000).
The Court first addresses the threshold question of who may decide whether Apprendi and other new rules of constitutional law apply retroactively to cases on collateral review. The government cites Tyler v. Cain, 533 U.S. 656 (2001), for the proposition that only the Supreme Court may declare a new rule of constitutional law retroactively applicable to cases on collateral review. Undermining the government's position, however, is the fact that numerous lower federal courts, assuming that they need not wait for the Supreme Court to decide the issue, have engaged independently in the analysis outlined in Teague v. Lane, 489 U.S. 288, 310-14 (1989), and have decided whether Apprendi applies retroactively to cases on collateral review. Compare, e.g., United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001) (holding that Apprendi does not constitute a "watershed rule" of criminal procedure warranting its retroactive application to habeas petitions), United States v. Sanders, 247 F.3d 139, 146-51 n. 4 (4th Cir. 2001) (same), Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000) (same), and Vazquez v. United States, 147 F. Supp.2d 55, 57-58 (D.P.R. 2001) (holding and collecting district court cases that hold Apprendi to be inapplicable on collateral review), with Reynolds v. Cambra, 136 F. Supp.2d 1071, 1087-93 (C.D.Cal. 2001) (concluding that Apprendi does apply retroactively), Darity v. United States, 124 F. Supp.2d 355, 358-60 (W.D.N.C. 2000) (same), overruled by Sanders, 247 F.3d at 146-51, and United States v. Murphy, 109 F. Supp.2d 1059, 1063-64 (D.Minn. 2000) (same), rev'd, 268 F.3d 599 (8th Cir. 2001).
Darity and Murphy were overruled and reversed on the ultimate question whether Apprendi applies retroactively as a "watershed" development in constitutional criminal procedure under Teague, not on the threshold question whether lower federal courts have the power to declare new rules of constitutional procedure retroactively applicable on initial habeas petitions. Indeed, in overruling or reversing the district courts on the ultimate issue, the appeals courts necessarily assumed that they, and not just the Supreme Court, have the power to pass on the applicability of Apprendi to habeas petitions. Sanders, 247 F.3d at 146 n. 4; see also Murphy, 268 F.3d at 601 (citing United States v. Moss, 252 F.3d 993 (8th Cir. 2001), in which the Eighth Circuit reached and rejected the argument that Apprendi is a watershed rule of constitutional procedure that may be applied to habeas petitions, id. at 997-1001). Once it is accepted that circuit courts may declare new rules of constitutional procedure applicable to collateral review of criminal convictions, it must be accepted that district courts, too, have the power to make such declarations, as nothing in the language of the statute makes a distinction between district and circuit courts. The only plausible distinction to be gleaned from the words of the statute is one between the Supreme Court and all lower courts. As the Seventh Circuit observed in Ashley v. United States, 266 F.3d 671 (7th Cir. 2001), "District and appellate courts . . . may issue opinions `holding' that a decision applies retroactively to cases on collateral review. The jurisdictional (and precedential) scope of that holding differs, but it is a holding nonetheless." Id. at 673.
To be sure, these cases were decided prior to the Supreme Court's decision in Tyler, in which Supreme Court held that only an express holding by the Supreme Court that a new rule of constitutional procedure applies retroactively satisfies the provision of 28 U.S.C. § 2244 allowing state prisoners to launch second or successive attacks on their convictions on the basis of "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Tyler, 533 U.S. at 662 (citing 28 U.S.C. § 2244(b)(2)(A)). But these cases remain good law after Tyler because Tyler addressed only the section of AEDPA governing second or successive petitions, not the section governing initial petitions. This is a significant distinction, because the language used in the two provisions is slightly different:
Although Tyler addressed the provision of AEDPA dealing with second or successive habeas petitions for state prisoners, 28 U.S.C. § 2244(b)(2)(A), the language in that provision is identical to the language used in the provision governing second or successive petitions for federal prisoners, 28 U.S.C. § 2255 ¶ 8, which would apply to Murray were this his second or successive habeas petition.
A 1-year period of limitation shall apply to [an initial petition] under this section. The limitation period shall run from the latest of —
. . . .
(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[.]28 U.S.C. § 2255 ¶ 6; accord id. § 2244(d)(1)(C).
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
. . . .
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Id. § 2255 ¶ 8 (emphasis added); accord id. § 2244(b)(2)(A).
With respect to second or successive petitions, Congress explicitly reserved for the Supreme Court the power to make a rule retroactively applicable to cases on collateral review. No such explicit reservation is found in the provision governing initial petitions. This Court assumes that the decision of Congress to use different language with respect to initial petitions vis-a-vis second or successive petitions was deliberate, and that, had Congress intended to allow only the Supreme Court to announce new rules of constitutional law to be retroactively applicable on initial petitions, it would have used the same clear language it used with respect to second or successive petitions. See, e.g., Duncan v. Walker, 533 U.S. 167, 173 (2001) ("It is well settled that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (internal quotation marks omitted).
At least three courts of appeals have identified the different linguistic formulation in these two provisions as a reason to allow district and appellate courts to decide the retroactive applicability of a new rule of constitutional law announced by the Supreme Court when reviewing an initial petition. In Ashley v. United States, 266 F.3d 671 (7th Cir. 2001), the Seventh Circuit held that "[a] district judge may determine whether a novel decision of the Supreme Court applies retroactively, and thus whether a collateral attack is timely under § 2244(b)(2)(A) or § 2255 ¶ 6(3)." Id. at 674. In so holding, that court overruled a Seventh Circuit case that was not even six months old, Montenegro v. United States, 248 F.3d 585 (7th Cir. 2001), which had held that "[u]nless and until the Supreme Court itself declares that . . . [a new rule of con-stitutional law] applies retroactively on collateral review, [an initial habeas petitioner] cannot take advantage of § 2255 ¶ 6(3) to obtain additional time for initiating a collateral attack," id. at 593-94. The panel in Ashley did so in order to bring the Seventh Circuit into line with the Fifth Circuit, which had held in United States v. Lopez, 248 F.3d 427 (5th Cir. 2001), that the initial petition provision of section 2255 "does not require that the retroactivity determination must be made by the Supreme Court itself," id. at 432. See Ashley, 266 F.3d at 674. In addition to the Fifth and the Seventh Circuits, the Fourth Circuit has stated that "[s]ince the language of [section 2255 ¶ 6(3) governing initial petitions] differs from the language governing second or successive motions, it is possible that lower courts can declare new rules retroactive on initial petitions." United States v. Sanders, 247 F.3d 139, 146 n. 4 (4th Cir. 2001) (emphasis added). Although the First Circuit has not weighed in on this issue, this Court is persuaded that the gloss placed on the initial petition provision of AEDPA by the Fourth, Fifth, and Seventh Circuits is the correct one.
There are, in addition, several prudential reasons why the interpretation of the initial petition provision endorsed by the Fourth, Fifth, and Seventh Circuits is preferable to the one suggested by the government. First, it might be necessary for a lower court to reach the question whether a new rule of criminal procedure applies retroactively in order to present the issue before the Supreme Court. Ashley, 266 F.3d at 673. Were lower courts to duck the question on the ground that they lacked the authority to pass on the question, the question might never properly be presented for decision by the Supreme Court. This would stunt the growth of the law in this area, where clarifying decisions are so badly needed. It might also effectively render nugatory the provisions of AEDPA allowing second or successive petitions when the Supreme Court declares a new rule of criminal procedure retroactively applicable to habeas cases, 28 U.S.C. § 2244(b)(2)(A); id. § 2255 ¶ 8(2), because the Supreme Court would never have a chance to do so. Second, there is no time limit for a district court to decide the merits of an initial petition, see Duncan, 533 U.S. at 186 (Breyer, J., dissenting) (citing a 1995 Justice Department report observing that "on the average, district courts took 268 days to dismiss [habeas] petitions"), but a circuit court has only thirty days to decide whether to allow a second or successive petition to go forward, 28 U.S.C. § 2244(b)(3)(D). This distinction suggests that district courts may take the time on an initial petition to engage in a Teague retroactivity analysis of a new rule of criminal procedure, while circuits courts, in deciding whether to allow a second or successive application, should merely conduct a rote inquiry into whether the Supreme Court has held a new rule retroactively applicable. Ashley, 266 F.3d at 673. Finally, to read the initial petition provision as restrictively as the second or successive petition provision would be at odds with the general structure of AEDPA, which is to give a prisoner "one full opportunity to wage a collateral attack," id., and then to constrict significantly the prisoner's ability to mount successive attacks.
On the other side of the coin, one reason not to read the initial petition provision of AEDPA as allowing lower federal courts to make retroactivity determinations is that it would lead to an uneven application of an already byzantine set of rules for obtaining collateral relief from criminal convictions. To begin with, under such a regime the answer to the question whether a particular prisoner is entitled to collateral relief on the basis of a new rule of criminal procedure announced by the Supreme Court might differ depending on where the petition is brought. Next, assuming that the one-year statute of limitations for initial petitions begins to run from the date on which an appropriate court — a court with territorial jurisdiction over the action or the district court that sentenced the petitioner, for example — declares the rule to be retroactively applicable, the statute of limitations will expire at different times depending on the location of the action. Finally, if district courts, in addition to circuit courts, are allowed to pass on the retroactive applicability of new rules, prisoners will have to comb the pages of the Federal Supplement to see if the judges who sentenced them have declared a particular rule to be retroactively applicable. This will make navigating through the system of collateral relief from criminal convictions even more difficult than it is already.
Alternatively, a new rule might be considered to be "made retroactive" to cases on collateral review once the new rule is announced by the Supreme Court. See 28 U.S.C. § 2255 ¶ 6(3) ("the date on which the right asserted was initially recognized by the Supreme Court" (emphasis added)). This reading of the statute could yield draconian results. Under this reading, the Supreme Court could announce a new rule, a lower court could make the new rule retroactive to cases on collateral review ten months later, and any prisoner whose conviction or sentence was unlawful under the new rule would only have two months to file a habeas petition. Or, worse still, a lower court could hold a new rule retroactively applicable more than one year after the Supreme Court declares the rule, which would render meaningless this avenue of relief under section 2255. For these reasons and the reasons set out in this Court's opinion in Berthoff v. United States, 140 F. Supp.2d 51, 59-60 (D.Mass. 2001), this Court considers this view of how the statute of limitations for AEDPA works to be incorrect.
Nevertheless, the Court is satisfied that the vector of considerations points in favor of allowing lower federal courts to pass on the retroactive applicability of new rules of criminal procedure announced by the Supreme Court during initial petitions for relief. The most important consideration is the language of the initial petition provisions itself, which appears to contemplate a role for lower courts in the process of determining whether new rules of criminal procedure announced by the Supreme Court apply retroactively. Additionally, such a regime will lead to a richer and more well-developed corpus of decisional law interpreting AEDPA which, given the complexity of the statute, would be a salutary development. Cf. Saucier v. Katz, 533 U.S. 194, 201 (2001) (requiring lower courts, in adjudicating qualified immunity claims, to determine whether a constitutional right exists and was violated in the case, in order to effectuate "the process for the law's elaboration from case to case"). Therefore, this Court will proceed to decide whether Apprendi applies retroactively to cases on collateral review.
In order for Murray to prevail on his section 2255 petition, he must show that the rule announced by the Supreme Court in Apprendi represents a right that has been "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255 ¶ 6(3). Whether Apprendi satisfies this provision is determined by the analysis outlined in a Supreme Court case decided prior to AEDPA that has survived its passage, Teague v. Lane, 489 U.S. 288 (1989). In Teague, the Supreme Court began to articulate what has come to be described as a three-part test for determining whether a new rule of criminal procedure applies retroactively to cases on collateral review. First, this Court must determine when Murray's conviction became final. O'Dell v. Netherland, 521 U.S. 151, 156 (1997). Second, if Apprendi was decided after Murray's conviction became final, this Court must determine whether Apprendi amounts to a "new rule" of criminal procedure. Sanders, 247 F.3d at 146. If Apprendi is such a new rule, then, in the final step, this Court must decline to apply it retroactively to Murray's habeas petition unless it amounts to a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Graham v. Collins, 506 U.S. 461, 478 (1993). Only if an affirmative answer is given to the question asked during the final step of the inquiry may this Court apply Apprendi retroactively to cases on collateral review and thereby offer relief to Murray.
A new rule may also be applied retroactively if it "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in the judgment in part and dissenting in part) (internal quotations omitted)). This exception does not apply to Apprendi, however, as the rule announced in that case does not place certain kinds of conduct, such as drug possession or distribution, beyond the power of the government to proscribe. See, e.g., Sanders, 247 F.3d at 148.
Murray's conviction became final, at the latest, on November 28, 1996, ninety days after the First Circuit issued an un-published opinion affirming this Court's sentence with respect to Murray, at which point Murray's window to seek review of his conviction by the Supreme Court closed. Sup. Ct. R. 13.1. The rule relied upon by Murray to seek relief from his sentence first found expression on March 24, 1999, when the Supreme Court issued its decision in Jones v. United States, 526 U.S. 227 (1999), which declared that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6. Because this rule was announced after Murray's conviction became final, it will not be applied if it is a "new rule" in the legal sense unless it falls within the narrow exception articulated in Teague for watershed rules of criminal procedure.
Alternatively, because Murray did not seek review before the Supreme Court, his conviction may have become final on the date the First Circuit issued its unpublished opinion. The First Circuit has explicitly declined to choose between these two alternatives. Trenkler v. United States, 268 F.3d 16, 22 n. 5 (2001). The choice is irrelevant in this case, however, as Apprendi was decided after Murray's conviction became final under either approach.
The rule announced by the Supreme Court in Apprendi is a "new rule" in the legal sense. In Teague, the Supreme Court stated that "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301. Apprendi was not a mere application of existing precedent, but instead reshaped and redirected existing precedent. Prior to Jones and Apprendi, two cases — Almendarez-Torres v. United States, 523 U.S. 224 (1998), and McMillan v. Pennsylvania, 477 U.S. 79 (1986) — suggested that not every fact that increases the maximum sentence for a particular crime need be charged in an indictment and proved to a jury beyond a reasonable doubt. In Almendarez-Torres, the Supreme Court rejected the argument that the fact of a defendant's prior conviction need be included in the indictment and proved to a jury beyond a reasonable doubt. 523 U.S. at 239. In McMillan, the Supreme Court held that a particular fact — visible possession of a firearm during the commission of an offense — that subjected a defendant to a mandatory minimum sentence of five years need not be submitted to a jury and proved beyond a reasonable doubt. Id. at 84-86. Moreover, prior to Jones and Apprendi, every court of appeals to consider the issue held that drug quantity is not an element of the offense that must be proved to a jury beyond a reasonable doubt, but instead merely a sentencing factor to be found by a judge. E.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996); United States v. Campuzano, 905 F.2d 677, 679 (2d Cir. 1990) (collecting cases).
All of this changed after Apprendi. Now, there is no question but that drug quantity must be submitted to a jury and proved beyond a reasonable doubt. It is also "now clear that, if drug quantity is determined by the sentencing judge rather than by the jury, a defendant's rights are violated when the sentence dictated by the drug quantity is greater than the lowest, un-enhanced statutory maximum prescribed by [21 U.S.C.] § 841(b)." United States v. Westmoreland, 240 F.3d 618, 632 (7th Cir. 2001). See generally id. at 630-33 (describing the effect of Apprendi on federal drug laws). For these and other reasons, all courts that have considered the question have held that the rule announced in Apprendi constitutes a "new" rule of constitutional criminal procedure. E.g., Moss, 252 F.3d at 997-98; Sanders, 247 F.3d at 147; Jones, 231 F.3d at 1237. This Court joins those courts in declaring Apprendi to be a "new" rule of criminal procedure.
A consequence of Apprendi's status as a new rule of criminal procedural is that it will not be applied retroactively to cases on collateral review unless it falls within a very narrow exception to the Teague bar on retroactive application. Only if a new rule constitutes a "watershed rule of criminal procedure" that implicates the fundamental fairness of a trial, without which "the likelihood of an accurate conviction [would be] seriously diminished," will such a rule be applied retroactively. Teague, 489 U.S. at 311-13. The Supreme Court emphasized that because "such procedures would be so central to an accurate determination of innocence or guilt, . . . it [is] unlikely that many such components of basic due process have yet to emerge." Id. at 313. Indeed, since Teague, the Supreme Court has never characterized any of its new rules of criminal procedure as falling within this exception. Sanders, 247 F.3d at 148. It has, however, identified the right to be represented by counsel in all criminal cases involving serious offenses, first recognized in Gideon v. Wainwright, 372 U.S. 335 (1963), as the paradigmatic watershed rule of criminal procedure that would be applied retroactively to cases on collateral review. Saffle v. Parks, 494 U.S. 484, 495 (1990). It is against this exacting standard that the rule announced in Apprendi must be evaluated.
It is hard to overstate the importance of the Supreme Court's decision in Apprendi. It took a universe of facts — all those facts (other than the fact of a prior conviction) that have the effect of exposing the defendant to a greater maximum penalty than that to which he or she would be exposed in the absence of the fact — and essentially ruled them to be "elements" of the offense that must be submitted to a jury and proved beyond a reasonable doubt. When one considers that some facts, like drug quantity, previously had long been submitted only to a judge at sentencing a preponderance-of-the-evidence standard, it cannot be gainsaid that Apprendi has the effect of enhancing the accuracy of criminal trials. Regardless who is the ultimate factfinder, the higher standard of proof means that the government must make that factfinder that much more sure of the existence of that fact than was necessary pre-Apprendi. The Supreme Court has emphasized the role of the reasonable-doubt standard as a "prime instrument for reducing the risk of convictions resting on factual error." In re Winship, 397 U.S. 358, 363 (1970). This higher standard of proof not only enhances the accuracy of criminal convictions, but also improves the fundamental fairness of criminal proceedings. As the Supreme Court observed in Winship, proof beyond a reasonable doubt "provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law." Id. (internal quotation marks omitted). It also avoids the "disadvantage amounting to a lack of fundamental fairness" that would result from a regime in which a defendant "could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case." Id. (internal quotation marks omitted). Finally, this burden of proof in criminal cases is necessary to command the respect and confidence of the public in the criminal justice system, as it reduces the likelihood that the public will perceive that the innocent are being wrongfully convicted, and reassures each citizen that "his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty." Id. at 364. For these reasons, the proof-beyond-a-reasonable-doubt standard is an essential component of due process. Id.
But Apprendi did more than just raise the government's burden of proof with respect to facts that have the effect of raising the maximum penalty to which the defendant is exposed. It also announced that a jury, rather than a judge, must find these facts. The Supreme Court has recognized the fundamental nature of the right to a jury trial in serious criminal cases, dubbing it an "inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. 145, 156 (1968). As with the proof-beyond-a-reasonable-doubt standard, the right to a jury trial is a core element of due process that both the federal government and the states must observe with respect to criminal defendants charged with serious offenses. Id. This Court has on numerous occasions extolled the essential role that the jury plays in insuring justice in a democracy, pointing out that it is the jury that is the actual guarantor of democratic values. E.g., Berthoff v. United States, 140 F. Supp.2d 50, 70-71 (D.Mass. 2001).
It is not surprising, then, that the Supreme Court in Apprendi recognized that it was dealing with "constitutional protections of surpassing importance." 530 U.S. at 476. Nor is it surprising that the dissenters in that case dubbed the rule announced by the majority "a watershed change in constitutional law." Id. at 524 (O'Connor, J., dissenting).
Nevertheless, the rule announced in Apprendi does not constitute a watershed rule of criminal procedure as that phrase was used in Teague, 489 U.S. at 311, and as it has come to be understood in cases applying Teague. As mentioned earlier, the Supreme Court has never found a new rule of criminal procedure announced by it to fall within this exception to the general Teague rule of non-retroactivity. On at least eleven occasions, however, the Supreme Court has ruled that a new rule announced by it did not fall within this exception. See United States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000) (listing cases in which the Supreme Court has declined to apply new rules retroactively as watershed rules of criminal procedure). This is not surprising, given the Supreme Court's observation in Teague that because "such procedures would be so central to an accurate determination of innocence or guilt, . . . it [is] unlikely that many such components of basic due process have yet to emerge." 489 U.S. at 313.
To be sure, Apprendi implicates constitutional concerns of the first order. That does not necessarily mean it ushered in a change as breathtaking as the right to appointed counsel in all serious criminal matters announced in Gideon. Instead, Apprendi is best characterized as an important application of the bedrock guarantees of a right to a jury trial and the protection against conviction except by proof beyond a reasonable doubt, rather than as a core right itself. As the Fourth Circuit observed in Sanders:
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.247 F.3d at 151. Thus, while Winship — requiring proof beyond a reasonable doubt of all elements of an offense — and Duncan — requiring trials by jury in all serious criminal cases — are core constitutional protections for those accused of crimes, Apprendi merely applies these two cases and dictates when these rights attach — i.e., when the fact at issue has the effect of enhancing the defendant's sentence beyond the statutory maximum.
That Apprendi is not as fundamental to our system of criminal justice as, say, the right to appointed counsel is apparent for a number of reasons. First, as the dissent in Apprendi pointed out, it would be perfectly permissible after Apprendi for a legislature to set the maximum punishment for a particular crime very high, and give judges broad discretion to pick a sentence within a broad range of possible penalties. 530 U.S. at 540-43 (O'Connor, J., dissenting). For example, with respect to drug crimes, Congress could simply set the maximum penalty for possession with intent to distribute any drug at life imprisonment, and then provide factors that a judge may use to select some penalty below that mark. See Moss, 252 F.3d at 1000. In contrast, it would be impossible for a legislature to draft its way around Gideon, except to set the maximum potential penalty for a class for crimes very low (in order to prevent the right to appointed counsel from attaching), which it would be unlikely to do with respect to very many crimes. As a practical matter, then, a little clever drafting by legislatures could blunt most of the force of the rule announced in Apprendi.
Moreover, Apprendi applies to a much smaller class of criminal defendants than does, for example, Gideon. The Supreme Court has intimated that the breadth of a new rule's sweep informs the determination of whether it should be applied retroactively to cases on collateral review. Netherland, 521 U.S. at 167 (1997); see also Mandanici, 205 F.3d at 528. As the Fourth Circuit observed in Sanders, "Gideon . . . was remarkable in part because of its sweeping breadth. In contrast, Apprendi merely applies to the subsection of criminal defendants whose maximum punishment may be increased by a sentencing factor." 247 F.3d at 150. Because Apprendi does not offer any new ammunition to most persons facing criminal charges, it does not represent a change in the landscape of criminal procedure as profound as the one recognized by the Supreme Court in Gideon.
Finally, courts of appeals that have identified Apprendi error in cases on direct review have nonetheless subjected it to harmless-error or plain-error review, e.g., United States v. Terry, 240 F.3d 65, 72-74 (1st Cir. 2001) (subjecting alleged Apprendi error to plain-error review because the defendant did not raise the issue at trial, and holding that such an error did not affect the defendant's "substantial rights"); United States v. White, 240 F.3d 127, 133-36 (2d Cir. 2001) (same), instead of declaring such an error a "structural error" that mandates automatic reversal of the conviction, Arizona v. Fulminante, 499 U.S. 279, 308-10 (1991) (cataloging structural errors); Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (stating that structural errors mandate automatic reversal of conviction). While the analysis conducted to determine the significance of a trial error on direct review is distinct from that employed to determine whether an error may be the basis for invalidating a conviction or sentence on collateral review, courts have generally assumed that an error must at least be a structural error in order for it to amount to a violation of a watershed rule of criminal procedure. E.g., Moss, 252 F.3d at 1001 ("[A] watershed rule must be more `fundamental' than a structural error."); Sanders, 247 F.3d at 150-51 ("[F]inding something to be a structural error would seem to be a necessary predicate for a new rule to apply retroactively under Teague."). In other words, finding a violation of a particular rule of criminal procedure to constitute structural error is a necessary, although not necessarily sufficient, condition to concluding that the rule violated is a watershed rule of criminal procedure. Because Apprendi has not been recognized as a rule the violation of which constitutes a structural error, it is hard to imagine how it could be conceived of as a watershed rule of criminal procedure.
For these reasons, this Court is convinced that, although the Supreme Court's decision in Apprendi represents a significant new development in criminal procedure, it fails to satisfy the exacting standard set out in Teague that would allow it to be applied retroactively to cases on collateral review. Therefore, the Court DENIES Murray's petition for relief under section 2255 [Docket No. 1]. Nevertheless, the questions raised here are of constitutional magnitude, as that phrase has come to be broadly understood. Slack v. McDaniel, 529 U.S. 473, 483-85 (2000); Gaskins v. Duval, 183 F.3d 8, 9 n. 1 (1st Cir. 1999). Accordingly, the Court grants a certificate of appealability to Murray pursuant to 28 U.S.C. § 2253(c) and Rule 22(b) of the Federal Rules of Appellate Procedure on the questions (a) whether lower federal courts may decide the retroactive applicability of new rules of criminal procedure on initial petitions relief under 28 U.S.C. § 2255; and (b) whether the rule announced by the Supreme Court in Apprendi applies retroactively to cases on collateral review. Murray may take these questions up with the First Circuit if he so desires.