Opinion
Criminal Action No. 3:88CR-58-B, Civil Action No. 3:97CV-243-S
June 14, 2001
MEMORANDUM OPINION
This matter is before the Court on the motion of the Defendant, Ricky Allen Hays, to be released pending the disposition of Defendants' motion under 28 U.S.C. § 2255. For the reasons stated below, we deny the motion by a separate order entered this date.
FACTS and PROCEDURAL HISTORY
The procedural history of this case is long and complex. Hays was convicted, in 1988, of conspiracy to possess cocaine and marijuana with intent to distribute and of possession of marijuana with intent to distribute. Hays was eventually sentenced, after the resolution of numerous legal issues, to 327 months' imprisonment. This sentence was affirmed by the Sixth Circuit Court of Appeals in 1992, which represented the end of Hays' direct legal challenges to his trial and sentence.
Since then, Hays has made several collateral attacks on the trial and sentence, and currently, there is pending before us his amended motion for relief under 28 U.S.C. § 2255, which is not yet fully briefed. Nevertheless, in the matter currently before us, Hays moves us to release him while we decide the substantive law issues contained in the pending § 2255 motion.
DISCUSSION
A prisoner may be entitled to release pending the disposition of his habeas petition if he can show: (1) a substantial claim that he is unconstitutionally confined; and (2) that there are exceptional circumstances such that special treatment is warranted in the interests of justice. Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990) ( quoting Aronson v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6, 9 (1964) (Douglas, J., in chambers)). We find that Hays cannot satisfy the first of these two necessary elements and, therefore, that he is not entitled to be released.
In his memorandum, Hays argues that he has a substantial claim that he is unconstitutionally confined based upon the recent Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Sixth Circuit decisions which have interpreted Apprendi. Hays' motion under § 2255 contains three additional grounds for relief, but those grounds are not addressed in this motion and are not the type which would, in most instances, warrant the kind of relief he now requests.
Although neither party has raised the issue, we recently addressed whether Apprendi may be retroactively applied in cases, like Hays', in which the unconstitutional claim is raised on collateral attack. See Portundo-Gonzales v. United States, 3:98CR-67-S; 3:00CV-P708-S (W.D.Ky. May 31, 2001). In concluding that Apprendi could not be used in a collateral attack, we reasoned as follows:
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.
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. [citation omitted] 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). . . . 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. 491 [ 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. . . .
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. . . .
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. . . .
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. . . .Portundo-Gonzale, 3:98CR-67-S; 3:00CV-P708-S at 2-9 (footnotes omitted).
While our decision in Portundo-Gonzales does not necessarily foreclose the granting of § 2255 relief in this case, it significantly undermines Hays' ability to articulate a substantial claim that he is unconstitutionally confined. We find, therefore, that Hays does not have a substantial claim for which he is likely to prevail on the merits. Instead, the determination of his entitlement to release should await a full briefing and investigation of the facts and issues.
Portundo's § 2255 claim was dismissed for failure to satisfy the one year statute of limitations.
We recognize Hays' interest in a speedy resolution of his claims, as he alleges that he has already served more prison time than the court was constitutionally authorized to sentence. To that end, we grant, by separate order, Hays' Motion for Leave to Amend and Supplement Motion for Relief under Section 2255. Hays' amended motion will become part of the record, and the United States will be required to respond in accordance with the Federal Rules of Civil Procedure.
CONCLUSION
Hays has failed to establish that he has a substantial claim that he is unconstitutionally confined and, therefore, is not entitled to be released pending the resolution of his 28 U.S.C. § 2255 claims. We deny Hays' motion by separate order entered this date.
ORDER
For the reasons set forth in the memorandum opinion entered this date and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the Defendant's motion for Release is DENIED.
IT IS SO ORDERED.