Opinion
Case No. 96-20031-01-DES, 00-3342-DES.
February 16, 2001.
MEMORANDUM AND ORDER
This matter is before the court on movant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 87) filed pursuant to 28 U.S.C. § 2255 and Motion for Reconsideration Under 28 U.S.C. § 2255 (Doc. 88). Ike McCloud ("McCloud") seeks a new trial based on the Supreme Court's recent holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United States, 526 U.S. 227 (1999). Although Document 88 is entitled Motion for Reconsideration, it is substantively a memorandum in support of the section 2255 motion and will be treated by the court as such. For the following reasons, movant's section 2255 motion is denied.
McCloud was indicted and charged with two counts of distribution of crack cocaine. Count 1 alleged that McCloud distributed approximately three ounces of cocaine base or crack cocaine on March 9, 1996. Count 2 alleged that McCloud distributed approximately nine ounces of crack cocaine on March 14, 1996. On July 20, 1996, McCloud was convicted on both counts and sentenced to two 360 month terms to be served concurrently. McCloud appealed to the Tenth Circuit Court of Appeals, which affirmed the conviction and sentence. See United States v. McCloud, 127 F.3d 1284 (10th Cir. 1997). On September 18, 2000, petitioner filed his first section 2255 motion.
Before the court can assess the merits of McCloud's Apprendi claim, the court must determine whether the Apprendi rule, insofar as it requires the jury to determine the drug quantity beyond a reasonable doubt in order to raise the sentence above the statutory maximum, is a new rule of law that may be retroactively applied to cases on initial collateral review under the Supreme Court holding in Teague v. Lane, 489 U.S. 288 (1989). Retroactivity is a threshold question which must be addressed in every habeas case "before considering the merits of a claim." Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
Our legal system's strong interest in the finality of adjudication bars the application of new judicial decisions such as Apprendi without substantial justification. Teague, 489 U.S. at 308-09. A new rule will not be applied retroactively on collateral review unless it meets one of two narrow exceptions: 1) the new rule places certain kinds of primary, private conduct beyond the power of the criminal law-making authority to proscribe, or 2) the rule requires the observance of those procedures which are implicit in the concept of ordered liberty. Id. at 311. The first exception is not applicable. For the second exception to apply, the criminal rule must "not only improve [the] accuracy [of criminal proceedings], 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) (quoting Teague, 489 U.S. at 311). The new rule will be applied retroactively where both: 1) a failure to adopt the new rule "creates an impermissibly large risk that the innocent will be convicted," and 2) "the procedure at issue . . . implicate the fundamental fairness of the trial." Teague, 489 U.S. at 312.
The new rule in Apprendi (i.e. that every element of the offense, including every fact other than a prior conviction, that increases the penalty of a crime beyond the prescribed statutory maximum, must be submitted to a jury and proven beyond a reasonable doubt) is analogous to the new rule announced in United States v. Gaudin, 515 U.S. 506 (1995). In Gaudin, the Supreme Court held that materiality for purposes of a conviction for false statements under 18 U.S.C. § 1001 must be decided by a jury beyond a reasonable doubt, rather than by a court. Gaudin, 515 U.S. at 522-23. Several circuit courts interpreting Gaudin have held that a jury determination of proof beyond a reasonable doubt in lieu of a judicial determination of proof by a preponderance of the evidence is not a new rule requiring retroactive application. See United States v. Mandanici, 205 F.3d 519, 530-31 (2d Cir.), cert. denied, 121 S.Ct. 190 (2000); United States v. Shunk, 113 F.3d 31, 37 (5th Cir. 1997); United States v. Swindall, 107 F.3d 831, 836 (11th Cir. 1997). The court finds the reasoning of these cases is sound and directly applicable to the Apprendi rule.
The rule in Apprendi is a rule of criminal procedure, not a rule of substantive criminal law. Such a rule does not relate to the accuracy of the conviction or sentence, nor does it implicate the fundamental fairness of the proceeding. Most district courts and at least one circuit court that have addressed the issue have held that Apprendi is not a bedrock principle and does not apply retroactively to cases on initial collateral review. See Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000); Levan v. United States, No. 00-2146, 2001 WL 50502 (E.D.Pa. Jan. 18, 2001); Panoke v. United States, No. 00-00538, 2001 WL 46941 (D. Haw. Jan. 5, 2001); United States v. Brown, No. 97-913, 2000 WL 1880280 (N.D.Tex. Dec. 28, 2000); United States v. Johnson, No. 97-3002, 2000 WL 1801401 (D.Neb. Dec. 7, 2000); United States v. Joseph, No. 96-275, 2000 WL 1789989 (E.D.La. Dec. 5, 2000); Klein v. United States, 125 F. Supp.2d 460 (D.Wyo. 2000); United States v. Pittman, 120 F. Supp.2d 1263 (D.Or. 2000); Ware v. United States, 124 F. Supp.2d 590 (M.D.Tenn. 2000); West v. United States, 123 F. Supp.2d 845 (D.Md. 2000). But see Rogers v. United States, 229 F.3d 704, (8th Cir. 2000) ("We have previously accepted review of Apprendi claims raised in initial § 2255 motions."); United States v. Murphy, 109 F. Supp.2d 1059, 1064 (D.Minn. 2000). The court finds the reasoning in these cases sound.
Based upon the nonretroactivity principle of Teague, McCloud's Apprendi claim is not cognizable on initial collateral review.
IT IS THEREFORE BY THE COURT ORDERED that petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 87) is denied.