Browning v. United States

F I L E D
United States Court of Appeals
Tenth Circuit

MAR 1 2001
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

EDWIN GAYLE BROWNING,

Petitioner-Appellant,

v. No. 00-7096
(E. Dist. Okla.)
UNITED STATES OF AMERICA,

Respondent-Appellee.

ON APPLICATION FOR AUTHORIZATION TO FILE
SECOND OR SUCCESSIVE HABEAS MOTION
UNDER 28 U.S.C. § 2255

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender and Vicki Mandell-King, Assistant Federal Public Defender, with
him on the briefs), Denver, Colorado, for Petitioner-Appellant.

Nina Goodman, Department of Justice, Washington, D.C. (Daniel G. Webber, Jr.,
United States Attorney, Leslie M. Maye, Assistant U.S. Attorney, Western District
of Oklahoma; Bruce Green, United States Attorney and Paul G. Hess, Assistant
U.S. Attorney, Eastern District of Oklahoma; and Michael A. Rotker, Department
of Justice, Washington, D.C., with her on the brief), for Respondent-Appellee.

Before TACHA, Chief Judge, SEYMOUR, BALDOCK, BRORBY, EBEL,
KELLY, HENRY, BRISCOE, LUCERO and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.
 Edwin Gayle Browning requests leave to file a second or successive

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (1996),

arguing the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S.Ct.

2348 (2000), renders his sentence unconstitutional. We may grant leave to file

such an application if it relies upon "a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable." 28 U.S.C. § 2255. We granted en banc review to

consider the following two questions: (1) the proper retroactivity test under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (1996), for authorization to file second or successive

habeas petitions; and (2) whether Apprendi enunciates “a new rule of

constitutional law” that has been “made retroactive to cases on collateral review

by the Supreme Court” within the meaning of section 2255. 1

For the reasons set out below, we hold the proper retroactivity test for

second or successive habeas applications under AEDPA is whether the Supreme

Court has specifically declared the new rule to be retroactive to cases on

collateral review. We further hold that the Court has not yet done so for

1
We consolidated Mr. Browning’s application with another pro se
application for permission to file a second or successive petition, appointed joint
counsel for both, and heard oral arguments on both. As the other application
raises an issue not relevant to Mr. Browning’s petition, however, we have now
severed the two applications and will issue separate decisions.

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Apprendi. Consequently, we deny Mr. Browning’s request for leave to file a

habeas motion.

I

JURISDICTION

As a preliminary matter, we note that 28 U.S.C. § 2244(b)(3)(D), made

applicable to federal prisoners by section 2255 para. 8, provides that courts

should grant or deny authorization to proceed with second or successive habeas

motions within thirty days of a request. Petitioner's request was filed in August

2000, and the thirty-day period has expired. Nevertheless, we agree with other

circuits that the time limit in section 2244(b)(3)(D) is "hortatory or advisory

rather than mandatory." Rodriguez v. Bay State Correct’l Ctr., 139 F.3d 270, 272

(1st Cir. 1998) (quoting In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997), and

noting statute attaches no consequences to noncompliance), abrogated on other

grounds, Bousley v. United States, 523 U.S. 613 (1998); see also Gray-Bey v.

United States, 201 F.3d 866, 867-69 (7th Cir. 2000); Galtieri v. United States,

128 F.3d 33, 36-37 (2d Cir. 1997); In re Vial, 115 F.3d 1192, 1194 n.3 (4th Cir.

1997) (en banc). While we will consider most section 2255 motions within the

allotted thirty days, this case represents the more complex situation for which that

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limit is not practicable. We are convinced we continue to have jurisdiction over

such motions notwithstanding the expiration of the thirty-day period.

II

HABEAS APPLICATIONS UNDER AEDPA

The first specific question we asked the parties to address is: Does the

retroactivity analysis set out in Teague v. Lane, 489 U.S. 288 (1989), and

subsequent Supreme Court jurisprudence interpreting Teague survive AEDPA,

and if not, what is the proper retroactivity test under AEDPA for authorization to

file second or successive habeas petitions? We hold that, while a Teague analysis

remains applicable to initial habeas applications raising new rules of

constitutional law under section 2255, the proper test on a second or successive

application is merely to ask whether the rule has been made retroactive by the

Supreme Court. We further hold that a rule is “made retroactive” by the Court

only if the Court actually applies the rule retroactively, or makes some explicit

statement regarding retroactivity.

Applications by federal prisoners for a writ of habeas corpus are governed

by 28 U.S.C. § 2255, which provides that a prisoner who

claim[s] the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum

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 authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or
correct the sentence.

Id. para. 1. Section 2255 establishes varying procedures for initial and for second

or successive habeas applications.

Initial motions under section 2255 are to be filed with and considered by

the court which imposed the sentence, with certain options for appeal thereafter.

See id. para. 1-5; see also In re Hanserd, 123 F.3d 922, 925 (6th Cir. 1997)

(discussing differences between section 2255 motions and traditional habeas

petitions). If the basis for relief depends upon a new rule of constitutional law

announced after the conviction became final, consideration of the motion

proceeds under the analytical framework established by the Supreme Court in

Teague. Under the Teague analysis, new rules of constitutional law shall not be

available retroactively to prisoners seeking collateral habeas review unless they

either place a class of private conduct beyond the power of the state to proscribe,

or define a “watershed” rule of criminal procedure that implicates the fairness and

accuracy of a criminal proceeding on a fundamental level. 489 U.S. at 311; see

also Tillman v. Cook, 215 F.3d 1116, 1121-22 (10th Cir. 2000) (applying Teague).

Teague’s retroactivity analysis thus determines whether the new rule is applicable

to an initial motion for collateral habeas relief. See Teague, 489 U.S. at 300-01.

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 Prisoners who have been denied habeas relief on past applications may

seek the benefit of new rules of constitutional law through second or successive

applications under section 2255, but the procedural framework differs markedly

from that followed for initial applications. As established by AEDPA, the federal

courts of appeals play an initial “gatekeeping” role in granting or denying a

prisoner authorization to proceed in district court with a second or successive

application for a writ of habeas corpus. An application may progress only if the

court of appeals certifies that it relies on either:

(1) newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.

28 U.S.C. § 2255 para. 8. Thus, for a previously unavailable new rule of

constitutional law to be raised in a second or successive habeas application after

AEDPA, the sole requirement is that the rule have been “made retroactive to cases

on collateral review by the Supreme Court.” Id.

While it is clear that the retroactivity determination for second or

successive habeas applications belongs wholly to the Supreme Court, AEDPA

provides no guidance regarding when or how the Court “makes” a rule

retroactive. The government argues section 2255 requires an actual retroactive

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application of a new rule by the Court, or specific language by the Court to that

effect. See, e.g., In re Vial, 115 F.3d at 1197 ("[A] new rule of constitutional law

has been 'made retroactive to cases on collateral review by the Supreme Court'

within the meaning of § 2255 only when the Supreme Court declares the collateral

availability of the rule in question, either by explicitly so stating or by applying

the rule in a collateral proceeding."). Mr. Browning claims the statutory language

is not so limited, and that the Supreme Court has “made” a case retroactive if the

principles of Teague are met in a given case, as determined by the circuit deciding

the issue.

Mr. Browning relies upon West v. Vaughn, 204 F.3d 53, 59-61 (3rd Cir.

2000), in which the Third Circuit held that “made retroactive” is a broad phrase

which can be met whenever the Supreme Court’s jurisprudence makes clear that a

new rule should be applied retroactively. In West, the Third Circuit applied

Teague and held a new rule retroactive after the Supreme Court declared in a

direct appeal that violation of the rule would be considered structural error. See

id. at 60. The Ninth Circuit also recently held a new rule to be retroactive under

Teague, determining that “Congress incorporated Teague’s retroactivity analysis”

when enacting AEDPA. Flowers v. Walter, No. 99-35552, 2000 WL 33157575, at

*4, 9 (9th Cir. Feb. 9, 2001) (per curiam). Other circuit courts have disagreed

with this approach, holding that the Supreme Court must specifically hold a new

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rule to be retroactive before the new rule can be invoked in second or successive

habeas applications. See, e.g., In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000)

(per curiam); Rodgers v. United States, 229 F.3d 704, 706 (8th Cir. 2000) (per

curiam); Talbott v. Indiana, 226 F.3d 866, 868-69 (7th Cir. 2000); In re Joshua,

224 F.3d 1281, 1283 (11th Cir. 2000) (per curiam); Sustache-Rivera v. United

States, 221 F.3d 8, 15 (1st Cir. 2000); In re Vial, 115 F.3d at 1197. 2

We agree with those circuits holding that section 2255 requires us to await

some specific guidance by the Supreme Court, rather than to apply Teague’s

retroactivity analysis, before we may grant leave to proceed with second or

successive habeas applications which rely on new rules of constitutional law.

AEDPA was intended to streamline the habeas application process, and our role

as gatekeeper is a limited one. Analyzing the Court’s body of jurisprudence with

regard to each new rule of constitutional law would be inconsistent with this

limited role and could lead to unnecessarily varied results among the circuits. We

2
The Supreme Court recently granted a writ of certiorari in Tyler v. Cain,
121 S.Ct. 654 (2000), on the following questions: “(1) Does petition for a writ of
habeas corpus asserting a claim of error under Cage v. Louisiana [the case at
issue in West] rely on ‘new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court,’ within the meaning of 28 U.S.C. §
2244(b)(2)(A)? (2) Should new rule of constitutional law announced by this
Court in Cage v. Louisiana be made retroactively applicable to petitioners seeking
collateral review of their convictions?” Tyler v. Cain, No. 00-5961, 69 U.S.L.W.
3393 (2000). The Court’s upcoming decision in Tyler may answer the questions
we address here.

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therefore must look for specific guidance from the Court in considering whether

Apprendi has been made retroactive to cases on collateral review.

III

RETROACTIVE APPLICATION OF APPRENDI

The second question we asked the parties to address is: Does Apprendi

enunciate “a new rule of constitutional law” that has been “made retroactive to

cases on collateral review by the Supreme Court”? Mr. Browning seeks to

challenge his sentence under Apprendi, which establishes that, contrary to the

nearly universal sentencing practices of the past several years, “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." 120 S.Ct. at

2362-63. Although Apprendi did not explicitly include indictment practices in the

rule, it suggested that the relevant facts must be included in an indictment as well.

See id. at 2356-57. We so held in United States v. Jones, 235 F.3d 1231, 1235

(10th Cir. 2000) (drug quantity must be included in indictment after Apprendi).

Accord United States v. Keith, 230 F.3d 784, 786-87 (5th Cir. 2000) (same);

United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000) (same).

Edwin Browning pled guilty in 1994 to charges of methamphetamine

distribution and possession of a stolen motor vehicle and was sentenced to

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concurrent terms of 292 and 120 months’ imprisonment. See United States v.

Browning, 61 F.3d 752 (10th Cir. 1995) (affirming conviction). He filed a first

petition for habeas corpus relief in 1997, claiming his guilty plea was involuntary

and challenging the application of various sentencing enhancements to his case.

That petition was denied and not subsequently appealed. Mr. Browning now

argues application of Apprendi’s rules would result in a reduction of his sentence.

Because Mr. Browning has filed a previous habeas motion, he must seek

permission from this court to proceed under section 2255.

Mr. Browning asks us to extend the rule of Apprendi to second or

successive habeas motions, which we cannot do unless it is a “new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court.” 28 U.S.C. § 2255 para. 8(2). Because the rule set forth in Apprendi is

rooted in the jury trial and due process guarantees of the Sixth and Fourteenth

Amendments, it can fairly be called a “new rule of constitutional law” under

section 2255. See Apprendi, 120 S.Ct. at 2355-56 (“at stake in this case are

constitutional issues of surpassing importance”); see also Jones v. Smith, 231

F.3d 1227, 1236 (9th Cir. 2000) (holding Apprendi a “new rule of constitutional

law” under Teague); Sustache-Rivera, 221 F.3d at 14-15 (noting constitutional

underpinnings of Apprendi). We thus look to the Supreme Court to see whether it

has made the rule retroactive to cases on collateral review, and we determine that

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it has not. To date, the Court simply has been silent on the repercussions of

Apprendi. No language in Apprendi or in the Supreme Court’s later decisions

even hints at the Court’s decision to make the rule retroactive to cases on

collateral review. Under the specific requirements of AEDPA, we must await that

decision.

In declining to authorize second or successive habeas motions by

retroactively applying Apprendi, we agree with every other circuit that has ruled

on the issue thus far. See In re Tatum, 233 F.3d at 859; Rodgers, 229 F.3d at 706;

Talbott, 226 F.3d at 868-69; In re Joshua, 224 F.3d at 1283; Sustache-Rivera, 221

F.3d at 15. Consequently, we must deny Mr. Browning’s request for leave to file

a habeas application based on Apprendi.

We note, however, that his application is currently “futile, not fatal.”

Talbott, 226 F.3d at 869. Because potentially meritorious claims may not be

considered unless or until the Supreme Court makes Apprendi applicable to

collateral review, our decision does not rest upon the merits of the claim. We

therefore dismiss Mr. Browning’s motion without prejudice in the event of future

action by the Supreme Court.

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 V

CONCLUSION

For the reasons stated above, Edwin Browning’s request for leave to file a

second or successive habeas motion is DENIED without prejudice.

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Browning v. United States, No. 00-7096

MURPHY, Circuit Judge, with whom HENRY, Circuit Judge, joins, dissenting.

I respectfully dissent from the majority’s conclusion that the “made

retroactive” language in paragraph eight of 28 U.S.C. § 2255 is triggered only if

(1) the Supreme Court explicitly states that the newly recognized constitutional

right applies retroactively or (2) the Court applies the rule retroactively. Instead,

I would hold that a new constitutional rule announced by the Supreme Court is

“made retroactive” to cases on collateral review when that new rule satisfies the

rigorous test set out by the Supreme Court in Teague v. Lane, 489 U.S. 288

(1989).

The Supreme Court’s grant of certiorari in Tyler v. Cain, 121 S. Ct. 654

(2000), see Majority Op. at 8 n.2, would appear to obviate the need to set forth a

detailed analysis of my views in this regard. As a consequence, I merely note that

I am convinced by the analyses of the Third Circuit in West v. Vaughn, 204 F.3d

53, 58-63 (3d Cir. 2000) and the Ninth Circuit in Flowers v. Walter, No. 99-

35552, 2000 WL 33157575, at *3-*6 (9th Cir. Feb. 9, 2001). Furthermore, the

statutory language in § 2254(d)(1) demonstrates that when Congress sought to

require an explicit Supreme Court ruling, it knew how to do so. See 28 U.S.C. §

2254(d)(1) (providing that a state prisoner is entitled to habeas relief only if the

relevant state court adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court” (emphasis added)). Finally, the majority’s

interpretation of the eighth paragraph of § 2255 is at odds with a primary goal of

the AEDPA: to have postconviction claims resolved at the earliest possible

opportunity. See Williams v. Taylor, 120 S. Ct. 1495, 1509 (2000) (opinion of

Stevens, J.) (noting that one purpose of AEDPA is to “curb delays”); id. at 1518

(opinion of O’Connor, J.) (same); see also 28 U.S.C. § 2255 para. 6 (setting forth

one-year statute of limitations to the bringing of a § 2255 petition).

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