Allen v. Reed

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

PUBLISH October 21, 2005

UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT

GERALD ALLEN,

Petitioner-Appellant,

v.

LARRY REED, and JOHN SUTHERS, The
Attorney General of the State of Colorado, No. 03-1185

Respondents-Appellees,

COLORADO STATE PUBLIC
DEFENDER,

Amicus Curiae.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 03-Z-394)

Philip A. Cherner, Denver, Colorado (Edward J. LaBarre, Colorado Springs,
Colorado, with him on the brief), for Petitioner-Appellant.

John D. Seidel, Assistant Attorney General (John Suthers, Attorney General, with
him on the briefs), Denver, Colorado, for Respondents-Appellees.

David S. Kaplan, Colorado State Public Defender, and Andrew C. Heher, Deputy
State Public Defender, filed a brief for Amicus Curiae Colorado State Public
Defender in support of Petitioner-Appellant.
Before LUCERO, SEYMOUR and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.

Gerald Allen is a state prisoner in the custody of the Colorado Department

of Corrections (DOC). He filed a pro se 28 U.S.C. § 2254 petition for a writ of

habeas corpus in federal district court contending his Colorado vehicular eluding

sentence ran afoul of Apprendi v. New Jersey, 530 U.S. 466 (2000). The district

court denied his petition and dismissed the action on the ground that Apprendi

does not apply retroactively to cases on collateral review. Mr. Allen appeals that

decision and we affirm.

I

Mr. Allen was convicted by a jury in Colorado state court of one count of

aggravated motor theft in violation of C OLO . R EV . S TAT . § 18-4-409; one count of

vehicular eluding in violation of § 18-9-116.5; fourteen counts of felony

menacing in violation of § 18-3-206; one count of possession of an incendiary

device in violation of § 18-12-109(2); one count of false imprisonment in

violation of § 18-3-303; one count of misdemeanor failure to leave the premises

in violation of § 18-9-119; and eight counts of criminal attempt to commit

reckless manslaughter in violation of §§ 18-3-104, 18-2-101. People v. Allen, 78

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P.3d 751, 752 (Colo. Ct. App. 2001). 1 Pursuant to Colorado’s general sentencing

laws, the court sentenced Mr. Allen to a series of concurrent and consecutive

terms resulting in a total sentence of thirty years imprisonment. See C OLO . R EV .

S TAT . §§ 18-1.3-401(6) & (7) (formerly C OLO . R EV . S TAT . §§ 18-1-105(6) & (7)).

The sentence included a six-year term for vehicular eluding, the maximum

aggravated sentence permitted for that offense under § 18-1-105(6). Allen, 751

P.3d at 752.

Mr. Allen appealed arguing, inter alia, that his aggravated vehicular

eluding sentence violated Apprendi. Id. at 754. The Colorado Court of Appeals

affirmed the convictions and sentence on direct appeal. See id. at 755. Mr. Allen

then filed a timely petition for a writ of certiorari, which the Colorado Supreme

Court denied on April 15, 2002. Id. at 751.

On March 6, 2003, Mr. Allen filed this federal habeas petition, again

raising Apprendi with regard to his vehicular eluding sentence. Concluding that

Apprendi does not apply retroactively to litigants on collateral review, the district

court dismissed the petition and denied Mr. Allen’s request for a certificate of

appealability. We granted his motion for a certificate of appealability, permitting

him to proceed on appeal on the following two claims: (1) whether the district

1
People v. Allen was originally published at 43 P.3d 689. It was
republished at 78 P.3d 751 to include modifications on denial of rehearing.

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court correctly ruled that Apprendi does not apply retroactively to Mr. Allen’s

sentence, and (2) whether Apprendi renders unconstitutional the Colorado statutes

under which Mr. Allen was sentenced. We address each claim in turn.

II

Determining the applicability of Apprendi to a habeas petition requires us

to decide when Mr. Allen’s conviction became “final” within the meaning of the

relevant statute, here the Antiterrorism and Effective Death Penalty Act

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). 2 See 28 U.S.C. §

2244(d)(1) (indicating state prisoner has one year from the date his conviction

becomes “final” to seek federal habeas relief). Precedent makes clear that

resolving whether a convicted defendant may find refuge in a rule of criminal

procedure newly announced by the Supreme Court depends in large part on

timing. 3 If the conviction is not yet final when the Court announces the rule,

2
Because Mr. Allen’s habeas petition was filed after the effective date of
the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214 (1996), it is governed by AEDPA’s provisions. See
Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001).

3
We have already held that “[b]ecause the rule set forth in Apprendi [v. New
Jersey, 530 U.S. 466 (2000)] is rooted in the jury trial and due process guarantees
of the Sixth and Fourteenth Amendments,”Apprendi announced a “new rule of
constitutional law.” Browning v. United States, 241 F.3d 1262, 1266 (10th Cir.
2001) (citations and internal quotation marks omitted).

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lower courts must apply that rule to the defendant’s case. Griffith v. Kentucky,

479 U.S. 314, 322 (1987). If, however, the conviction is already final, a

defendant ordinarily may not avail himself of the newly announced rule. Teague

v. Lane, 489 U.S. 288, 310 (1989). 4 Thus, our retroactivity analysis hinges

entirely on the meaning of the word “final.”

The Supreme Court has expressly articulated that “[a] state conviction and

sentence become final for purposes of [the Teague analysis] when the availability

of direct appeal to the state courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a timely filed petition has been

finally denied.” Caspari v. Bohlen, 510 U.S. 383, 390 (1994); see also Griffith,

479 U.S. at 321 n.6. (a final conviction means “a case in which a judgment of

conviction has been rendered, the availability of appeal exhausted, and the time

for a petition for certiorari elapsed or a petition for certiorari finally denied”).

Mr. Allen was convicted by a jury on September 4, 1998. He timely filed his

notice of direct appeal on or about November 18, 1998, and his case remained

pending in state court until the Colorado Supreme Court denied certiorari review

on April 15, 2002. Apprendi was decided on June 26, 2000.

4
To be sure, there are specific circumstances in which a newly announced
rule may be applied retroactively to an already final conviction. See Teague v.
Lane, 489 U.S. 288, 310 (1989). Because we hold that Mr. Allen’s conviction
was not yet final when the Supreme Court announced the rule of Apprendi,
however, we need not detain ourselves exploring these exceptions here.

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 As the state concedes in its answer brief, see Aple. Br. at 9, this chronology

discloses Mr. Allen’s conviction was not yet “final” for purposes of AEDPA

when Apprendi was decided. Indeed, Mr. Allen raised Apprendi both before the

Colorado Court of Appeals on initial appeal and in the state supreme court via his

certiorari petition. Because the rule of Apprendi was newly announced prior to

the date on which Mr. Allen’s conviction became final, the rule applies to his case

notwithstanding his invocation of it in a collateral attack. Accordingly, the

district court’s determination that Apprendi does not apply retroactively to Mr.

Allen’s vehicular eluding sentence was erroneous.

III

The closer question is whether Apprendi renders unconstitutional the

Colorado statutes under which Mr. Allen was sentenced. Under AEDPA, a

federal court may not grant habeas relief on a claim adjudicated on the merits in

state court, such as Mr. Allen’s Apprendi claim, unless the state court decision

“was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or

“was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” id. § 2254(d)(2). See Turrentine v.

Mullin, 390 F.3d 1181, 1188 (10th Cir. 2004). Moreover, state court fact findings

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are presumed correct unless the petitioner rebuts them by clear and convincing

evidence. See § 2254(e)(1); Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir.

2000).

Decisions “contrary to” or representing an “unreasonable application of”

federal law are independent bases for habeas relief. Williams v. Taylor, 529 U.S.

362, 404-05 (2000) (O’Connor, J., concurring). A state court decision is contrary

to clearly established federal law under § 2254(d)(1) if the state court arrives at a

conclusion opposite to that reached by the Supreme Court on a question of law or

if the state court decides a case differently than the Supreme Court has on a set of

materially indistinguishable facts. See id. at 412-13. A state court decision is an

unreasonable application of federal law under § 2254(d)(2) if the state court

identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s

case. Id. at 413. “The reasonableness of the state court’s application of federal

law is to be evaluated by an objective standard. The Supreme Court has

cautioned that an unreasonable application of federal law is different from an

incorrect or erroneous application of federal law.” Mitchell v. Gibson, 262 F.3d

1036, 1045 (10th Cir. 2001) (internal quotation marks and citations omitted).

With these standards in mind, we turn to Mr. Allen’s legal argument.

Mr. Allen contends the trial court’s decision to increase his vehicular

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eluding sentence based on facts not found by the jury violated his Sixth

Amendment right to a trial by jury. In Apprendi, the Supreme Court invalidated a

New Jersey sentencing statute that permitted judges to assign an enhanced

sentence, greater than the otherwise applicable statutory maximum, based on a

post-conviction judicial finding that the defendant’s offense qualified as a “hate

crime.” 530 U.S. at 468-69. In order for a defendant’s sentence to comport with

the Sixth Amendment, “any fact [other than the fact of 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

(emphasis added). The Court explained that the label which the legislature

applies to the fact (such as “sentencing factor” or “element”) is irrelevant because

the inquiry properly focuses on effect rather than form. Id. at 494. Simply stated,

Apprendi forbids courts from imposing a sentence exceeding the statutory

maximum allowed for the defendant’s crime of conviction.

Four years later, the Court applied the rule of Apprendi to the State of

Washington’s determinate sentencing regime. Blakely v. Washington, 124 S. Ct.

2531 (2004). Blakely involved a defendant who pled guilty to second-degree

kidnapping, a state offense that carried a statutory maximum of ten years

imprisonment. Based solely on the facts admitted by Mr. Blakely, Washington’s

Sentencing Reform Act authorized a “standard” sentencing range of forty-nine to

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fifty-three months imprisonment. Id. at 2534-35. Pursuant to the act, however, a

court could exceed a fifty-three month sentence for a second-degree kidnapping

conviction if it found a “substantial and compelling reason.” Id. (quoting W ASH .

R EV . C ODE A NN . § 9.94A.310(3)(b)). Because the state court found that Mr.

Blakely had committed his crime with “deliberate cruelty,” it sentenced him to

ninety months, a term more than three years greater than the top end of the

standard range. Id. A majority of the Supreme Court held this practice

unconstitutional and in doing so instructed

that the “statutory maximum” for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant. In other words, the relevant
“statutory maximum” is not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may impose without any
additional findings. When a judge inflicts punishment that the jury’s verdict
alone does not allow, the jury has not found all the facts “which the law
makes essential to the punishment,” and the judge exceeds his proper
authority.

Id. at 2537 (citations omitted) (emphasis in the original). In the term following

Blakely, the Court extended Apprendi to the federal sentencing guidelines. See

United States v. Booker, 125 S. Ct. 738 (2005).

Under the Colorado sentencing scheme, a trial court must impose a

sentence within the applicable presumptive range for a felony offense unless it

finds that extraordinary mitigating or aggravating facts are present. See People v.

Leske, 957 P.2d 1030, 1042-43 (Colo. 1998). As explained by the Colorado

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Supreme Court:

Felony sentencing in [Colorado] is largely dictated by a complex scheme of
interlocking statutes, premised upon the segregation of felony offenses into
six levels or classes, each with its own presumptive sentencing range. See
§ 18-1.3-401, 6 C.R.S. (2002) (formerly § 18-1-105). Under various
circumstances, courts are permitted to sentence convicted felons in a
mitigated range, as little as half the minimum presumptive sentence, or in
an aggravated range, as great as twice the maximum presumptive sentence.
§ 18-1.3-401(6). Likewise, under various circumstances, courts may be
limited to specified portions of the statutorily prescribed range for a given
class of felony.

Martinez v. People, 69 P.3d 1029, 1031-32 (Colo. 2003). Mr. Allen’s case

involves a departure from the applicable presumptive range based on the presence

of extraordinary aggravating factors under § 18-1.3-401(6), which provides:

In imposing a sentence to incarceration, the court shall impose a definite
sentence which is within the presumptive ranges set forth in subsection (1)
of this section unless it concludes that extraordinary mitigating or
aggravating circumstances are present, are based on evidence in the record
of the sentencing hearing and the presentence report, and support a
different sentence which better serves the purposes of this code with
respect to sentencing, as set forth in section 18-1-102.5. If the court finds
such extraordinary mitigating or aggravating circumstances, it may impose
a sentence which is lesser or greater than the presumptive range; except
that in no case shall the term of sentence be greater than twice the
maximum nor less than one-half the minimum term authorized in the
presumptive range for the punishment of the offense.

C OLO . R EV . S TAT . § 18-1.3-401(6) (emphasis added). In other words, a

sentencing court is permitted to impose a sentence beyond the maximum

presumptive range for a given felony offense only if it finds some additional fact

warranting an enhancement. Id. § 18-1.3-401(1)(b)(I)(6) & (7). A jury’s verdict

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alone is insufficient to impose a sentence in the aggravated range. See id. In

fact, the trial court must make specific findings on the record detailing the

extraordinary circumstances that justify a variance from the presumptive range.

Id. § 18-1.3-401(7).

Mr. Allen’s vehicular eluding conviction constitutes a class 5 felony

offense carrying a presumptive sentence range of one to three years incarceration

in Colorado. C OLO . R EV . S TAT . §§ 18-1.3-401(1)(a)(V)(A) (enumerating penalty

authorized for conviction of class 5 felony); 18-9-116.5 (expressly providing that

vehicular eluding is a class 5 felony); see also Allen, 78 P.3d at 754. At Mr.

Allen’s sentencing, the state district court found the following facts which it

determined where extraordinarily aggravating:

(1) defendant drove at high speeds the wrong way on major streets and a
freeway during rush hour; (2) defendant drove at high speeds on a flat tire
and later on the metal rim of a wheel; (3) defendant caused numerous other
vehicles to drive off the side of the road and placed many people, including
a school bus driver, in fear; (4) the chase was lengthy, both in time and
distance, proceeded through a residential area, and placed a large number of
people in jeopardy; and (5) defendant’s criminal record, which included
several serious juvenile and adult violations, demonstrated that defendant
was a significant danger to others.

Allen, 78 P.3d at 755. On the basis of these findings, the court departed from the

three-year maximum presumptive range authorized by the jury’s verdict and

sentenced Mr. Allen to a six-year term of imprisonment.

In his initial appeal, Mr. Allen argued that his receipt of a sentence twice

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the length of that permitted by the jury’s verdict alone offended Apprendi. The

Colorado Court of Appeals disagreed, reasoning that “upon conviction by a jury,

and without the proof of more,” Mr. Allen was “exposed to a maximum sentence

of six years incarceration in the DOC, the maximum in the aggravated range.” Id.

(emphasis added). In the court’s opinion, the extraordinary aggravating facts

found by the judge at Mr. Allen’s sentencing were not, “as was the case in

Apprendi, specified facts or considerations that, if found, mandate an increased

penalty range or class of the offense.” Id. (citing Martinez, 32 P.3d at 520).

Thus, unlike Apprendi, which concerned the imposition of a sentence
beyond that provided for the offense by statute, based on a wholly separate
fact or element that was not charged and not submitted to the jury, here,
defendant received a sentence to which he was exposed by the original
charge. Apprendi does not require the invalidation of the sentencing
scheme adopted by the General Assembly, which creates a presumptive
sentence range and permits the trial court, in its discretion, to sentence in
aggravated or mitigated ranges based on unspecified extraordinary
aggravating or mitigating factors or circumstances particularized to the
defendant or the offense.

Id. Indeed, the appellate court’s determination that a defendant convicted of any

felony is exposed to a sentence up to the aggravated maximum compelled its

conclusion that the Colorado sentencing statutes challenged by Mr. Allen were

beyond the reach of Apprendi.

Mr. Allen maintains that even the most cursory examination of Apprendi’s

progeny makes clear the error of the state court of appeals’ conclusion that

aggravated maximums equate to statutory maximums. Because Blakely teaches

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that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected by the jury verdict or

admitted by the defendant,” Mr. Allen argues, the maximum sentence the trial

court could have imposed solely on the basis of the facts reflected by the jury

verdict in his case was the presumptive maximum of three years. See Blakely,

124 S. Ct. at 2537.

In an en banc opinion decided on May 23, 2005, nearly one year after

Blakely was decided, the Colorado Supreme Court essentially agreed with Mr.

Allen’s argument, holding that the “statutory maximum” for Apprendi/Blakely

purposes is the “presumptive range” established for the specific crime with which

the defendant was charged. Lopez v. People, 113 P.3d 713, 726 (2005). In so

holding, the Colorado Supreme Court rejected the prosecution’s invitation “to

construe Colorado’s general sentencing statute as comprising one simple range”

containing both mitigating and aggravating factors. Id. Thus, facts comprising

aggravating factors not falling into one of the so-called Blakely-exempt or

Blakely-compliant exceptions must be found by a jury before they may be used to

increase a defendant’s sentence.

But the current state of the law is irrelevant to the inquiry before us.

Because the question we must answer is whether the decision in Allen “was

contrary to, or involved an unreasonable application of, clearly established

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Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), we

are exclusively concerned with the state of the case law at the time Mr. Allen’s

conviction became final.

As explained earlier, a conviction becomes final when the availability of a

direct appeal has been exhausted, and the time for filing a certiorari petition with

the Supreme Court has elapsed or the Court has denied a timely certiorari petition.

See Caspari, 510 U.S. at 390. Mr. Allen had 90 days from April 15, 2002 – the

day the Colorado Supreme Court denied review – to petition the Supreme Court

for a writ of certiorari. That time elapsed and Mr. Allen’s conviction became

final within the meaning of AEDPA on July 15, 2002. Consequently, Mr. Allen’s

conviction was final long before the Court issued Blakely on June 24, 2004.

Furthermore, we have expressly held that Blakely did not announce a watershed

rule of criminal procedure which would apply retroactively to petitioners on

collateral review who raised Apprendi on direct appeal. See United States v.

Price, 400 F.3d 844, 849 (10th Cir. 2005) (“we hold that Blakely does not apply

retroactively to convictions that were already final at the time the Court decided

Blakely”). Therefore, all that is left to decide is whether the state court’s decision

in Allen is contrary to, or involved an unreasonable application of, Apprendi.

As noted previously, the Colorado Court of Appeals held in Allen that

under the state’s sentencing statutes, a defendant is exposed by the jury’s verdict

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to a sentence up to the aggravated maximum because the trial court has the

discretion to find that one or more facts about the offense or the offender are

extraordinarily aggravating and impose an enhanced sentence. Allen, 78 P.3d at

755. According to the court, because the aggravated maximum was the statutory

maximum for Sixth Amendment purposes under the Colorado scheme, Mr. Allen

simply received a sentence to which he was exposed by the original vehicular

eluding charge. Id. As a result, the court concluded that Apprendi did not affect

the operation of the statutes under which Mr. Allen was sentenced. Id.

It was not until the decision in Blakely that the Supreme Court clarified the

meaning of statutory maximum for Apprendi purposes. Blakely, 124 S. Ct. at

2537. Prior to the issuance of Blakely, the federal circuits unanimously believed

that the “statutory maximum” was the greatest sentence permitted by the statute of

conviction, irrespective of what fact-finding the court conducted to impose that

sentence:

Based upon Apprendi’s language addressing situations where a sentencing
court “increase[d] the penalty for a crime beyond the statutory maximum,” .
. . this court subsequently applied Apprendi only where a sentencing court
had imposed a sentence above the statutory maximum permitted by the
statute of conviction, regardless of what fact finding the court, rather than
the jury, conducted to impose a sentence within that statutory maximum.

Price, 400 F.3d at 847 (citing cases); see also Simpson v. United States, 376 F.3d

679, 681 (7th Cir. 2004) (stating that “before Blakely was decided, every federal

court of appeals had held that Apprendi did not apply to guideline calculations

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made within the statutory maximum,” citing cases). Indeed, “at the time [Mr.

Allen’s] convictions became final, after Apprendi but before Blakely, a court

would not have felt compelled to conclude Blakely’s rule was constitutionally

required.” Price, 400 F.3d at 848. In lockstep with federal courts, the Colorado

Court of Appeals ruled that Apprendi’s statutory maximum permitted sentencing

courts to make findings so long as the sentence ultimately imposed was within the

maximum range of the statute of conviction. Allen, 78 P.3d at 754-55. We,

therefore, cannot conclude that at the time the state court evaluated Mr. Allen’s

sentencing argument, its interpretation of Apprendi was unreasonable.

In sum, we AFFIRM the district court’s dismissal of Mr. Allen’s habeas

petition, albeit on grounds different from those relied on by that court.

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