PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3371
HARVEY A. REINHOLD,
Appellant
v.
GERALD ROZUM, SUPERINTENDENT, SCI
SOMERSET;
THE DISTRICT ATTORNEY OF THE COUNTY OF
LANCASTER, PA;
THE ATTORNEY GENERAL OF THE
COMMONWEALTH OF PENNSYLVANIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 5-07-cv-05154
District Judge: The Honorable John R. Padova
Argued March 9, 2010
Before: AMBRO, SMITH, and MICHEL,*
Circuit Judges
(Filed: April 14, 2010)
Diana Lynn Stavroulakis, Esq. (Argued)
262 Elm Court
Pittsburgh, PA 15237
Counsel for Appellant
Susan E. Moyer, Esq. (Argued)
Assistant District Attorney
Office of the District Attorney
Lancaster County Courthouse
50 North Duke Street
P.O. Box 83480
Lancaster, PA 17608-3480
Counsel for Appellees
OPINION
*
The Honorable Paul R. Michel, Chief Judge of the
United States Court of Appeals for the Federal Circuit,
sitting by designation.
2
SMITH, Circuit Judge.
This is a habeas action by a prisoner in state custody.
The only question for our review is whether he timely filed
his petition, a question which turns on whether the
Supreme Court’s decision in Cunningham v. California,
549 U.S. 270 (2007), applies retroactively to cases on
collateral review. We hold that Cunningham is not
retroactively applicable, and will affirm the judgment of
the District Court.
I.
In 1994, Petitioner Harvey Reinhold was convicted
in Pennsylvania state court of kidnapping and related
crimes, and was sentenced in the aggregate to 20 to 51
years in prison. The conviction and sentence were
affirmed on direct appeal, and successive state collateral
relief petitions were denied in the years following his
conviction. Reinhold filed this federal action under 28
U.S.C. § 2254 on November 11, 2007, more than ten years
after his conviction became final. Relying on
Cunningham, he contends that his constitutional right to a
trial by jury was violated when the sentencing judge relied
on facts not found by a jury beyond a reasonable doubt to
increase his sentence above Pennsylvania’s standard
3
sentencing range.
The District Court denied his habeas petition,
concluding that it was untimely. Specifically, the District
Court concluded that the Supreme Court’s decision in
Cunningham was not retroactively applicable to Reinhold’s
case. However, it granted a certificate of appealability for
us to consider this question.
The District Court had jurisdiction under 28 U.S.C.
§§ 2241 and 2254, and we have jurisdiction under §§ 1291
and 2253. Our review of an order denying a habeas corpus
petition as time-barred is plenary. McAleese v. Brennan,
483 F.3d 206, 212 (3d Cir. 2007) (citation omitted).
II.
The statute of limitations for habeas petitions by
prisoners in state custody is codified in 28 U.S.C. §
2244(d).1 Reinhold concedes, as he must, that he filed this
1
The statute provides, in relevant part, as follows:
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a
person in custody pursuant to the judgment of
4
petition more than one year from the date his conviction
became final. Id. § 2244(d)(1)(A).2 He did, however, file
the petition within one year of the Supreme Court’s
decision in Cunningham. The issue for our consideration
a State court. The limitation period shall run
from the latest of—
(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of the
time for seeking such review;[ or]
....
(C) the date on which the constitutional
right asserted was initially recognized
by the Supreme Court, if the right has
been newly recognized by the Supreme
Court and made retroactively
applicable to cases on collateral
review[.]
28 U.S.C. § 2244(d)(1)(A)–(C).
2
This is true even excluding the time his multiple
state collateral relief petitions were pending, as is required
by 28 U.S.C. § 2244(d)(2).
5
is whether Cunningham recognized a new constitutional
right, and, if so, whether it is retroactively applicable to
cases on collateral review. Id. § 2244(d)(1)(C).
A.
The Cunningham decision is one of a line of
Supreme Court cases on sentencing, of which the seminal
case is Apprendi v. New Jersey, 530 U.S. 466 (2000).
There, the defendant was convicted of a crime punishable
by five to ten years in prison; however, he was sentenced
to twelve years based on the fact, not found by a jury, that
he committed the crime with the purpose of intimidating
protected groups. Id. at 470–71. The Court concluded that
“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.” Id. at 490.
Two years later, the Supreme Court considered a
similar question in Ring v. Arizona, 536 U.S. 584 (2002).
In Ring, the jury was instructed on both premeditated
murder and felony murder for a death arising from an
armed robbery. The jury could not reach a verdict on
premeditated murder, but convicted Ring of felony murder,
for which the maximum penalty, absent aggravating
circumstances and the findings to support them, was life
6
imprisonment. Id. at 591–92. In summing up the trial
evidence, the Arizona Supreme Court declared: “For all we
know from the trial evidence, [Ring] did not participate in,
plan, or even expect the killing. This lack of evidence no
doubt explains why the jury found Defendant guilty of
felony, but not premeditated, murder.” State v. Ring, 25
P.3d 1139, 1152 (Ariz. 2001). Yet after the trial and before
Ring’s sentencing, another person involved in the robbery
pled guilty to a reduced charge and agreed to cooperate
with the State. Ring, 536 U.S. at 593. At the sentencing
hearing, held by law before the judge alone, the accomplice
testified that Ring was planning the robbery for weeks
before it occurred, shot the victim with a rifle equipped
with a homemade silencer, and directed the getaway. Id.
The sentencing judge found two statutorily enumerated
aggravating factors: “that Ring committed the offense in
expectation of receiving something of ‘pecuniary value,’”
and “that the offense was committed ‘in an especially
heinous, cruel or depraved manner.’” Id. at 594–95
(citations omitted). The sentencing judge concluded that
these two aggravating circumstances, based on testimony
not heard by the jury, outweighed any mitigating
circumstances, thereby warranting the imposition of the
death penalty. Id. at 595, 592–93. The Supreme Court
reached the same result as it did in Apprendi and held that
imposing the greater sentence only after judicial fact
7
finding was unconstitutional. Id. at 609.
Blakely v. Washington, 542 U.S. 296 (2004), took up
the question of what constitutes a “statutory maximum” for
Apprendi purposes. Blakely kidnapped his estranged wife
at knifepoint and drove her into Montana, threatening her
with a shotgun. Id. at 298. He pled guilty to reduced
charges and admitted in his plea only the elements of the
offenses. Id. at 298–99. The statutory maximum for these
crimes was ten years under Washington state law, but a
sentence above a “standard range” of 49 to 53 months was
prohibited absent the sentencing judge finding “substantial
and compelling reasons justifying an exceptional sentence”
up to ten years. Id. at 299 (quotation omitted). Blakely
was sentenced well above the standard range upon the
sentencing judge’s finding that he acted with “deliberate
cruelty.” Id. at 303. The Supreme Court held that the
“standard range” was the statutory maximum for Apprendi
purposes, and thus any facts found justifying a sentence
above the standard range must be found by a jury. Id. at
303–04.
Finally, United States v. Booker, 543 U.S. 220
(2005), applied the teachings of Apprendi, Ring, and
Blakely to the federal sentencing regime. The Court held
that the upper end of the then-mandatory federal sentencing
8
guidelines, even though it was below the maximum
sentence established by Congress, was the statutory
maximum for Apprendi purposes. Thus, judicial fact
finding used to justify a sentence above the guidelines
range violated the Sixth Amendment. Booker, 543 U.S. at
233–35 (opinion of Stevens, J.).3
Two years after Booker, the Supreme Court decided
Cunningham, 549 U.S. 270. That case dealt with
California’s penal code, which established a low-, mid-,
and upper-range sentence for the crimes codified therein.
These were not ranges within which the sentencing judge
could exercise his discretion; rather, they were fixed points
the sentencing judge was to choose from. Id. at 292. For
example, Cunningham’s crime of continuing sexual abuse
had a lower term of 6 years, a middle term of 12 years, and
an upper term of 16 years. Id. at 275. The penal code
obliged the sentencing judge to impose a middle-term
sentence unless the judge, not the jury, found mitigating or
aggravating factors. Id. The Supreme Court concluded
that California’s sentencing system was unconstitutional
3
Justice Breyer, speaking for a different majority,
devised the remedy of rendering the guidelines advisory to
alleviate this constitutional concern. See Booker, 543 U.S.
at 245 (opinion of Breyer, J.).
9
because the judge was required to find the facts necessary
to impose a higher sentence than was permissible based on
the jury’s verdict alone. Id. at 288–89, 292–93.
B.
The test for determining the retroactivity of a rule
announced by the Supreme Court is drawn from Teague v.
Lane, 489 U.S. 288, 310 (1989) (plurality opinion). It is a
three-part test: “First, the court must determine when the
defendant’s conviction became final. Second, it must
ascertain the legal landscape as it then existed, and ask
whether the Constitution, as interpreted by the precedent
then existing, compels the rule. That is, the court must
decide whether the rule is actually ‘new.’ Finally, if the
rule is new, the court must consider whether it falls within
either of the two exceptions to nonretroactivity.” Beard v.
Banks, 542 U.S. 406, 411 (2004) (citations and quotation
omitted).
First, Reinhold’s conviction became final in 1996.
See Kapral v. United States, 166 F.3d 565, 572 (3d Cir.
1999) (stating that a conviction becomes final for Teague
purposes “on the date the Supreme Court denies certiorari”
or “the date the time for filing a timely petition for a writ of
certiorari expires”) (citations omitted). Next, we ask
10
whether the landscape at that time compelled the rule in
Cunningham. Id. Apprendi, Blakely, and Booker were
decided several years after 1996. Cunningham is certainly
not “new” after those cases. Rather, Cunningham is a
direct application of the basic rule laid down in those
cases: using any fact not found by the jury to increase a
sentence beyond the maximum sentence otherwise allowed
violates the Sixth Amendment. In other words,
Cunningham was compelled by Apprendi and Blakely.
Butler v. Curry, 528 F.3d 624, 628 (9th Cir. 2008)
(concluding “that the result in Cunningham was clearly
dictated by the Supreme Court’s Sixth Amendment case
law, in particular Blakely v. Washington”). We have
already held that Apprendi itself does not apply
retroactively. United States v. Swinton, 333 F.3d 481 (3d
Cir. 2003). The same is true of Booker. Lloyd v. United
States, 407 F.3d 608 (3d Cir. 2005);4 see also Schriro v.
Summerlin, 542 U.S. 348 (2004) (rejecting retroactive
applicability of Ring). It would seem plausible to
conclude, were we to sidestep the Teague analysis, that if
Apprendi itself is not applied retroactively then, a fortiori,
4
Though we have not decided whether Blakely
applies retroactively, it stands to reason that it would not,
because “Blakely simply applied Apprendi to a different
statutory scheme[.]” Lloyd, 407 F.3d at 612.
11
Cunningham should also be denied retroactive application.
Reinhold’s counsel conceded at oral argument that if
Cunningham were merely an extension of Apprendi, then
it would not be retroactively applicable. We appreciate
counsel’s candor. We proceed, nonetheless, with the
Teague analysis and ask whether Cunningham is “new”
when applied to a 1996 conviction.
We have no difficulty concluding that Cunningham
is “new” for Reinhold’s purposes. After “ascertain[ing] the
legal landscape as it . . . existed” in 1996, which was pre-
Apprendi, we conclude that “the Constitution, as
interpreted by the precedent then existing,” would not have
compelled the rule in Cunningham. Banks, 542 U.S. at 411
(citation and quotation omitted). Apprendi itself
undoubtedly established a new constitutional right when it
was decided. See Swinton, 333 F.3d at 485. And,
therefore, that right’s further clarification in Cunningham
(via Blakely) would not make it less “new” to the pre-
Apprendi legal landscape. Thus, the rule announced in
Cunningham was not “dictated by then-existing precedent”
because the unlawfulness of relying on judge-found facts
to raise a sentence above the otherwise-maximum-allowed
sentence would not have been “apparent to all reasonable
jurists.” Lambrix v. Singletary, 520 U.S. 518, 527–28
(1997).
12
Finally, we ask whether the rule falls within one of
two exceptions to the general rule of nonretroactivity.
Banks, 542 U.S. at 411 (citation omitted). The parties
agree that the first exception is not applicable.5 The second
Teague exception is “for watershed rules of criminal
procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” Id. at 417 (quotation
omitted). “That a new procedural rule is ‘fundamental’ in
some abstract sense is not enough; the rule must be one
‘without which the likelihood of an accurate conviction is
seriously diminished.’” Summerlin, 542 U.S. at 352
(quotation omitted). The Supreme Court has repeatedly
described this exception in the narrowest of terms. Since
Teague was decided in 1989, the Supreme Court has
“rejected every claim that a new rule satisfied the
requirements for watershed status.” Whorton v. Bockting,
549 U.S. 406, 417 (2007). This is not surprising, because
5
The first exception is for “rules forbidding
punishment of certain primary conduct” or “rules
prohibiting a certain category of punishment for a class of
defendants because of their status or offense.” Banks, 542
U.S. at 416–17 (quotation omitted). This type of rule is
characterized as “substantive” rather than “procedural.”
See id. at 411 n.3, 416–17 & n.7; Whorton v. Bockting, 549
U.S. 406, 416 (2007).
13
a watershed rule is one that “alter[s] our understanding of
the bedrock procedural elements essential to the fairness of
a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242 (1990)
(quotation omitted). Thus, it is “unlikely that many such
components of basic due process have yet to emerge.”
Graham v. Collins, 506 U.S. 461, 478 (1993).
The Supreme Court has considered and rejected the
claim that a new rule prohibiting judicial fact finding at
sentencing is a watershed rule. Summerlin, 542 U.S. at
355–58. In that case, the Court concluded that Ring is not
retroactively applicable. Though many reasons can be
marshaled to defend the practice of having the jury act as
fact finder over a single judge, there is enough principled
disagreement on the issue that “we cannot confidently say
that judicial factfinding seriously diminishes accuracy.”
Id. at 356. Moreover, this Court has said, rejecting the
retroactive applicability of Apprendi, that its “application
affects only the enhancement of a defendant’s sentence
after he or she has already been convicted by proof beyond
a reasonable doubt.” United States v. Jenkins, 333 F.3d
151, 154 (3d Cir. 2003). Judicial fact finding at the
sentencing stage justifying a sentence beyond the otherwise
applicable maximum, unconstitutional though it may be,
“does not impair the jury’s ability to find the truth
regarding the defendant’s involvement in the underlying
14
offense.” Id. (citation omitted). Thus, Apprendi was not a
watershed rule, one “implicating the fundamental fairness
and accuracy of the criminal proceeding.” Banks, 542 U.S.
at 417 (quotation omitted).
The only case held up by the Supreme Court as the
exemplar of a watershed rule is Gideon v. Wainwright, 372
U.S. 335 (1963). See, e.g., Banks, 542 U.S. at 417;
Whorton, 549 U.S. 419. Gideon, of course, held that an
indigent defendant has the constitutional right to appointed
counsel in a felony criminal case. The Gideon Court
recognized that without a defense attorney present at a
criminal trial, “the risk of an unreliable verdict is
intolerably high.” Whorton, 549 U.S. at 419 (citation
omitted). The “noble ideal” of ensuring “fair trials before
impartial tribunals in which every defendant stands equal
before the law,” Gideon said, “cannot be realized if the
poor man charged with a crime has to face his accusers
without a lawyer to assist him.” Gideon, 372 U.S. at 344.
Cunningham is not Gideon. Apprendi,
Cunningham’s lineal predecessor, did not announce a
watershed rule when it invalidated judicial fact finding
justifying an elevated sentence. Ring likewise did not
announce a watershed rule when it invalidated judicial fact
finding used to increase a sentence from life to death.
15
These principles are constitutionally indistinguishable from
Cunningham’s requirement that a jury and not a judge find
facts justifying the raising of a sentence from the middle
term to the upper term in California’s scheme. We hold
that the rule announced in Cunningham, like Apprendi,
“does not satisfy Teague’s second exception to non-
retroactivity.” Swinton, 333 F.3d at 491. Cunningham
“has none of the primacy and centrality of the rule adopted
in Gideon,” Saffle v. Parks, 494 U.S. 484, 495 (1990), and
thus is not applicable to Reinhold’s sentence.
III.
Reinhold filed his habeas petition within one year of
the Supreme Court’s decision in Cunningham. That case
announced a rule that was not compelled by the
Constitution as interpreted by the precedent existing at the
time his conviction became final; it is “new” for Reinhold’s
purposes. However, Cunningham did not announce a
watershed rule. Therefore, it is not retroactively applicable
to convictions, like Reinhold’s, that became final before it
was decided. We will affirm the judgment of the District
Court.
16