United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided January 10, 2006
No. 05-3106
IN RE: REGULO ANTONIO ZAMBRANO
On Application for Leave to File Second or Successive
Motion Under 28 U.S.C. § 2255
(93cr00418-03)
Regulo Antonio Zambrano, pro se, filed the application for
leave to file a second or successive motion.
Roy W. McCleese III., Assistant U.S. Attorney, filed the
opposition to the application. On the papers were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher, Assistant U.S.
Attorney at the time the application was filed.
Before: RANDOLPH, ROGERS, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Regulo Zambrano applies for
leave to file a second motion to vacate his criminal sentence
pursuant to 28 U.S.C. § 2255, contending that the sentence is
unconstitutional under United States v. Booker, 125 S. Ct. 738
(2005). We cannot authorize the filing, however, because the
Supreme Court has not made Booker retroactive to cases on
collateral review. We therefore deny Zambrano’s application.
2
I
In April 1995, a jury convicted Zambrano on charges
relating to a conspiracy to distribute and possess with intent to
distribute five or more kilograms of cocaine, in violation of 21
U.S.C. § 841(a)(1) & (b)(1)(A)(ii) and 21 U.S.C. § 853. He was
sentenced to 188 months’ imprisonment under the United States
Sentencing Guidelines. In 1997, we affirmed the convictions
and sentence. United States v. Gaviria, 116 F.3d 1498 (D.C.
Cir. 1997).
After his convictions became final, Zambrano mounted a
collateral attack pursuant to 28 U.S.C. § 2255. He contended
that he had received ineffective assistance of counsel, and he
further argued that the district court’s enhancement of his
sentence -- based on findings not made by the jury -- violated
the rule of Apprendi v. New Jersey, which held that “[o]ther than
the fact of a prior conviction, 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.”
530 U.S. 466, 490 (2000). The district court denied relief.
Almost six months later, Zambrano moved to vacate the district
court’s order, stating that he had not received notice of the
court’s denial of his § 2255 motion until after the time for appeal
had expired. The district court denied the motion, and this court
denied a certificate of appealability. See United States v.
Zambrano, No. 04-3056, 2005 WL 361496 (D.C. Cir. Feb. 15,
2005).
Zambrano now seeks leave to file a second § 2255 motion.
In that motion, Zambrano contends that the district court’s
enhancement of his sentence under the Sentencing Guidelines
was unconstitutional in light of United States v. Booker, which
held that the “Sixth Amendment is violated by the imposition of
an enhanced sentence under the United States Sentencing
3
Guidelines based on the sentencing judge’s determination of a
fact (other than a prior conviction) that was not found by the
jury or admitted by the defendant.” 125 S. Ct. at 756 (internal
quotation marks omitted).
II
Under 28 U.S.C. § 2255, a prisoner in custody under a
federal sentence, “claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, . . . may move the
court which imposed the sentence to vacate, set aside or correct
the sentence.” A second or successive motion under § 2255,
however, “must be certified as provided in section 2244 by a
panel of the appropriate court of appeals” to contain:
(1) newly discovered evidence . . . ; 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 (as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 100 Stat. 1214). Section 2244 provides (inter alia) that
“[t]he court of appeals may authorize the filing of a second or
successive application only if it determines that the application
makes a prima facie showing that the application satisfies” the
above requirement. 28 U.S.C. § 2244(b)(3)(C); see In re
Olopade, 403 F.3d 159, 162 (3d Cir. 2005).
As Zambrano does not rely on newly discovered evidence,
the only question before us is whether Booker is a new rule of
constitutional law “made retroactive to cases on collateral
review by the Supreme Court.” 28 U.S.C. § 2255. That
4
question is governed by Tyler v. Cain, 533 U.S. 656 (2001),
which held: “[T]he Supreme Court is the only entity that can
‘make’ a new rule retroactive. The new rule becomes
retroactive, not by the decisions of the lower court or by the
combined action of the Supreme Court and the lower courts, but
simply by the action of the Supreme Court.” Id. at 663. In
addition, the Tyler Court concluded “that ‘made’ means ‘held’
and, thus, the requirement is satisfied only if this Court has held
that the new rule is retroactively applicable to cases on collateral
review.” Id. at 662 (emphasis added); see id. at 663 (“[A] new
rule is not ‘made retroactive to cases on collateral review’ unless
the Supreme Court holds it to be retroactive.”).1
The Supreme Court has never expressly held Booker
retroactive. Booker itself did not state that its rule was
retroactive to cases on collateral review. See 125 S. Ct. at 769
(stating only that the holding was applicable “to all cases on
direct review”). Nor has the Court held Booker retroactive in
any subsequent case.
In Tyler, the Court acknowledged that, “with the right
combination of holdings,” it could “make a rule retroactive over
the course of two cases.” 533 U.S. at 666. But “[m]ultiple cases
can render a new rule retroactive only if the holdings in those
1
In Tyler, the Court addressed 28 U.S.C. § 2244(b)(2)(A), rather
than the above-quoted language from 28 U.S.C. § 2255, because the
petitioner was a state prisoner seeking collateral relief under 28 U.S.C.
§ 2254. See Tyler, 533 U.S. at 659. The relevant portion of §
2244(b)(2)(A) is identical to that portion of § 2255 implicated in this
case, and we have previously applied Tyler to a federal prisoner’s
application for permission to file a successive § 2255 motion. See In
re Smith, 285 F.3d 6, 8 (D.C. Cir. 2002); see also In re Elwood, 408
F.3d 211, 213 (5th Cir. 2005) (“The standards for a successive § 2254
petition and a successive § 2255 motion based on a new constitutional
rule are identical.”).
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cases necessarily dictate retroactivity of the new rule.” Id.
(emphasis added); see id. at 669 (O’Connor, J., concurring)
(stating that “[t]he Court . . . can be said to have ‘made’ a rule
retroactive . . . only where the Court’s holdings logically permit
no other conclusion”). That might be so, for example, if the
court were to hold in one case that a rule is of a particular type,
and in another “that all [such] rules apply retroactively.” 533
U.S. at 666; see id. at 668-69 (O’Connor, J., concurring). The
“Supreme Court does not ‘ma[k]e’ a rule retroactive,” however,
“when it merely establishes principles of retroactivity and leaves
the application of those principles to lower courts.” 533 U.S. at
663.
The possibility of a Tyler two-step does not assist
Zambrano. Booker was an application of the Apprendi rule to
the United States Sentencing Guidelines, and of the Court’s
previous application of Apprendi to find unconstitutional a
state’s determinate sentencing regime in Blakely v. Washington,
542 U.S. 296 (2004). See Booker, 125 S. Ct. at 749. But the
Supreme Court has never expressly held either of those cases
retroactive on collateral review, and we have concluded that the
Court has not “made” either case retroactive within the meaning
of § 2255. See In re Hinton, 125 Fed. Appx. 317 (D.C. Cir.
2005); In re Smith, 285 F.3d 6, 11 (D.C. Cir. 2002).
Indeed, the Supreme Court has made clear that not every
application of Apprendi has retroactive effect. In Ring v.
Arizona, 536 U.S. 584 (2002), the Court held that, “because
Arizona law authorized the death penalty only if an aggravating
factor was present, Apprendi required the existence of such a
factor to be proved to a jury rather than to a judge.” Schriro v.
Summerlin, 542 U.S. 348, 351 (2004) (describing the holding of
Ring). Nonetheless, in Summerlin, the Court held that Ring
“does not apply retroactively to cases already final on direct
review.” 542 U.S. at 358.
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Zambrano argues that Booker is ultimately an extension of
In re Winship, which held that the Constitution “protects the
accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged,” 397 U.S. 358, 365 (1970), and he
notes that the Supreme Court has held that Winship is to be
given “complete retroactive effect,” Ivan V. v. City of New
York, 407 U.S. 203, 205 (1972) (internal quotation marks
omitted).2 But there are too many logical steps between Winship
and Booker to conclude that it “necessarily” follows that if
Winship is retroactive, Booker must be as well. Tyler, 533 U.S.
at 666. Although the Court did rely on Winship to decide
Booker, see 125 S. Ct. at 748, the road that begins with Winship
and ends with Booker runs through Apprendi and Blakely. Both
of those cases were also dependent upon Winship, see id. at 748-
49 (stating that Winship “provided the basis” for Apprendi and
Blakely), but as noted above, neither has been made retroactive
for purposes of § 2255.
Moreover, the Supreme Court has made clear that not even
a more direct application of Winship is necessarily retroactive.
In Tyler itself, the Court concluded that it had not made Cage v.
Louisiana, 498 U.S. 39 (1990), retroactive. Cage held that “a
jury instruction is unconstitutional if there is a reasonable
2
Ivan V., itself, was a case on direct review. There, the Supreme
Court reversed the New York Court of Appeals’ decision that Winship
was not to be applied “retroactively” to a direct appeal in which the
initial adjudication had taken place before Winship was decided. 407
U.S. 203, 203-04 (1972). In subsequent cases, the Court suggested
that Winship also applied retroactively to cases on collateral review.
See Murray v. Carrier, 477 U.S. 478 (1986); United States v. Johnson,
457 U.S. 537, 562-63 n.21 (1982).
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likelihood that the jury understood the instruction to allow
conviction without proof beyond a reasonable doubt.” Tyler,
533 U.S. at 658 (describing Cage). Notwithstanding that Cage
was based on the finding “that the instruction at issue was
contrary to the ‘beyond a reasonable doubt’ requirement
articulated in Winship,” Cage, 498 U.S. at 41, Tyler determined
that the Court had not made the Cage rule retroactive to cases on
collateral review. Tyler, 533 U.S. at 664.
For these reasons, we conclude that Booker is not a new rule
of constitutional law “made retroactive to cases on collateral
review by the Supreme Court” within the meaning of 28 U.S.C.
§ 2255. In so holding, we join all of the circuits that have
considered the question. See Green v. United States, 397 F.3d
101, 103 (2d Cir. 2005); In re Olopade, 403 F.3d 159, 164 (3d
Cir. 2005); United States v. Fowler, 133 Fed. Appx. 922, 922-23
(4th Cir. 2005); In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005);
United States v. Shipp, 137 Fed. Appx. 904, 904 (7th Cir. 2005);
Bey v. United States, 399 F.3d 1266, 1269 (10th Cir. 2005); In
re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005). The
application for leave to file a second § 2255 motion is
denied.