Sustache-Rivera v. United States

United States Court of Appeals
For the First Circuit

No. 99-2128

DAVID SUSTACHE-RIVERA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Before

Boudin, Circuit Judge,
Bownes, Senior Circuit Judge, and
Lynch, Circuit Judge.

Christopher R. Goddu, with whom Willcox, Pirozzolo & McCarthy was
on brief, for petitioner.
Michelle Morales, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, were on brief, for respondent.

July 25, 2000
 LYNCH, Circuit Judge. In March 1993, a jury convicted

David Sustache-Rivera (Sustache) of three separate carjackings

in violation of 18 U.S.C. § 2119. If a carjacking results in

"serious bodily injury," then the statute allows for a greater

length of imprisonment. The judge found that one of the

carjackings had resulted in serious bodily injury and so imposed

a greater sentence. All told, Sustache was sentenced to thirty-

seven years in prison for the crimes.1 He was twenty years old

at the time. His convictions were affirmed on appeal. See

United States v. Sustache-Rivera, 39 F.3d 1166 (1st Cir. 1994)

(unpublished). Sustache's first habeas petition under 28 U.S.C.

§ 2255 was dismissed by the district court.2 He now requests a

certificate of appealability from this court so that he may file

1 Sustache was sentenced to two 12-year terms of imprisonment
for the other two carjackings, to be served concurrently with each
other but consecutively to the 25-year term. What is at stake in this
case are the additional years of Sustache's federal sentence for the
third carjacking.
2 Section 2255 uses the term "motion" rather than the term
"petition." We use the term "petition" throughout this opinion,
though, as it is more commonly used to describe the process by which a
prisoner seeks post-conviction relief. See Pratt v. United States, 129
F.3d 54, 56 n.1 (1st Cir. 1997).

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a second § 2255 petition. We decline to issue the certificate

and dismiss the case.

I.

Sustache was charged with three separate carjackings

under 18 U.S.C. § 2119. One of the counts specifically charged

Sustache under 18 U.S.C. § 2119(2) -- the subsection that allows

a longer sentence if the carjacking results in serious bodily

injury -- and detailed the injuries one of the victims, Dr. José

Aurelio Dávila-Sánchez, received as a result of being shot three

times. At trial, Dávila-Sánchez's brother, José Miguel

Betancourt-Sánchez, who was with Dávila-Sánchez during the

carjacking, testified regarding the injuries they received.

According to his testimony, both men had been shot at many

times. After an initial wave of gunfire, Dávila-Sánchez was

left bleeding and asking to be taken to the hospital. Then came

a second wave of gunfire, during which Betancourt-Sánchez

attempted to protect his brother from further injury; but both

were shot, one bullet penetrating Betancourt-Sánchez and then

entering his brother's stomach. The Pre-Sentence Report

revealed that, as a result of his wounds, Dávila-Sánchez's leg

had to be amputated and he lost the use of his left hand.

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 The question of whether serious bodily injury occurred

in the carjacking was not submitted to the jury, but was decided

by the judge at sentencing. At the time of Sustache's trial and

direct appeal, the law of this circuit was silent as to whether

the question of serious bodily injury was an element of the

crime to be determined by a jury or was merely a sentencing

enhancement to be determined by the judge. We later held that

the occurrence of serious bodily injury was merely a sentencing

enhancement. See United States v. Rivera-Gomez, 67 F.3d 993,

1000 (1st Cir. 1995). Other circuits that had decided the

question shared this view. See, e.g., United States v. Oliver,

60 F.3d 547, 552 (9th Cir. 1995); United States v. Williams, 51

F.3d 1004, 1009 (11th Cir. 1995). The Supreme Court, however,

held in Jones v. United States, 526 U.S. 227, 251-52 (1999),

that the serious bodily injury requirement in 18 U.S.C. §

2119(2) is an element of a carjacking offense and so must be

submitted to the jury.

Sustache, naturally, now wants to raise the claim that

his sentence should be vacated because the judge, not the jury,

determined the serious bodily injury element. The claim

concerns not only who should have decided the matter, but also

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what the government's burden of proof should have been. An

element of a crime must be proven by the government beyond a

reasonable doubt. See id. at 232. By contrast, sentencing

enhancements are decided upon a preponderance of the evidence.

See United States v. Lombard, 72 F.3d 170, 176 (1st Cir. 1995).

The question here is whether Sustache has a vehicle to

raise the claim pursuant to 28 U.S.C. § 2255, either as a first

petition, or by permission of this court as a second or

successive petition or a petition falling within the section's

savings clause.3 Congress imposed a number of bars to federal

3 The procedural posture in which the question comes to us is
dictated by AEDPA, the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. Law No. 104-132, 110 Stat. 1214. This court
initially denied Sustache's application for leave to file a successive
§ 2255 petition, but required briefing on two issues:

1. Under what conditions, if any, does an intervening
Supreme Court decision, which changes the substantive law
under which a petitioner has been convicted, render the
remedy afforded by 28 U.S.C. § 2255 "inadequate or
ineffective" for a successive habeas petitioner? If such
conditions exist, what alternate remedies are available?
See Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999).

2. Has the Supreme Court decision in Jones v. United
States, 119 S. Ct. 1215 (1999), rendered the remedy afforded
petitioner Sustache Rivera "inadequate or ineffective," and,
if so, what alternate remedies are available to him?

In addition, we gave the parties the opportunity, which each took, to
brief this question:

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prisoners' efforts to obtain post-conviction relief when it

enacted AEDPA, the Antiterrorism and Effective Death Penalty Act

of 1996, Pub. Law No. 104-132, 110 Stat. 1214, which governs

this petition. Counting literally, this is Sustache's second

§ 2255 petition. Sustache filed a pro se petition under § 2255

in 1997 that raised a claim of ineffective assistance of counsel

but did not raise the Jones claim.4 That petition was dismissed

on its merits by the district court. Sustache's current attempt

to correct the error that occurred at his trial is limited by

AEDPA. AEDPA § 105 amended 28 U.S.C. § 2255 so that "second or

successive" § 2255 petitions will not be heard unless the court

of appeals grants leave to file the petition. See 28 U.S.C. §§

2255, 2244(b)(3). The court may not grant such leave unless the

petition is based on:

a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable.5

3. Under the circumstances, is this a second or successive
petition?
4 At the time of Sustache's 1997 pro se § 2255 petition, our
decision in Rivera-Gomez foreclosed any Jones argument.

5 The court may also grant leave to file a second or successive
petition based upon "newly discovered evidence," 28 U.S.C. § 2255, but

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28 U.S.C. § 2255.

Sustache's efforts to apply the new Jones rule are thus

stymied unless: (1) this petition is considered to be a first

petition; or (2) he meets the gatekeeping requirements for

second or successive petitions; or (3) his claim fits within §

2255's savings clause for cases in which § 2255 provides an

"inadequate or ineffective" remedy.6

II.

Sustache asserts that this petition should be

considered a first petition because the new Jones rule was not

available to him earlier. Treating this petition as a first

petition has both substantive and procedural advantages for him.

Substantively, if this were a first petition, he could raise a

claim that his sentence "was imposed in violation of the laws of

the United States." 28 U.S.C. § 2255. In other words, he would

not be restricted to constitutional claims. Procedurally, he

would not need permission from this court to file such a claim.

Sustache makes no claim that his petition is so based.
6 28 U.S.C. § 2255 reads, in pertinent part: "An application
for a writ of habeas corpus in behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this section, shall not be
entertained . . . unless it . . . appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention."

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 We also consider whether, assuming Sustache's petition

should be treated as a second or successive § 2255 petition, his

petition meets the requirements for such petitions in light of

the Supreme Court's recent decision in Apprendi v. New Jersey,

No. 99-478, 2000 WL 807189 (U.S. June 26, 2000), issued after

oral argument in this case.

Sustache's final argument is that his claim fits within

the savings clause of § 2255. If a petitioner's § 2255 remedy

is inadequate or ineffective, then he may apply for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241, the general habeas

corpus statute. See 28 U.S.C. § 2255. Recognizing the danger

that the exception could easily swallow the rule and frustrate

Congress' purpose in enacting AEDPA, the courts of appeals have

read this exception narrowly. Nonetheless, Sustache says that

fairness demands he at least be given the opportunity to present

his claims and that, therefore, his claim should be found to fit

within the savings clause. Otherwise, he says, § 2255 leaves

him trapped in a procedural morass: even though Jones now makes

clear that the trial court erred (resulting, he says, in a

longer prison sentence), he cannot correct this error merely

because he failed to raise it in his first § 2255 petition, at

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a time when he had no reason to anticipate Jones.

Because this area is a procedural maze for parties and

courts, an outline of our holdings in this case may be helpful:

1. We are not inclined to view Sustache's petition as

a first petition. Even if it were, it would fail for the

reasons stated below.

2. Sustache's petition does not meet the gatekeeping

requirements of § 2255 for second or successive petitions; this

is so even if Jones does represent a new rule of constitutional

law, because the Supreme Court has not made Jones retroactive to

cases on collateral review.

3. Whether Sustache's petition falls within § 2255's

savings clause is a matter we need not resolve.

4. Because Sustache did not present the Jones claim

before, he must show cause and prejudice to present it now, and

Sustache has no plausible claim of prejudice.

A. Is This a First or a "Second or Successive" Petition?

Sustache concedes that his petition is literally

second, but says that an exception should be carved out for

claims that could not reasonably have been presented earlier.

Not every literally second or successive § 2255

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petition is second or successive for purposes of AEDPA. See

Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998). The

Supreme Court and this court have outlined several situations in

which a later petition is not "second or successive:" (1) where

the later petition raises the same grounds as a previous

petition that had been dismissed as premature, see id.; (2)

where a state prisoner's later petition raises the same grounds

as a previous petition that had been dismissed for failure to

exhaust state remedies, see Slack v. McDaniel, 120 S. Ct. 1595,

1604-05 (2000); Dickinson v. Maine, 101 F.3d 791 (1st Cir.

1996); (3) where the earlier petition terminated without a

judgment on the merits, see Pratt v. United States, 129 F.3d 54,

60 (1st Cir. 1997); or (4) where the later petition attacks a

different criminal judgment, such as where a prisoner who has

successfully brought a first habeas claim is retried,

reconvicted, and resentenced and then attacks the new judgment,

see Pratt, 129 F.3d at 62; see also Shepeck v. United States,

150 F.3d 800, 801 (7th Cir. 1998) (later petition presenting

issues that were unripe until re-sentencing that resulted from

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first petition not second or successive).7 The first three

exceptions involve nominally successive petitions that are

really extensions of original petitions that, for technical or

prematurity reasons, were not addressed on the merits. The

fourth exception is for a petition attacking an entirely

different criminal judgment than was attacked in the first

petition.

Sustache contends that another exception should be

carved out where the prisoner could not reasonably have

presented his claim in an earlier petition. More precisely,

Sustache argues that a § 2255 petition should not be treated as

second or successive where a facially meritorious basis for

relief becomes available for the first time -- due to a change

in law -- after a previous § 2255 petition has already been

filed and litigated. Some support for this position might be

thought to come from this court's language in Pratt, where we

noted, "As a general rule, a prisoner who had both the incentive

7 Other circuits have created at least two other exceptions:
(1) where the earlier petition was rejected for failure to pay a filing
fee or for errors of form; and (2) where the earlier petition was
mislabeled as a § 2255 but was really a § 2241 petition challenging the
execution, but not the validity, of the sentence. See United States v.
Barrett, 178 F.3d 34, 43 (1st Cir. 1999) (collecting cases).

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and the ability to raise a particular claim in his first

petition for post-conviction relief, but declined to assert it,

cannot raise it the second time around." Pratt, 129 F.3d at 62.

Yet, from this language it does not follow that a prisoner who

lacked the incentive or ability to raise a particular claim in

his first petition, and so declined to assert it, necessarily

may raise it the second time around -- the gist of Sustache's

position.8

A similar argument for Sustache's position might be

constructed from our decision in United States v. Barrett, 178

F.3d 34 (1st Cir. 1999), where we held that

as a general matter, if a petition falls under the
modified res judicata rule known as the abuse of the
writ doctrine -- because, for example, it raises a
claim that could have been properly raised and decided
in a previous § 2255 petition -- it also falls within
the definition of "second or successive."

8 Moreover, the language in Pratt occurs in the context
of a petition brought after the prisoner had successfully
brought an initial petition and was retried, reconvicted, and
resentenced. See Pratt, 129 F.3d at 62. The court in Pratt
went on to state that while the prisoner could collaterally
attack the new judgment, he "customarily cannot re-petition
after resentencing based on alleged errors affecting the
underlying conviction." Id.

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Id. at 45. Yet again, from this language it does not follow

that a petition is not second or successive simply because it

does not violate the old abuse of the writ doctrine. Indeed

such a rule would run counter to congressional intent. If a

later petition's status pivoted solely on the old abuse of the

writ doctrine, then AEDPA's restrictions would lower, rather

than raise, the successive petition threshold. "We are

cognizant that if we were to perform a 'cause and

prejudice'/'actual innocence' analysis of every second or

successive petition under § 2255, we would be undermining the

clear intent of Congress that stricter standards apply under

AEDPA and that the pre-clearance process be streamlined."

Barrett, 178 F.3d at 48 n.8. Moreover, "[t]he [AEDPA]

requirements themselves take for granted that some newly

available claims will be found in 'second or successive'

petitions (for instance, 'a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.')" Id. at 45 n.5 (citations

omitted). Further, the courts of appeals have routinely treated

as second or successive claims alleged to be "new" due to the

Supreme Court's changing the law. See, e.g., In re Davenport,

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147 F.3d 605, 610 (7th Cir. 1998) (regarding numerically

successive § 2255 petition based upon new Supreme Court decision

that changed the law as "second or successive"); Triestman v.

United States, 124 F.3d 361, 367-70 (2nd Cir. 1997) (same); In

re Dorsainvil, 119 F.3d 245, 247-48 (3rd Cir. 1997) (same).

Sustache's argument may amount to nothing more than an

assertion that this petition should be treated as a first

petition because he could meet the "cause" requirement, both

before and after AEDPA, to excuse a procedural default. See

Bousley, 523 U.S. 614, 622 (1998). It is true that the courts'

have refused to read the term "second or successive" literally.

Additionally, Sustache's position avoids some sense of

unfairness, and the Supreme Court has not yet ruled on it. In

any event, although we think the argument questionable, we do

not decide the issue, but only note that the premise of

Sustache's argument -- that he lacked reasonable opportunity to

argue that serious bodily injury was an element of the crime --

is itself a difficult question.9 More significantly, as we

9 This "cause" question is complicated, and we need not decide
it. It is primarily complicated by Bousley's stringent requirements.
Bousley had filed a first § 2255 petition seeking to benefit from
Bailey v. United States, 516 U.S. 137 (1995), a decision that narrowed
the definition of "use" in 18 U.S.C. § 924(c)(1)(A), the statute

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explain below, whether Sustache's petition is treated as a first

petition or as a second or successive petition makes no

difference for other reasons.

B. Does The Petition Satisfy The Requirements for Second or
Successive Petitions?

The Jones opinion explained that it rested on

statutory, not constitutional, interpretation. See Jones, 526

U.S. at 251 n.11. Accordingly, Sustache's Jones argument would

not appear to rest upon "a new rule of constitutional law," and

so it would not appear to fit within § 2255's exception for

second petitions.

However, the question of whether Sustache's claim fits

within § 2255's exception changes complexion with the Supreme

criminalizing use of a firearm in the commission of a federal crime.
See Bousley, 523 U.S. at 616-18. The Supreme Court held that Bousley
could not show cause for having failed to raise the Bailey claim on
direct appeal (before the Supreme Court had decided Bailey) merely
because existing circuit precedent at the time would have made it
futile to do so. See Bousley, 523 U.S. at 623 (stating that "futility
cannot constitute cause if it means simply that a claim was
unacceptable to that particular court at that particular time")
(internal quotation marks and citation omitted). Sustache was not
foreclosed by circuit precedent from making the Jones argument at trial
or on direct appeal, although he was foreclosed at the time of his
first § 2255 petition. It may be that Bousley is distinguishable,
though, as Sustache's case presents the additional issue of lack of
incentive. Unlike petitioners raising Bailey claims, it is far from
clear that Sustache had an incentive to argue at trial or on direct
appeal that the evidence of serious bodily injury should have been
presented to (as opposed to withheld from) the jury.

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Court's recent decision in Apprendi. Apprendi, involving a

direct appeal from a state conviction, held that the

Constitution requires that any fact that increases the penalty

for a crime beyond the prescribed statutory maximum, other than

the fact of prior conviction, must be submitted to the jury and

proved beyond a reasonable doubt. See Apprendi, 2000 WL 807189

at *13. The Court said that its constitutional holding was

foreshadowed by Jones, which construed a federal statute. See

Apprendi, 2000 WL 807189 at *7. Significantly for our purposes,

the Court also said, referring to the Jones decision:

We there noted that under the Due Process Clause of
the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment, any fact (other
than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable
doubt. The Fourteenth Amendment commands the same
answer in this case involving a state statute.

Apprendi, 2000 WL 807189 at *7 (internal quotation marks and

citation omitted). 10 Thus, Apprendi now gives Sustache an

argument that Jones, while decided as a matter of statutory

10 As is evident from Justice O'Connor's dissent, the meaning
and scope of the Jones/Apprendi rule is unclear. See Apprendi, 2000 WL
807189 at *31 (O'Connor, J, dissenting). Because the Apprendi majority
referred to the Jones rule as an example of its new constitutional
rule, see Apprendi, 2000 WL 807189 at *13, we do the same.

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interpretation, is presently viewed by a majority of the Supreme

Court as a constitutionally compelled rule. The next inquiry

then, is (1) whether Sustache's petition is "based on a new rule

of constitutional law" that (2) has been "made retroactive to

cases on collateral review by the Supreme Court" and (3) was

"previously unavailable." 28 U.S.C. § 2255; see Pratt 129 F.3d

at 57.

In judging whether to permit the filing of a second

petition, the court of appeals, as gatekeeper, does not

definitively decide these issues. Rather, under Slack, 120 S.

Ct. at 1603-04, the precise question is whether "jurists of

reason" would find each of these points "debatable." If so,

then this court should grant permission to file a second or

successive petition. Jurists of reason could find that the

Jones claim is, post-Apprendi, "based on a new rule of

constitutional law." However, it is clear that the Supreme

Court has not made the rule retroactive to cases on collateral

review. See In re Vial, 115 F.3d 1192, 1197 (4th Cir. 1997)

("[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

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collateral availability of the rule in question, either by

explicitly so stating or by applying the rule in a collateral

proceeding.") (quoting 28 U.S.C. § 2255). And so, Sustache's

claim does not meet the requirements for a second or successive

petition.11

C. Savings Clause Under § 2255

The question remains whether § 2255's savings clause

applies to allow Sustache to pursue a remedy under traditional

habeas corpus pursuant to 28 U.S.C. § 2241. The savings clause

applies if "the remedy [under § 2255] is inadequate or

ineffective to test the legality of [a petitioner's] detention."

28 U.S.C. § 2255. Only then may a § 2241 petition be filed that

challenges the legality of a conviction or a sentence. See 28

U.S.C. §§ 2255, 2244(a). Whether the savings clause applies

here raises a series of issues.

One procedural issue is whether a petitioner can avoid

the gatekeeping function of the courts of appeals by simply

11 The Supreme Court may yet hold that the Jones/Apprendi rule
is to be retroactively applied to cases on collateral review. (This
likely depends upon whether the Court considers the Jones/Apprendi rule
procedural or substantive.) Until that time, any second or successive
petition seeking retroactive application of Jones must be considered
premature.

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refiling a § 2241 petition in the custodial district court.

See, e.g., Hernandez v. Campbell, 204 F.3d 861, 866 (9th Cir.

2000) (remanding § 2241 petition where district court had

dismissed petition without determining whether the petition fell

under the savings clause); Hooker v. Sivley, 187 F.3d 680 (5th

Cir. 1999) (noting that the determination whether a petitioner

"may proceed under § 2241 . . . can only be made in the district

where he is incarcerated"). Congress did not speak to this

issue, and there is little caselaw on point.12 We avoid this

12 The caselaw has come from the courts of appeals in the
context of determining when the savings clause should apply,
mainly in the wake of Bailey. Troubled by the specter that the
restrictions on second or successive petitions would prevent prisoners
whose conduct had been rendered non-criminal as a result of Bailey's
narrowing the definition of "use" of a firearm in 18 U.S.C.
§ 924(c)(1), see Bailey, 516 U.S. at 150, four circuits have now
established some standards, sparing to be sure, guiding the application
of § 2255's savings clause. See Wofford, 177 F.3d at 1242-45;
Davenport, 147 F.3d at 610-12; Triestman, 124 F.3d at 373-80;
Dorsainvil, 119 F.3d at 248-52.
This court, in a non-Bailey context, briefly commented on the
"savings clause" issue in Barrett.

A petition under § 2255 cannot become "inadequate or
ineffective," thus permitting the use of § 2241, merely
because a petitioner cannot meet the AEDPA "second or
successive" requirements. Such a result would make
Congress's AEDPA amendment of § 2255 a meaningless gesture.
. . .

Such a reading of the savings clause would also recreate the
serious structural problems that led Congress to enact §
2255 in the first place. . . .

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procedural question because the case has come to us in the

customary posture, and Sustache has asked us to decide whether

the savings clause authorizes him to proceed.

A second problem concerns the meaning of the savings

clause itself. The savings clause has most often been used as

a vehicle to present an argument that, under a Supreme Court

decision overruling the circuit courts as to the meaning of a

statute,13 a prisoner is not guilty within the new meaning

Yet the § 2255 savings clause, which has been interpreted to
avoid constitutional questions about § 2255, must mean
something. . . .

We agree with the [Seventh, Third, and Second circuits] that
habeas corpus relief [under § 2241] remains available for
federal prisoners in limited circumstances.

Barrett, 178 F.3d at 50-52 (citations omitted).

13 In recent memory the Supreme Court has done this in Gaudin
v. United States, 515 U.S. 506 (1995) (holding that materiality is an
element of the offense of making false statement to a government agency
and must be submitted to the jury); Bailey v. United States, 516 U.S.
137 (1995) (narrowing the definition of "use" of a firearm in 18 U.S.C.
§ 924(c)(1)); and Jones. As was true of the Supreme Court's decision
in Jones, the Supreme Court's decision in Bailey overturned the
prevailing view in the circuits regarding the meaning of the term "use"
in a federal criminal statute forbidding the "use" or "carrying" of
certain firearms. See Bailey, 516 U.S. at 144. As a result, a number
of prisoners who had been convicted of "use" of a firearm sought to
overturn their convictions. Those who, by happenstance of timing, were
able to raise the issue on direct appeal or in a first habeas petition
were well positioned to benefit from the decision. But prisoners who,
before Bailey, had filed § 2255 petitions raising other claims found

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attributed to the statute. See, e.g., See Wofford, 177 F.3d at

1242-45; Davenport, 147 F.3d at 610-12; Triestman, 124 F.3d at

373-80; Dorsainvil, 119 F.3d at 248-52. The savings clause has

to be resorted to for such a statutory claim because Congress

restricted second or successive petitions to constitutional

claims. If a Jones claim is purely statutory, then an argument

under the savings clause may be warranted. If, post-Apprendi,

the Jones claim is a constitutional claim, there is less reason

to resort to the savings clause, as Congress permits new

constitutional rule claims to be made on second or successive

petitions provided that the Supreme Court has made the new rule

retroactive (and the claim was not previously available). If

the Supreme Court does not ever make the decision retroactive,

the prisoner is no worse off than before. If the Supreme Court

eventually makes the rule retroactive, the prisoner may at that

time attempt a claim by second or successive § 2255 petition.14

themselves in quandaries similar to that faced by Sustache.

14 This raises the prospect of whether the savings clause might
still play a role in permitting a prisoner to bring an earlier petition
where the Supreme Court has not yet made a decision retroactive to
cases on collateral review but Supreme Court precedent strongly
suggests that it will. There would then be an argument of unfairness
in continuing to imprison the petitioner until the day the Supreme

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Whether the Jones claim is constitutional or statutory is not a

question we need to resolve; nor do we need to resolve the

meaning of the savings clause, as Sustache's claim fails under

a related doctrine, described below.

The last problem here arises from the fact that

Sustache failed to make the Jones argument earlier.

Consequently, whether Sustache's petition is properly treated as

falling under § 2255 or under § 2241, he must show cause and

prejudice for his failure to have previously made the claim. We

know from Bousley that a first § 2255 petition must meet the

cause and prejudice standard if it presents a claim not made

earlier. See Bousley, 523 U.S. at 622. In Brache v. United

States, 165 F.3d 99, 102 (1999), this court declined to limit

Bousley to petitions attacking guilty pleas and applied Bousley

to an attack on a conviction after trial. We also know that the

cause and prejudice standard applies equally to habeas actions

brought under § 2241 and § 2255. See e.g., Moscato v. Federal

Bureau of Prisons, 98 F.3d 757, 761 (3rd Cir. 1996); George v.

Perrill, 62 F.3d 333, 335 (10th Cir. 1995). It would be

Court makes the decision retroactive. We need not address the problem
here.

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anomalous if procedurally defaulted claims falling within the

savings clause of § 2255 did not also have to meet a "cause and

prejudice" standard. It would also be contrary to the

legislative history of § 2255, well laid out in Wofford, 177

F.3d at 1239 ("There was no intent to make the § 2255 remedy any

different in scope from the habeas remedy that had previously

been available . . . .").

D. Cause and Prejudice

The government argues that while it may seem unfair to

deny Sustache a chance to present his claim through some form of

post-conviction petition, it does not matter because he does not

present even a plausible claim of cause and prejudice. In

response, Sustache argues that he has suffered prejudice in that

a judge, not a jury, decided the serious bodily injury issue.

In the end, the government is correct that Sustache has

suffered no cognizable prejudice. The jury heard testimony that

the victims were shot at multiple times during the course of the

carjacking and that both had been hit, one victim in the

abdomen. The testimony was undisputed. Further, the pre-

sentence report explained that a gunshot to the leg resulted in

amputation below the knee.

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 Against this factual background, we ask by what

standard the question of prejudice is to be decided. The first

question we consider is whether the error of not submitting the

issue of serious bodily injury to the jury constituted

"structural error." If it did constitute structural error,

there would be per se prejudice, and harmless error analysis, in

whatever form, would not apply. But we think Supreme Court

precedent makes it clear that the error at Sustache's trial was

not structural error.15

In Neder v. United States, 527 U.S. 1 (1999), the Court

held that the omission of an element of a criminal offense from

a jury instruction is not structural error and is, therefore,

subject to harmless error analysis. Neder involved the failure

to submit the element of materiality to the jury in a tax fraud

prosecution. Following Neder, this court, in United States v.

Perez-Montanez, 202 F.3d 434 (1st Cir. 2000), held that a Jones

error, as claimed here, is not in the "special category of

forfeited errors that can be corrected regardless of their

15 The court in Apprendi merely remanded the case for further
proceeding not inconsistent with the opinion. See Apprendi, 2000 WL
807189, at *17. It shed no light on the standards to use to evaluate
the effect of any error.

-24-
effect on the outcome," id. at 442 n.3, as structural errors

were described by the Supreme Court in United States v. Olano,

507 U.S. 725, 734 (1993). Accordingly, in Perez-Montanez, a

case applying Jones on direct appeal where the Jones argument

had not been made at trial, we applied plain error analysis and

rejected the defendant's claim that he was entitled to re-

sentencing.16 See Perez-Montanez, 202 F.3d at 441-43. A recent

decision from the Sixth Circuit appears to agree that harmless

error analysis may be appropriate where the question of serious

bodily injury under 18 U.S.C. § 2119(2) was not submitted to the

jury. In United States v. Jackson, No. 98-4205, 2000 WL 665395

(6th Cir. May 23, 2000), the court vacated a § 2119(2) sentence

and remanded for re-sentencing according to the sentencing

provisions of § 2119(1), but it noted that it was compelled to

16 We are aware of two other courts that, arguably, take a
different view; but one case was decided before Neder, and the other
did not discuss it. In United States v. Matthews, 178 F.3d 295, 301
(5th Cir. 1999), a decision issued just days before Neder, the court
vacated a § 2119(2) sentence and remanded for re-sentencing under
§ 2119(1). The Fourth Circuit has done the same in a case decided
after Neder. See United States v. Rudisill, No. 99-4588, 2000 WL
620314, at *1 (4th Cir. May 15, 2000) (unpublished). Rudisill did not
discuss Neder. Both cases involved convictions in which the
indictments -- unlike the indictments in Perez-Montanez, 202 F.3d at
441, and in Sustache's case -- had not specifically charged the
defendants under § 2119's subsections for carjackings resulting in
serious bodily injury or death. See Rudisill, 2000 WL 620314, at *1;
Matthews, 178 F.3d at 301.

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do so "[i]n the absence of any constitutional harmless error

analysis offered by the government." Id. at *1. Because

"[g]overnment counsel did not seek to advance a constitutional

harmless error analysis, even after [the court] asked about it

at oral argument," the court did not address the issue of

harmless error. Id. at *3.

Hence, harmless error analysis applies to the question

of prejudice in this case. Because this case is on collateral

review -- as opposed to direct review -- we apply the "actual

prejudice" harmless error test described in Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). See Singleton v. United

States, 26 F.3d 233, 236-37 & n.9 (1st Cir. 1994). Accordingly,

we ask whether the government can show that the error did not

have "substantial and injurious effect or influence." Brecht,

507 U.S. at 637 (internal quotation marks and citation omitted);

Singleton, 26 F.3d at 236. Under this test, trial error is

deemed harmless "if it is highly probable that the challenged

action did not affect the judgment." Singleton, 26 F.3d at 237

(internal quotation marks and citation omitted).

On the evidence presented, there is no plausible theory

that the failure to submit the question of serious bodily injury

-26-
to the jury had substantial and injurious effect, or that

Sustache did not receive a fair trial on this point.

The carjacking statute initially adopted the definition

of "serious bodily injury" in 18 U.S.C. § 1365 (which

criminalizes tampering with consumer products).17 As defined in

§ 1365, serious bodily injury means, inter alia, bodily injury

involving "substantial risk of death" or "extreme physical

pain." In this case, as in Perez-Montanez,18 "it is as a

practical matter inconceivable that [the] jury would have

hesitated to find the omitted element beyond a reasonable doubt

-- that [serious bodily injury] resulted from the carjacking."

Perez-Montanez, 202 F.3d at 442; cf. United States v. Johnson-

Dix, 54 F.3d 1295, 1312-13 (7th Cir. 1995) (gunshot wound

resulting in broken leg and two-day hospital stay was "serious

bodily injury" under U.S.S.G. § 1.1B, App. Note 1(j) -- which

includes, inter alia, injury "involving extreme physical pain"

17 The definition of serious bodily injury in the carjacking
statute was later amended in respects not relevant to this opinion.
See Carjacking Correction Act, Pub. Law 104-217, § 2, 110 Stat. 3020
(1996); United States v. Vazquez-Rivera, 135 F.3d 172,174-75 (1st Cir.
1998).
18 In Perez-Montanez, there was uncontroverted testimony
regarding the death of the victim of the crime. See Perez-Montanez,
202 F.3d at 443.

-27-
or "requiring medical intervention"); United States v. Moore,

997 F.2d 30, 37 (5th Cir. 1993) (involving same Guidelines

definition and affirming district court's finding that gunshot

wound to leg that resulted in two-hour emergency room visit was

serious bodily injury); United States v. Fitzgerald, 882 F.2d

397, 398 (9th Cir. 1989) ("'serious bodily injury' clearly

encompasses" gunshot wound to the neck as well as gunshot wounds

to chin and forearm); United States v. Cooper, 812 F.2d 1283,

1288 (10th Cir. 1987) (noting, with regard to a criminal statute

that did not define serious bodily injury, that it was "beyond

dispute" that gunshot wound to the chest that resulted in

lengthy hospital stay was serious bodily injury) (Baldock, J.,

concurring); United States v. Jacobs, 632 F.2d 695, 696-97 (7th

Cir. 1980) (involving same statute and affirming conviction for

assault resulting in serious bodily injury where victim was shot

in the arm).

Sustache has not made a claim of actual innocence; nor

could he do so.19

III.

19 Although Sustache argues that he should be able to proceed
by writ of coram nobis or audita querela, these arguments are weaker
than his savings clause argument. See Barrett, 178 F.3d at 54-57.

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 For these reasons we deny the certificate of

appealability under § 2255, conclude that whether or not the

savings clause of § 2255 applies, there is no prejudice, and

dismiss the case. So ordered.

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