Derman v. United States

United States Court of Appeals
For the First Circuit

No. 01-2545

HERBERT DERMAN,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Selya and Lynch, Circuit Judges,

and Schwarzer,* Senior District Judge.

Richard E. Miller, with whom Kurzman Karelsen & Frank, LLP was
on brief, for appellant.
Kevin O'Regan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Dina Michael
Chaitowitz, Appellate Chief, were on brief, for appellee.

July 25, 2002

______________
*Of the Northern District of California, sitting by designation.
 SELYA, Circuit Judge. In this appeal, petitioner-

appellant Herbert Derman challenges the district court's denial of

his application for post-conviction relief. He argues that the

Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466

(2000) — announced after we rejected his direct appeal but before

the expiration of the time within which he was eligible to apply

for a writ of certiorari — demands that we set aside his

conviction. Although his appeal is ably argued and raises

intricate issues (including one that has divided our sister

circuits and another that is of first impression at the appellate

level), it is in the end unavailing. Consequently, we affirm the

district court's dismissal of the application for post-conviction

relief.

I. BACKGROUND

We limn those facts pertinent to the instant appeal,

referring readers who crave more exegetic detail to our opinion

affirming the petitioner's conviction. See United States v.

Derman, 211 F.3d 175 (1st Cir. 2000).

Beginning in 1984, Marcel Rosenzweig oversaw an

underground greenhouse on property owned by the petitioner. This

facility housed a huge marijuana-growing operation. The venture

prospered for several years.

When word of a large-scale marijuana grow leaked in 1991,

police officers visited the site. They were thrown off the scent

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by a legal above-ground greenhouse that Rosenzweig and his cohorts

ran to conceal the illegal activities below. Because the officers

did not realize what lay beneath, their search revealed only trace

amounts of marijuana.

In an abundance of caution, Rosenzweig moved the

enterprise to a different locus. The culprits continued growing

and distributing marijuana until the federal government cracked the

case four years later. A federal grand jury sitting in the

District of Massachusetts soon indicted the petitioner and six

other persons (including Rosenzweig). The indictment charged the

defendants with, inter alia, conspiring to manufacture and

distribute marijuana. See 21 U.S.C. §§ 841(a)(1), 846. As part of

the conspiracy charge, the indictment specifically mentioned a

statutory provision mandating a ten-year minimum sentence for

conspiracies involving at least 1,000 marijuana plants. See id. §

841(b)(1)(A).

All the defendants, save only the petitioner, pleaded

guilty to the charges. The petitioner maintained his innocence,

asserting that he had no knowledge of either the underground

greenhouse or its unlawful contents. The district court instructed

the jury on the standard issues, but not on the question of drug

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quantity. The jury found the petitioner guilty on the conspiracy

count and on a related forfeiture count.1

The jury returned its verdict on July 29, 1998. The

district court denied the petitioner's post-trial motions and

scheduled the disposition hearing to take place on March 5, 1999.

Drug quantity was a contested issue. See United States v. O'Campo,

973 F.2d 1015, 1026 (1st Cir. 1992) ("[T]he base offense level of

a co-conspirator at sentencing should reflect only the quantity of

drugs he reasonably foresees it is the object of the conspiracy to

distribute after he joins the conspiracy."). The relevant measure

of drug quantity in this case was the number of marijuana plants

involved. Leaving recidivism to one side, a defendant convicted of

participation in a conspiracy that involves fewer than fifty plants

can receive an incarcerative sentence of no more than five years.

21 U.S.C. § 841(b)(1)(D). If the conspiracy involved fifty plants

or more, the maximum sentence is twenty years. Id. § 841(b)(1)(C).

For a conspiracy of 100 plants or more, the maximum sentence is

forty years. Id. § 841(b)(1)(B). Finally, for a conspiracy of

1,000 plants or more, the maximum sentence is life. Id. §

841(b)(1)(A). The number of marijuana plants also can dictate a

mandatory minimum sentence: five years for 100 plants or more, id.

1
The jury acquitted the petitioner on several other charges,
including money laundering. Because the acquitted conduct is not
relevant to the issues on appeal, we do not elaborate on those
counts.

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§ 841(b)(1)(B), and ten years for 1,000 plants or more, id. §

841(b)(1)(A).

In this instance, the probation department prepared a

presentence investigation report (the PSI Report) concluding that

the petitioner was responsible for 213,000 marijuana plants. The

petitioner objected, claiming that he could not reasonably have

foreseen the vast amounts of marijuana grown underneath his

property and elsewhere. On that basis, he argued that his sentence

should not be more than five years. See id. § 841(b)(1)(D)

(establishing a five-year default statutory maximum for a quantity

of marijuana less than fifty plants).

The district court flatly rejected the petitioner's

contention. Focusing on the fact that 1,000 plants was the number

of marijuana plants needed to trigger a ten-year mandatory minimum

sentence, see id. § 841(b)(1)(A), the court stated: "I would have

to find that the sky was green to conclude that there weren't at

least a thousand plants that were foreseeable in this conspiracy at

the time that [the petitioner] entered into it . . . ." That said,

the court proceeded to calculate the total number of plants

attributable to the petitioner. The court presumed that the

petitioner reasonably could have foreseen an output of 200 plants

a month (a total of 26,400 plants over the eleven-year span of the

conspiracy). The court then sentenced the petitioner to an

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incarcerative term of 121 months (one month above the applicable

mandatory minimum).

The petitioner appealed his conviction, but not his

sentence. We rejected his direct appeal on May 5, 2000. Derman,

211 F.3d at 177. In the course of that appeal, he assigned no

error implicating either the jury instructions or the lower court's

assessment of drug quantity.

The petitioner had ninety days from the date of entry of

our judgment to file a petition for a writ of certiorari to the

Supreme Court of the United States. See Sup. Ct. R. 13(1). The

Supreme Court decided Apprendi on June 26, 2000 — well within that

ninety-day window. Apprendi's core holding is 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. at 490. The petitioner's trial seemingly flouted this

principle: after all, the district court did not instruct the jury

on a fact — drug quantity — that increased the maximum penalty for

the petitioner's crime from five years (the default statutory

maximum) to life imprisonment. Compare 21 U.S.C. § 841(b)(1)(D)

with id. § 841(b)(1)(A). The petitioner claims that he instructed

his appellate counsel to file a certiorari petition on this ground

during the period in which that opportunity was available to him,

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but that counsel neglected to comply. So ended direct review of

the petitioner's conviction and sentence.

The petitioner thereafter retained a new lawyer. On

April 27, 2001, he launched a collateral attack in the district

court. See 28 U.S.C. § 2255. He asserted that the court had

sentenced him in violation of Apprendi, and that he had received

ineffective assistance of counsel because his appellate attorney

had ignored his instructions to file a petition for a writ of

certiorari.

The district court held a hearing on October 9, 2001.

Ruling from the bench, the court dismissed the petition. Three

days later, the court elaborated on its reasoning in a written

rescript. To summarize, the court rejected the petitioner's

Apprendi claim for three reasons. It held that Apprendi could not

be applied retroactively to the petitioner's habeas claim; that the

petitioner had waived any and all objections to his sentence by

failing to challenge the sentence on direct appeal; and that, in

all events, the district court's failure to submit the drug

quantity question to the jury was harmless because the record

contained overwhelming evidence that the number of marijuana plants

involved in the plot exceeded the number necessary to bring an

elevated maximum sentence into play. On much the same basis the

court also rejected the petitioner's ineffective assistance claim.

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 This appeal ensued. We granted a certificate of

appealability to decide the Apprendi issues. See 28 U.S.C. §

2253(c).

II. FINALITY

We begin our analysis by determining the applicability of

Apprendi to this petition — a determination that requires us to

decide when the petitioner's conviction became "final" within the

meaning of the relevant statute.

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. If the conviction is not yet final when

the Supreme Court announces the rule, then inferior 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, then the defendant ordinarily may not avail himself of the

newly announced rule. Teague v. Lane, 489 U.S. 288, 310 (1989).2

But words often are chameleons, taking on different

shades of meaning in different contexts. The question, then, is

how to define the word "final" in this setting. At the time the

Court decided Teague, the definition seemed clear: a conviction

becomes final when "a judgment of conviction has been rendered, the

2
To be sure, there are certain circumstances in which a newly
announced rule may be applied retroactively to a conviction that
became final beforehand. See Teague, 489 U.S. at 310. Given the
timing here, see text infra, we need not explore these exceptions.

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availability of appeal exhausted, and the time for a petition for

certiorari [has] elapsed or a petition for certiorari [filed and]

finally denied." Griffith, 479 U.S. at 321 n.6.

But the law, by its nature, evolves over time, and the

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

104-132, 110 Stat. 1214 (1996), casts a shadow on the Griffith

definition. In that statute, Congress for the first time

established time limits applicable to the filing of habeas

petitions: a prisoner (state or federal) has one year from the

date on which his conviction becomes "final" within which to seek

federal habeas relief.3 See 28 U.S.C. §§ 2244(d)(1), 2255. In

discussing finality in this context, Congress employed slightly

different terminology in regard to the time limits applicable to

state as opposed to federal prisoners. The one-year period for

filing a petition from a state court conviction begins to run on

"the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such

review." 28 U.S.C. § 2244(d)(1)(A). The one-year period for

filing a petition challenging a federal court conviction is

described more tersely; that period begins to run from and after

"the date on which the judgment of conviction becomes final . . .

." Id. § 2255.

3
This one-year limit is subject to certain periods of tolling.
See, e.g., Neverson v. Bissonnette, 261 F.3d 120, 124 (1st Cir.
2001). These refinements are not relevant here.

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 In Gendron v. United States, 154 F.3d 672 (7th Cir. 1998)

(per curiam), the Seventh Circuit determined that the linguistic

differences in the two provisions meant that Congress intended

divergent versions of finality for state and federal convictions.

The court reasoned that "[w]here Congress includes particular

language in one section of an act but omits it another section of

the same act, . . . the language will not be implied where it has

been excluded." Id. at 674. Since Congress used the phrase

"expiration of the time for seeking such review" only in regard to

state prisoners, the court concluded that "federal prisoners who

decide not to seek certiorari with the Supreme Court will have the

period of limitations begin to run on the date [the court of

appeals] issues the mandate in their direct criminal appeal." Id.

In Kapral v. United States, 166 F.3d 565 (3d Cir. 1999),

the Third Circuit took issue with this interpretation. The court

expressed concern that Gendron invited a series of unfortunate

results. Taken at face value, the Gendron rationale means that a

federal prisoner can file a collateral attack in the district court

and then continue his pursuit of direct review by filing a

certiorari petition. Id. at 570-71. Moreover, under that

rationale, finality will be defined differently for limitation

purposes than for purposes of the Teague "new rule" analysis. Id.

at 572. Last — but far from least — the Gendron rationale creates

an artificial distinction between state and federal prisoners — a

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distinction that Congress, given the common origin and purpose of

the two AEDPA provisions, would have had no reason to draw. Id. at

575. In light of these realities, the court determined that

Congress intended sections 2244 and 2255 to operate on the same

time line. Id. Thus, under the Third Circuit's reading of the

AEDPA, a conviction — whether state or federal — does not become

final until "the later of (1) the date on which the Supreme Court

affirms the conviction and sentence on the merits or denies the

defendant's timely filed petition for certiorari, or (2) the date

on which the defendant's time for filing a timely petition for

certiorari review expires." Id. at 577.

Although the Fourth Circuit has followed Gendron, see

United States v. Torres, 211 F.3d 836, 839-41 (4th Cir. 2000), a

clear majority of the circuit courts that have addressed the

question have marched in lockstep with Kapral. See, e.g., Kaufmann

v. United States, 282 F.3d 1336, 1339 (11th Cir. 2002); United

States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000); United

States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000) (per

curiam); United States v. Burch, 202 F.3d 1274, 1279 (10th Cir.

2000). We too find the Kapral formulation the more persuasive.

While it would be pleonastic to rehearse the Third Circuit's

analysis, we feel obliged to emphasize a factor that has special

relevance to the instant appeal: the relationship between the

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finality of the defendant's conviction and the announcement of new

rules of criminal procedure by the Supreme Court.

Five years after Teague was decided, the Court made

pellucid 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). Accordingly, were we to follow Gendron's

lead and distinguish between the finality of state and federal

convictions, we would be forced to deny federal prisoners the

benefit of a new rule available to similarly situated state

prisoners. Such a result is counter-intuitive, and we do not think

that Congress intended the nature of the particular sovereign

detaining the prisoner to have such a powerful impact on which

defendants may avail themselves of a new rule. Indeed, we can

discern no sensible reason why Congress might wish to classify

prisoners in this peculiar manner — and under the best of

circumstances, such a taxonomy would be difficult to administer.

Certainly, the minor variation in language between

section 2244 and section 2255, respectively, does not demand such

an awkward result. Section 2255 directs that a federal court

judgment be "final" — and that term has a well-defined meaning in

federal law. See, e.g., Griffith, 479 U.S. at 321 n.6; Hanover

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Ins. Co. v. United States, 880 F.2d 1503, 1509 (1st Cir. 1989).

Section 2244 contains the same directive with respect to state

court convictions, but finality is a concept that has differing

meanings under the laws of the several states. Compare, e.g.,

Warren v. State, 833 S.W.2d 101, 102 (Tenn. Crim. App. 1992) ("If

one convicted of a crime takes no action to perfect his right to

appeal, the statute of limitations begins to run from the date of

final conviction"), with, e.g., Mont. Code. Ann. § 46-21-102(1)

(defining finality for purposes of state habeas proceedings in a

manner similar to 28 U.S.C. § 2244(d)(1)(A)). Thus, Congress chose

to ensure uniformity by explaining what "final" means in the

context of a federal habeas petition that seeks to challenge a

state court conviction. No similar need existed with respect to

federal court convictions (and, thus, the explanatory language was

omitted in section 2255).

We will not paint the lily. We hold that a conviction

for a federal defendant who fails to file a petition for a writ of

certiorari becomes final when the period in which he seasonably

might have done so expires. This levels the playing field as

between state and federal prisoners desirous of seeking federal

habeas relief.

Our construction of section 2255 resolves the threshold

question presented in this appeal. Because the Supreme Court

decided Apprendi while the petitioner still had breathing room

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within which to file a petition for certiorari, his conviction was

not yet final at that time. It follows inexorably that the

Apprendi rule applies to the petitioner's case. Griffith, 479 U.S.

at 322. What remains to be seen is whether Apprendi aids the

petitioner's cause.

III. THE MERITS

We next trace the contours of the Apprendi error that

occurred during the petitioner's trial and decide whether it

necessitates vacation of the petitioner's sentence.

A. The Apprendi Error.

The government concedes that the petitioner's case

suffers from a strain of Apprendi error. In hindsight, the trial

court should have asked the jury to determine, beyond a reasonable

doubt, whether the underlying conspiracy involved a drug quantity

sufficient to trigger a sentence higher than the five-year default

statutory maximum. See United States v. Barnes, 244 F.3d 172, 177-

78 (1st Cir.) (explaining the genesis of the default statutory

maximum in an analogous context), cert. denied, 122 S. Ct. 379

(2001); see also 21 U.S.C. § 841(b)(1)(D) (setting five-year

maximum for a conspiracy involving fewer than fifty marijuana

plants). Absent such a determination, the sentence imposed by the

district court — ten years and one month — is open to question.

The petitioner tries to define the district court's error

more broadly. He asserts that the court transgressed Apprendi by

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determining the drug quantity that was reasonably foreseeable to

him rather than tendering that question to the jury. In other

words, he claims that the court should have submitted to the jurors

not only the question of drug quantity vis-à-vis the conspiracy but

also the individualized question of what drug quantity was

attributable to him as a coconspirator. We do not agree: the

Apprendi error is far narrower in scope than the petitioner

suggests.

In Edwards v. United States, 523 U.S. 511 (1998), the

Supreme Court held that, as long as (1) the jury finds beyond a

reasonable doubt that a defendant participated in a conspiracy, and

(2) the Court sentences him within the statutory maximum applicable

to that conspiracy, the court may "determine both the amount and

the kind of 'controlled substances' for which [the] defendant

should be held accountable — and then . . . impose a sentence that

varies depending upon amount and kind." Id. at 513-14. Apprendi,

decided two years later, did not purport to overrule Edwards, and

the two decisions are easily harmonized: in a drug conspiracy

case, the jury should determine the existence vel non of the

conspiracy as well as any facts about the conspiracy that will

increase the possible penalty for the crime of conviction beyond

the default statutory maximum;4 and the judge should determine, at

4
This does not mean that a jury need return a special verdict
describing the precise amount of drugs involved in the conspiracy.
It is enough that the jury supportably determines, beyond a

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sentencing, the particulars regarding the involvement of each

participant in the conspiracy. See Edwards, 523 U.S. at 514. This

means that once the jury has determined that the conspiracy

involved a type and quantity of drugs sufficient to justify a

sentence above the default statutory maximum and has found a

particular defendant guilty of participation in the conspiracy, the

judge lawfully may determine the drug quantity attributable to that

defendant and sentence him accordingly (so long as the sentence

falls within the statutory maximum made applicable by the jury's

conspiracy-wide drug quantity determination). Cf. United States v.

Eirby, 262 F.3d 31, 37 (1st Cir. 2001) (holding, post-Apprendi,

that when a sentence falls within the statutory maximum, "judicial

determination of drug quantity under a preponderance-of-the-

evidence standard remains a viable option"). The rule, then, is

that the government need only allege and prove to the jury the bare

facts necessary to increase the statutory sentencing maximum for

the conspiracy as a whole (e.g., that the conspiracy involved at

least 1,000 marijuana plants). See United States v. Patterson, 292

F.3d 615, 623 (9th Cir. 2002) (upholding conviction based on jury

finding that the defendant was guilty of manufacturing 100 or more

reasonable doubt, that the conspiracy involves a drug quantity that
surpasses the threshold amount needed to trigger the relevant
(higher) statutory maximum. See, e.g., United States v. Patterson,
292 F.3d 615, 623 (9th Cir. 2002) (finding no Apprendi error when
jury returned a guilty verdict after being instructed on only a
threshold quantity).

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plants, although the jury was not instructed to determine the exact

amount).

The decisions cited by the petitioner in support of a

contrary rule do not withstand scrutiny. He relies chiefly on

United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000), but no

extended discussion of that decision is warranted. It suffices to

say that the Ninth Circuit severely limited Nordby's reach in

United States v. Buckland, 289 F.3d 558, 567-68 (9th Cir. 2002) (en

banc), and then issued a decision in Patterson that coheres with

the decision we reach today. See Patterson, 292 F.3d at 623.

Our recent opinion in United States v. Bailey, 270 F.3d

83 (1st Cir. 2001), does not advance the petitioner's position.

There, the defendant argued that the jury — and not the judge —

should have decided the quantity of drugs attributed to him at

sentencing. Id. at 85-86. We agreed that, because the defendant

had been sentenced to a term above the default statutory maximum,

an Apprendi error had occurred. Id. at 89. We then considered

whether the error was harmless and concluded that it was not; the

evidence needed to boost the statutory maximum to the next level

was sketchy and permitted a reasonable factfinder to decide the

drug quantity issue either way. Id. at 89-90. Consequently, we

vacated the sentence and remanded for resentencing. Id. at 90.

The decisive factor in Bailey, however, was the government's

inability to prove beyond a reasonable doubt that the conspiracy

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involved the requisite drug quantity necessary to elevate the

applicable statutory maximum to the next level. That weakness is

not present here. See infra Part III(B).

To summarize, we conclude that an Apprendi error

occurred, but that the trial court's determination that the

petitioner reasonably could have foreseen that the conspiracy would

encompass at least 26,400 marijuana plants should not be regarded

as part and parcel of that error. See Edwards, 523 U.S. at 513-14.

Instead, the Apprendi error relates to the failure to have the jury

determine the number of plants involved in the conspiracy. It is

to the effect of that error that we now turn.

B. The Effect of the Error.

The next step in the pavane requires that we determine

whether the discerned error invalidates the petitioner's sentence.

On this point, the petitioner faces an uphill climb. The fact that

Apprendi is available to him in theory (because his conviction was

not yet final when Apprendi was decided) does not mean that he can

take advantage of that decision in practice; the rub is that he

failed either to object to the jury instructions or to contest the

trial court's sentencing determination on direct appeal. These

omissions transgress the general rule that a criminal defendant

must seasonably advance an objection to a potential constitutional

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infirmity in order to preserve the point for collateral attack.5

See Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. 1995).

The rationale behind the rule is straightforward:

A contemporaneous objection enables the record
to be made with respect to the constitutional
claim when the recollections of witnesses are
freshest, not years later in a federal habeas
proceeding. It enables the judge who observed
the demeanor of those witnesses to make the
factual determinations necessary for properly
deciding the federal constitutional question.

Wainwright v. Sykes, 433 U.S. 72, 88 (1977). Moreover, the rule

prevents "'sandbagging' on the part of defense lawyers, who may

take their chances on a verdict of not guilty in a state trial

court with the intent to raise their constitutional claims in a

federal habeas court if their initial gamble does not pay off."

Id. at 89.

The petitioner concedes that he failed to raise and

preserve an Apprendi objection at his trial, but he nonetheless

seeks to avoid any penalty for this procedural default on the

ground that Apprendi changed the traditional method of determining

drug quantity for sentencing purposes, and, thus, constituted a

watershed decision. Whether or not this characterization of

Apprendi is apt, the petitioner's argument is misguided. The

5
This rule was first developed in the context of examinations
by federal habeas courts into independent and adequate grounds for
procedural default in state trials. E.g., Wainwright v. Sykes, 433
U.S. 72, 86-89 (1977). The Supreme Court has extended the rule to
federal convictions. E.g., Bousley v. United States, 523 U.S. 614,
622 (1998).

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inquiry into the applicability of the procedural default rule is,

for the most part, black or white: either the defendant proffered

a timely objection or he did not. While there are a few

exceptions, see, e.g., Bousley v. United States, 523 U.S. 614, 621-

22 (1998) (discussing exception for claims that could not be

presented without further factual development, e.g., a claim that

a guilty plea was coerced), the subsequent announcement of a

Supreme Court ruling — whether or not it blazes new trails — is not

one of them.6

Bousley illustrates this point. That case involved a

habeas application prosecuted by an individual who had pleaded

guilty to a federal firearms offense that was later circumscribed

by the Court. Id. at 616-18 (citing Bailey v. United States, 516

6
This is not to say that how one categorizes Apprendi is
irrelevant. Whether Apprendi may properly be classified as a
watershed opinion and whether the petitioner could have foreseen
the Court's ruling are factors that go to the "cause" prong of the
procedural default analysis. See Bousley, 523 U.S. at 623. Those
courts of appeals that have grappled with these questions to date
have held unanimously that Apprendi was not a watershed decision,
that the Court's opinion was foreseeable to criminal defendants,
and, therefore, that no cause existed sufficient to excuse a
procedural default. E.g., McCoy v. United States, 266 F.3d 1245,
1258-59 (11th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002);
United States v. Moss, 252 F.3d 993, 1001-03 (8th Cir. 2001), cert.
denied, 122 S. Ct. 848 (2002); United States v. Sanders, 247 F.3d
139, 145-46 (4th Cir.), cert. denied, 122 S. Ct. 573 (2001); United
States v. Smith, 241 F.3d 546, 548-59 (7th Cir.), cert. denied, 122
S. Ct. 267 (2001). We recognize, however, that most of these
decisions produced vociferous dissents, see, e.g., McCoy, 266 F.3d
at 1272-74 (Barkett, J., dissenting); Moss, 252 F.3d at 1005-06 (R.
Arnold, J., dissenting), and, given the utter absence of any
prejudice here, it would serve no useful purpose to dive
gratuitously into these murky waters.

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U.S. 137, 143-50 (1995)). Even though the defendant entered his

plea without knowing that the Court subsequently would curtail the

statute in a way that might have affected the outcome of his case,

the Court performed an archetypical procedural default analysis

when it considered his habeas petition. See id. at 621-22. We see

no principled distinction here.

We thus proceed to the question of whether the

petitioner's procedural default is excused. A defendant can

surmount this hurdle in one of two ways. First, he can offer

evidence sufficient to prove that he is actually innocent of the

underlying charge. Id. at 622. The petitioner makes no such

claim.

The second way in which a defendant can clear the

procedural default hurdle is by showing good cause for the default

and actual prejudice resulting therefrom. Burks, 55 F.3d at 716.

We use the conjunctive purposefully because the defendant must

carry the devoir of persuasion as to both cause and prejudice. Id.

Because the petitioner in this case has not sufficiently

demonstrated prejudice, see text infra, we need not inquire into

the question of cause.7

7
This means, of course, that we need not dwell on the
petitioner's allegation that his appellate counsel was ineffective
in failing to file a petition for certiorari. It bears mention,
however, that the Supreme Court has explicitly held that the
failure to file a petition for discretionary review cannot
constitute cognizable ineffective assistance of counsel, and, thus,
such a failure cannot constitute cause sufficient to excuse a

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 The showing of prejudice needed to cure a procedural

default generally requires a habeas petitioner to demonstrate "that

'there is a reasonable probability' that the result of the trial

would have been different" absent the error. Strickler v. Green,

527 U.S. 263, 289 (1999) (quoting Kyles v. Whitley, 514 U.S. 419,

433 (1995)). The question is not whether the petitioner, qua

defendant, would more likely have received a different verdict had

the error not occurred, but whether he received a fair trial,

understood as a trial worthy of confidence, notwithstanding the

bevue. See Kyles, 514 U.S. at 434; see also Prou v. United States,

199 F.3d 37, 49 (equating the prejudice standard for ineffective

assistance cases with the standard for showing case and prejudice

under United States v. Frady, 456 U.S. 152 (1982)).

To be sure, the Supreme Court has not elaborated the

precise definition of the cause and prejudice standard for all

claims. See Amadeo v. Zant, 486 U.S. 214, 221 (1988).8 Still, any

error that results in unfairness so patent as to violate the Due

procedural default. Coleman v. Thompson, 501 U.S. 722, 752-53
(1991).
8
The Court recently held, however, that a defendant's failure
to object to an Apprendi error at trial engenders plain error
review on direct appeal. United States v. Cotton, 122 S. Ct. 1781,
1785 (2002). This is a rigorous standard — under it, a court will
reverse a conviction only if, among other things, the error
seriously affected the fairness, integrity, or public reputation of
the trial — but the showing of prejudice required to excuse a
procedural default is even more demanding. Frady, 456 U.S. at 166.

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Process Clause will necessarily satisfy the Strickler and Kyles

standards. See Murray v. Carrier, 477 U.S. 478, 494 (1986).

We analyze the issue of prejudice based on an examination

of the record as a whole. See Frady, 456 U.S. at 169. Here, our

inquiry focuses on the likelihood that the jury, had it been asked

the question, would have found that the underlying conspiracy

involved the manufacture and distribution of at least fifty

marijuana plants. See 21 U.S.C. § 841(b)(1)(C); see also Harris v.

United States, 122 S. Ct. 2406, 2418 (2002). The burden rests with

the petitioner to show that there is a reasonable probability that

the jury would have reached a different, more favorable conclusion.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); Burks, 55 F.3d at

716.

This inquiry need not detain us. The evidence is

commanding that the conspiracy of which the appellant was a member

involved far more than fifty plants, and that any rational jury

would have found as much. After all, during the course of the

trial the government presented detailed evidence about the size,

scope, and inner workings of the criminal cabal. During the seven

years that the coconspirators operated the underground greenhouse

on the petitioner's property, marijuana was grown in three rooms.

Two rooms were 104 feet long and 36 feet wide, and the other 72

feet long and 38 feet wide. The facility was equipped with special

air-conditioning and heating systems, and was powered by an

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independent generator. At its high point, the underground

greenhouse housed as many as 20,000 plants. Individual harvests

yielded as many as 5,000 plants. The alternate site was on the

same order of magnitude; the government seized 5,600 plants when it

raided the premises in 1995.

In a nutshell, no reasonable juror could have found that

the conspiracy involved fewer than several thousand marijuana

plants. The evidence of the size and duration of the operation was

copious. So too was the evidence of the petitioner's participation

in the enterprise (indeed, he does not now contest that the

government adequately tied him to the marijuana-growing operation).

Fairly viewed, the record as a whole does not lend credence to the

petitioner's plaint that the outcome might have been different but

for the Apprendi error.

In an effort to blunt the force of this conclusion, the

petitioner argues that, had the district court consigned the drug-

quantity issue to the jury, he would have contested that issue more

vigorously. This argument rings hollow. The indictment explicitly

stated that the petitioner was charged with conspiracy in the

manufacture and distribution of 1,000 or more marijuana plants, and

he was thus on notice that he faced a mandatory minimum sentence of

ten years unless he could cast doubt upon that allegation. That

was incentive enough to mount as robust a challenge as possible.

And to cinch matters, the petitioner has alluded to no evidence

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upon which he could have based a credible claim that the conspiracy

involved only a small number of marijuana plants.

The petitioner also posits that he did not know of the

breadth of the conspiracy, and, thus, could not have foreseen the

number of plants attributed to him at sentencing. That argument is

moot. As we have said, once it was established that the petitioner

was a participant in a conspiracy that involved at least fifty

marijuana plants, the district court was free, under Edwards and

Apprendi, to determine foreseeability and sentence the petitioner

within the elevated statutory maximum. The court did so — and the

petitioner eschewed a timely challenge to that determination.9

IV. CONCLUSION

We need go no further. Although the jury instructions in

this case did not anticipate Apprendi, that unpreserved error did

not result in cognizable prejudice. Neither the petitioner's trial

nor his sentence were fundamentally unfair. Under the

circumstances, the district court appropriately denied the

application for post-conviction relief.

Affirmed.

9
Even were the issue of foreseeability still open, the
district court's findings seem unimpugnable. Given the sheer size
of the marijuana-growing operation, its duration, and the mass of
evidence indicating that the petitioner played an integral role in
it, there is no realistic possibility, let alone a reasonable
probability, that a jury would have attributed fewer than fifty
marijuana plants to him.

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