[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15826 SEPTEMBER 13, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket Nos. 04-00382-CV-4-WS & 92-04013-CR-4-W
MICHAEL W. MORGAN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 13, 2006)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Michael W. Morgan, a federal prisoner, appeals the district court’s dismissal
as time-barred of his pro se motion to vacate sentence, brought pursuant to 28
U.S.C. § 2255. On appeal, Morgan argues that Crawford v. Washington, 541 U.S.
36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the case on which he relies to support
the claim on which we granted a COA, is a “new rule” of constitutional law that
applies retroactively to cases on collateral review because it falls within one of the
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), exceptions
to the general bar on retroactivity. He argues that he timely filed his motion
pursuant to 28 U.S.C. § 2255 ¶ 6(3) because (1) he filed the motion within one year
of the date the Supreme Court released its Crawford decision, (2) the Crawford
decision amounted to a “right has been newly recognized by the Supreme Court,”
and (3) Crawford applies retroactively to cases on collateral review.
“On appeal, we review a district court’s findings of fact in a 28 U.S.C.
§ 2255 proceeding for clear error, and its legal conclusions de novo.” McCarthy v.
United States, 320 F.3d 1230, 1231-32 (11th Cir. 2003). We conclude that
Morgan’s appeal must be denied for at least two reasons: (1) he failed to fairly
present his Crawford argument in the district court; and (2) his motion is time-
barred.
I.
In his COA application to this Court, Morgan alleged for the first time that
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he suffered Crawford error because the prosecution presented out-of-court
statements offered for the truth of the matter by a police officer who told the
investigating officer both that Morgan was the “enforcer” of a drug ring and that
the declarant provided Morgan with information about police activities. However,
we decline to consider this argument because it was not presented to the district
court.
Morgan’s amended § 2255 motion submitted to the district court identified
no facts to support his allegations of Crawford error. Instead, it asserted only that
“the Government presented testimonial statements of several witnesses who,
although available, [were] not called to testify by the Government.” In his Report
and Recommendation, the magistrate judge stated that Morgan’s failure to identify
specific witnesses and actual testimony was fatal to his efforts to claim Crawford
error. When Morgan submitted his objections to the Report and Recommendation,
he did not respond to the magistrate judge’s statements and again failed to allege
any facts supporting his claim of Crawford error.
We deem arguments not raised below to have been waived on appeal unless
one of five exceptions have been met. Narey v. Dean, 32 F.3d 1521, 1526-27
(11th Cir. 1994). The exceptions are: (1) the issue involves a pure question of
law and refusal to consider it would result in a miscarriage of justice; (2) the
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appellant is raising an objection to an order which he had no opportunity to raise at
the district court level; (3) the interest of substantial justice is at stake; (4) the
proper resolution is beyond any doubt; or (5) the issue presents significant
questions of general impact or of great public concern. Narey, 32 F.3d at 1526-27.
The only exception of possible relevance to this case is the third. We
recognize that because Morgan is a pro se litigant, his filings should not be held to
the standards applicable to practicing lawyers. But in this case, the defect in
Morgan’s claim was pointed out to him by the magistrate judge and Morgan had
the opportunity to correct the error but did not do so. Thus, the failure to correct
the defect reflects Morgan’s lack of diligence, not his lack of legal acumen. Thus,
we conclude that the interest of substantial justice does not demand that Morgan’s
appeal be heard.
II.
Even if Morgan had presented his Crawford claim, it would be time-barred.
Pursuant to 28 U.S.C. § 2255,
A prisoner in custody under sentence of a court established by Act of
Congress 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, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or
correct the sentence.
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However, there is a one-year period of limitations within which a federal prisoner
can file a § 2255 motion. 28 U.S.C. § 2255 ¶ 6. This one-year period of limitation
for filing a § 2255 motion runs from the latest of either:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
Id.
The Supreme Court held in Crawford that “[w]here testimonial statements
are at issue, the only indicium of reliability sufficient to satisfy constitutional
demands is . . . confrontation.” 541 U.S. at 68-69, 124 S.Ct. at 1374. This holding
abrogated Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980),
which had allowed the admission of an unavailable witness’s statement against a
criminal defendant if the statement bore adequate indicia of reliability, a test met
when the evidence either fell within a firmly rooted hearsay exception or bore
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particularized guarantees of trustworthiness. Crawford, 541 U.S. at 680-69, 124
S.Ct. at 1374. In Crawford, the Court established a rule that, “[w]here testimonial
evidence is at issue . . . the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination.” Id. at 68,
124 S.Ct. at 1374.
The general rule is that new constitutional rules of criminal procedure will
not be retroactively applicable to those cases that have become final before the new
rules are announced. Teague, 489 U.S. at 309-11, 109 S.Ct. at 1075-76. The two
exceptions to this rule provide that the new rule applies retroactively if: (1) it
places certain conduct beyond the power of the criminal law-making authority to
proscribe or (2) it requires the observance of those procedures that are implicit in
the concept of ordered liberty. Id. at 311-14, 109 S.Ct. at 1075-77. The
application of the second exception is limited to watershed rules of criminal
procedure, without which the likelihood of an accurate conviction is seriously
diminished. Id. at 311, 313, 109 S.Ct. at 1075-76.
We recently held that Crawford established a new rule of criminal
procedure. Espy v. Massac, 443 F.3d 1362, 1366 (11th Cir. 2006) (addressing the
issue of whether Crawford applies retroactively in the context of a 28 U.S.C.
§ 2254 habeas petition). However, we concluded that, although the rule announced
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in Crawford impacted the accuracy of criminal convictions, it did not qualify as a
“watershed” rule, but rather “merely altered the existing regime.” Id. at 1367.
Accordingly, we held that Crawford did not apply retroactively to cases on
collateral review. Id. This appears to be the majority position among our sister
circuits. Id. (noting that the First, Second, Sixth, Seventh, Eighth and Tenth
Circuits have either held or suggested that Crawford does not apply retroactively
but that the Ninth Circuit has adopted the contrary position).
Based on our holding in Espy, we hold that Crawford does not apply
retroactively to cases on collateral review in the context of an initial § 2255
motion. See Gay v. United States, 816 F.2d 614, 616 n.1 (11th Cir. 1987) (stating
that the principles developed in § 2254 habeas cases also apply to § 2255 motions).
Since Crawford does not apply retroactively, the district court correctly found that
28 U.S.C. § 2255 ¶ 6(3) did not trigger Morgan’s statute of limitations under the
Antiterrorism and Effective Death Penalty Act of 1996.
We note that the Supreme Court has granted certiorari in the Ninth Circuit
case adopting the position contrary to our own. Bockting v. Bayer, 399 F.3d 1010
(9 th Cir. 2005), cert. granted sub nom. Whorton v. Bockting, 126 S.Ct. 2017 (May
15, 2006). However, until the Supreme Court holds otherwise, we are bound by
our prior holding in Espy. See, e.g., Ritter v. Smith, 811 F.2d 1398, 1404-05 (11 th
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Cir. 1987) (“it is well established that the grant of certiorari has no precedential
value”). Accordingly, we affirm the district court’s denial of Morgan’s § 2255
motion.
AFFIRMED.
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