[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
January 21, 2005
No. 05-10045-F THOMAS K. KAHN
________________________ CLERK
IN RE: JERRY J. ANDERSON,
Petitioner.
__________________________
Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255
_________________________
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
Pursuant to 28 U.S.C. §§ 2255 and 2244(b)(3)(A), as amended by §§ 105 and
106 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Jerry J.
Anderson, proceeding pro se, has filed an application seeking an order authorizing
the district court to consider a second or successive motion to vacate, set aside, or
correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted
only if this Court certifies that the second or successive motion contains a claim
involving:
(1) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense; 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. “The 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 requirements of this subsection.” 28 U.S.C.
§ 2244(b)(3)(C).
In his application, Anderson asserts that all four of his claims rely upon both
new rules of constitutional law and newly discovered evidence. In his first claim,
Anderson asserts that the grand jury did not determine the three predicate acts
required for a violation of 21 U.S.C. § 848 before it returned the indictment for his
charge of conviction. Anderson cites Richardson v. United States, 526 U.S. 813, 119
S. Ct. 1707, 143 L. Ed. 2d 985 (1999), as a new rule of constitutional law supporting
this claim. Next, Anderson alleges that the district court exceeded the statutory
maximum for each count of conviction, when it ordered the sentences for each count
of conviction to run concurrently and concluded that that calculation equaled a life
sentence. Anderson cites United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123
L. Ed. 2d 508 (1993), as the new rule of constitutional law supporting this claim.
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Third, Anderson alleges that his life sentence for his 18 U.S.C. § 1956(a)(B)(i)
conviction exceeded the statutory maximum of twenty years, in violation of the new
rules of constitutional law established in Blakely v. Washington, 542 U.S. ____, 124
S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, No. 04-104 (U.S.
Jan. 12, 2005).1 Finally, Anderson alleges that the district court’s sentence
enhancement was unconstitutional, as it was based on an unspecific drug quantity not
alleged in the indictment, again in violation of Blakely and Booker.
As for all of his claims, Anderson alleges that his trial and appellate counsels’
ineffective assistance precluded the claimed defects from being discovered and
objected to in a timely fashion. Thus, asserts Anderson, because these facts were
either overlooked or not properly addressed, his own recent discovery of indictment
and sentencing defects constitutes newly discovered evidence.
Neither of Anderson’s first two claims successfully relies upon a new rule of
constitutional law made retroactive to cases on collateral appeal. In Richardson, the
Court interpreted 21 U.S.C. § 848 and outlined the elements of a continuing criminal
enterprise that must be presented to a jury in order to convict under that statute. See
1
At the time Anderson filed his application for leave to file a successive motion to vacate,
the Supreme Court had not yet issued its opinion in Booker. In fact, Anderson cited to the Booker
lower court opinions. The anticipatory nature of Anderson’s argument, however, does not preclude
us from considering and rejecting his claim based on his failure to present a new rule of
constitutional law made retroactive by the Supreme Court to cases of collateral review, as we discuss
infra.
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Richardson, 526 U.S. at 815-24, 119 S. Ct. at 1709-13. In Olano, the Court
considered whether plain error resulted from the presence of alternate jurors in the
jury room during deliberations. See 507 U.S. at 727, 113 S. Ct at 1774. The holding
has no applicability to Anderson’s argument that his sentence exceeded the statutory
maximum based on the district court’s imposition of concurrent sentences and
imposition of a life sentence. Moreover, the Olano decision issued in 1993 so that it
was available when Anderson filed his first motion to vacate in 1997. Simply put,
neither case satisfies the statutory criteria set forth for reliance upon a new rule of
constitutional law as grounds for a successive motion to vacate. 28 U.S.C. § 2255.
Regarding his newly discovered evidence claims, none centers on any evidence
discovered since his trial. Instead, Anderson asserts that because prior counsel
overlooked the alleged defects, and he recently discovered them, they constitute
newly discovered evidence. However, 28 U.S.C. § 2255 requires that, “if proven and
viewed in light of the evidence as a whole, [the newly discovered evidence] would
be sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense.” Id. Anderson fails
to offer any such evidence here.
As for Anderson’s Blakely and Booker argument, however, a lengthier analysis
is required. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63,
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147 L. Ed. 2d 435 (2000), the Supreme Court 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.” The Court recently revisited that rule in the context of Washington State’s
sentencing guideline scheme, clarifying that “the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant. In other words, the relevant
‘statutory maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional findings.”
Blakely, 124 S. Ct. at 2531, 2537 (citations omitted). Applying these principles, the
Court held that Blakely’s sentence – which was enhanced under the state guidelines
based on the sentencing court’s additional finding by a preponderance of the evidence
that Blakely committed his kidnaping offense with deliberate cruelty – violated the
Sixth Amendment. Id. at ___, 124 S. Ct. at 2534-38.
In Booker, the Supreme Court recently found “no distinction of constitutional
significance between the Federal Sentencing Guidelines and the Washington
procedures at issue” in Blakely. Booker, No. 04-104, slip op. at 8 (opinion of
Stevens, J.). Thus, the Court held that the mandatory nature of the federal guidelines
rendered them incompatible with the Sixth Amendment’s guarantee to the right to a
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jury trial. Id. at 8-10. Extending its holding in Blakely to the Sentencing Guidelines,
the Court explicitly reaffirmed its rationale first pronounced in Apprendi that “[a]ny
fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Id. at 20.
For a new rule to be retroactive to cases on collateral review for purposes of
authorizing a second or successive § 2255 motion or 28 U.S.C. § 2254 petition, the
Supreme Court itself must make the rule retroactive. Tyler v. Cain, 533 U.S. 656,
662-63, 121 S. Ct. 2478, 2482, 150 L. Ed. 2d 632 (2001); In re Joshua, 224 F.3d
1281, 1283 (11th Cir. 2000). As the Court explained in Tyler, considering a
successive habeas petition, “the Supreme Court is the only entity that can ‘ma[k]e’
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.” Tyler, 533 U.S. at 663, 121 S. Ct. at
2482 (alteration in original). Thus, it is not enough that this Court may retroactively
apply a new rule of constitutional law or hold that a new rule of constitutional law
satisfies the criteria for retroactive application set forth by the Supreme Court in
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). See
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Joshua, 224 F.3d at 1283. When the Supreme Court makes a rule retroactive for
collateral-review purposes, it does so unequivocally, in the form of a holding. See
Tyler, 533 U.S. at 663, 121 S. Ct. at 2482. Thus, the Court does not does not make
a rule retroactive through dictum or through multiple holdings, unless those holdings
“necessarily dictate retroactivity of the new rule.” Id. at 663 n.4, 666, 121 S. Ct. at
2482 n.4, 2484.
Regardless of whether Booker established a “new rule of constitutional law”
within the meaning of §§ 2244(b)(2)(A) and 2255, the Supreme Court has not
expressly declared Booker to be retroactive to cases on collateral review. See
Booker, No. 04-105, slip op. at 25 (opinion of Breyer, J.) (expressly extending the
holding “to all cases on direct review”). Put simply, Booker itself was decided in the
context of a direct appeal, and the Supreme Court has not since applied it to a case on
collateral review. In addition to the fact that the Supreme Court has not held that
Booker is retroactive to cases on collateral review, we previously have held that the
Supreme Court has not made Blakely retroactive to cases on collateral review for
purposes of the rules governing the filing of successive habeas actions. See In re
Dean, 375 F.3d 1287, 1290 (11th Cir. 2004). Indeed, as we noted in Dean, the
Supreme Court has indicated the very opposite:
[T]he Supreme Court has strongly implied that Blakely is not to be
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applied retroactively. The same day the Supreme Court decided
Blakely, the Court also issued its decision in Schriro v. Summerlin, ---
U.S. --, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), holding that Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002),
which extended application of Apprendi to facts increasing a defendant's
sentence from life imprisonment to death, is not retroactive to cases on
collateral review. Summerlin, 124 S. Ct. at 2526; see also Blakely, 124
S. Ct. at 2548-49 (O'Connor, J., dissenting) (recognizing the Court's
holding in Summerlin “that Ring (and a fortiori Apprendi) does not
apply retroactively on habeas review”); see also McCoy v. United
States, 266 F.3d 1245, 1256-58 (11th Cir. 2001) (holding that Apprendi
is not retroactive to cases on collateral review); In re Joshua, 224 F.3d
at 1283 (denying the retroactive application of Apprendi to permit
second or successive habeas petitions). Because Blakely, like Ring, is
based on an extension of Apprendi, Dean cannot show that the Supreme
Court has made that decision retroactive to cases already final on direct
review. Accordingly, Dean's proposed claim fails to satisfy the statutory
criteria. 28 U.S.C. § 2255.
Id. It follows that because Booker, like Blakely and Ring, is based on an extension
of Apprendi, Anderson cannot show that the Supreme Court has made that decision
retroactive to cases already final on direct review.
Jerry J. Anderson has failed to make a prima facie showing of the existence of
either of the grounds set forth in 28 U.S.C. § 2255, and accordingly, his application
for leave to file a second or successive motion is hereby DENIED.
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