Ronnie Maurice Howard v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11919 June 25, 2004
THOMAS K. KAHN
________________________
CLERK
D. C. Docket Nos. 02-00856-CV-CB-M
and 97-00178-CR-CB

RONNIE MAURICE HOWARD,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(June 25, 2004)

Before CARNES and WILSON, Circuit Judges, and HANCOCK *, District Judge.

CARNES, Circuit Judge:

Ronnie Maurice Howard appeals from the denial of his 28 U.S.C. § 2255

*
Honorable James H. Hancock, United States District Judge for the Northern District of
Alabama, sitting by designation.
motion as time-barred. The district court concluded that the Supreme Court’s

ruling in Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764 (2002), did not

recognize a “new” right and therefore did not restart the running of the one-year

period of limitation under § 2255 ¶ 6(3). The district court’s conclusion is not an

unreasonable one, but we are obligated to exercise de novo review, Castro v.

United States, 290 F.3d 1270, 1272 (11th Cir. 2002), and doing so we reach the

opposite conclusion.

We believe that Shelton did recognize a new right which is retroactively

applicable on collateral review, thereby bringing his case within the rewind

provision of § 2255 ¶ 6(3). As a result, Howard’s motion was timely filed. We

also believe that he procedurally defaulted his claim by not raising it at his

sentencing proceeding where the error occurred, but the government procedurally

defaulted Howard’s procedural default by failing to raise this affirmative defense

in the district court. The bottom line is that we will reverse and remand.

I.

On March 25, 1997, Howard was convicted of Assault 3rd degree in the

Municipal Court of Selma, Alabama. On May 6, 1997, in an unrelated proceeding,

he was convicted of the unauthorized use of a motor vehicle in the state district

court of Autauga County, Alabama. In neither proceeding was Howard

2
represented by counsel. Each conviction resulted in a suspended sentence and

probation.

In 1998, Howard pleaded guilty in federal court to bank robbery in violation

of 18 U.S.C. § 2113(a) and (d), and to use of a firearm during a crime of violence

in violation of 18 U.S.C. § 924(c). At sentencing, the court calculated Howard’s

base offense level to be 20. The court then assessed one criminal history point for

the assault conviction and one for the unauthorized use of a vehicle conviction. It

added two more because Howard was on probation at the time of the bank robbery.

Those four points raised Howard’s criminal history category from I to III, which

increased the sentencing range for his bank robbery conviction from 33-41 months

to 41-51 months. U.S.S.G. Ch. 5 Pt. A (Nov. 1997) (sentencing table). The court

sentenced Howard to 41 months for that conviction. The four points had no effect

on the sentence for his firearm conviction, which was statutorily set at 60 months.

The sentences were made to run consecutively. The sentence proceeding was on

May 19, 1998, and the judgment became final June 15, 1999.

On November 6, 2002, more than a year after final judgment but within a

year of the Supreme Court’s May 20, 2002 Shelton decision, Howard filed in the

district court what he styled as a 28 U.S.C. § 2241 federal habeas petition. The

district court correctly construed the petition as a motion to vacate pursuant to §

3
2255. See Medberry v. Crosby, 351 F.3d 1049, 1056-59 (11th Cir. 2003)

(explaining the relationship between § 2241 and § 2255). Relying on Shelton,

Howard claimed that the sentencing court had violated his Sixth Amendment right

to counsel by considering the two uncounseled state court convictions in

calculating his criminal history category. Believing that Shelton did not recognize

a new right, the district court denied Howard’s motion as time-barred. It did grant

him a certificate of appealability which, coupled with a notice of appeal, brought

the case to us.

II.

When the district court sentenced Howard for his robbery and firearm

convictions, Howard failed to object to the court’s counting his uncounseled state

court convictions as part of his criminal history. He acknowledges that but says it

should not matter because the issue is one that cannot be procedurally defaulted.

The use of an uncounseled conviction is, Howard contends, a jurisdictional defect.

We have noted that a jurisdictional defect cannot be waived or procedurally

defaulted and that a defendant need not show cause and prejudice to justify his

failure to raise one. McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir.

2001). Relying on language from Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct.

792 (1963), and its progeny, Howard contends that, in the words of the Supreme

4
Court, the ‘“failure to appoint counsel for an indigent [is] a unique constitutional

defect . . . ris[ing] to the level of a jurisdictional defect.”’ Lackawanna County

Dist. Attorney v. Coss, 532 U.S. 394, 404, 121 S. Ct. 1567, 1574 (2001) (quoting

Custis v. United States, 511 U.S. 485, 496, 114 S. Ct. 1732, 1738 (1994)). He

maintains that because his sentencing was tainted by a defect that rose to the level

of a jurisdictional defect, he can bring up that defect for the first time in this

collateral proceeding. The legal premise for Howard’s position is based upon

language wrenched from its context in the Lackawanna and Custis opinions.

Lackawanna held that because of its special status a Gideon-type defect in a

prior conviction may be raised collaterally in a sentence proceeding where that

prior conviction is offered as a basis for enhancement. 532 U.S. at 404-05, 121 S.

Ct. at 1574. But the Supreme Court did not decide in Lackawanna or any other

case that procedural defenses do not apply to claims of Gideon-type errors. Just

the opposite. The Court said in Lackawanna that: “As with any § 2254 petition,

the petitioner must satisfy the procedural prerequisites for relief including . . .

exhaustion of remedies.” Id. at 404, 121 S. Ct. at 1574.

Compliance with contemporaneous objection rules is a procedural

prerequisite for relief on Gideon-related grounds in a § 2255 proceeding, just as it

is in a § 2254 proceeding. That much is clear from the Supreme Court’s opinion in

5
Daniels v. United States, 532 U.S. 374, 121 S. Ct. 1578 (2001). There the Court

said:

A defendant may challenge a prior conviction as the product of
a Gideon violation in a § 2255 motion, but generally only if he raised
that claim at his federal sentencing proceeding. See United States v.
Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584 (1982) (holding that
procedural default rules developed in the habeas corpus context apply
in § 2255 cases); see also Reed v. Farley, 512 U.S. 339, 354-55, 114
S. Ct. 2291 (1994).

Id. at 382-83, 121 S. Ct. at 1583-84. The use of the qualifier “generally” in the

quoted passage recognizes the possibility of an exception where “a habeas petition

directed at the enhanced sentence may effectively be the first and only forum

available for review of the prior conviction.” Lackawanna, 532 U.S. at 406, 121 S.

Ct. at 1575. That is not the situation in the vast majority of cases, like this one,

where the defendant could have raised the claim about the prior conviction in the

sentencing proceeding in which that conviction was used against him.

It is true that Supreme Court decisions from the time of Gideon to the

present day have reflected “a theme that failure to appoint counsel for an indigent

defendant was a unique constitutional defect.” Custis, 511 U.S. at 496, 114 S. Ct.

at 1738. That theme has been manifested in a willingness to allow the defect to be

raised collaterally in a sentence proceeding in which the conviction in question is

being offered for use. It has not, however, been manifested in a willingness to

6
disregard applicable procedural defenses, one of which arises from the failure to

raise the claim in the sentence proceeding.

It is true that the language of jurisdiction was used in some early opinions to

describe this type of error and claim. See id. (citing Johnson v. Zerbst, 304 U.S.

458, 468, 58 S. Ct. 1019, 1024-25 (1938)). But the Supreme Court dealt with and

minimized the significance of that language in Custis. There the Court explained

that at the time that jurisdiction language was first used, “the underlying habeas

statute was construed to allow collateral attacks on final judgments of conviction

only where the rendering court lacked ‘jurisdiction’ – albeit a somewhat expansive

notion of ‘jurisdiction.’” Id. at 494, 114 S. Ct. at 1737 (citing Moore v. Dempsey,

261 U.S. 86, 43 S. Ct. 265 (1923)). Saying that a Gideon error was “jurisdictional”

meant no more than that habeas relief could be granted based upon it. See id.

As the construction of the habeas statute changed, the need to phrase

entitlement to relief in terms of jurisdiction ended. A modern day petitioner cannot

rely on outdated language about Gideon errors rising to the level of jurisdictional

defects in order to get past procedural defenses, because the Supreme Court has

stated in two modern decisions – Daniels and Lackawanna, both decided in 2001 –

that procedural defenses do apply to Gideon-based claims.

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 This does not mean that there are no exceptions to procedural bar defenses.

There are. “A habeas petitioner can escape the procedural default doctrine either

through showing cause for the default and prejudice, or establishing a fundamental

miscarriage of justice.” Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999)

(internal quotation marks and citations omitted). In order to show the type of

“miscarriage of justice” that will excuse a procedural bar, a petitioner must make

“a colorable showing of actual innocence.” Id. Howard has not attempted to do

that. We don’t need to address prejudice, because he has not established cause.

The only arguable cause Howard hints at is novelty. We have explained

what is required to successfully establish the novelty of a claim as cause:

In Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 2910 (1984), the Supreme
Court held “that where a constitutional claim is so novel that its legal basis is
not reasonably available to counsel, a defendant has cause for his failure to
raise the claim in accordance with acceptable state procedures.” In order to
establish the novelty of a constitutional claim sufficient to provide cause, a
defendant must initially demonstrate that his situation is one where a court
has “articulated a constitutional principle that has not been previously
recognized but which has been held to have retroactive application.” Id. at
17, 104 S. Ct. at 2911. . . . A new retroactive decision must be a sufficiently
“clear break with the past,” so that an attorney representing the defendant
would not reasonably have had the tools for presenting the claim in the state
courts. [Id. at 16-17, 104 S. Ct. at 2910-11.]

Hargrave v. Dugger, 832 F.2d 1528, 1530-31 (11th Cir. 1987). Where a number of

others had raised the claim before the petitioner failed to do so, the claim is not

sufficiently novel to meet the cause requirement. See Turner v. Crosby, 339 F.3d

8
1247, 1282 (11th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622-

23, 118 S. Ct. 1604, 1611 (1998)).

Here, the legal basis for the right later recognized in Shelton was readily

available at the time of Howard’s federal sentencing hearing. That is why the

Shelton Court was able to observe that “[c]ourts have divided on the Sixth

Amendment question presented in this case.” 535 U.S. at 660, 122 S. Ct. at 1768.

The opinion in Shelton cites three federal courts of appeals decisions – all on the

books at the time of Howard’s sentencing proceeding – recognizing that

appointment of counsel is a constitutional prerequisite to imposition of a

conditional or suspended prison sentence. Id. (citing United States v. Reilley, 948

F.2d 648, 654 (10th Cir. 1991); United States v. Foster, 904 F.2d 20, 21 (9th Cir.

1990); and United States v. White, 529 F.2d 1390, 1394 (8th Cir. 1976)). The

existence of these decisions at the time of Howard’s sentencing establishes that

other defendants had long been raising the issue. Howard could have as well. In

fact, it would have been easier for him to raise the issue, because those three earlier

decisions themselves provided Howard with additional building blocks with which

to construct a Shelton claim at his sentencing proceeding. The claim was not

sufficiently unheard to be novel for cause purposes.

9
 This means that Howard’s claim is procedurally barred, unless the

government is itself barred from raising that affirmative defense because of its own

default. And it is. The government failed to raise the defense of procedural default

in the district court, and the court did not bring it up either. In these circumstances

Gray v. Netherland, 518 U.S. 152, 165-66, 116 S. Ct. 2074, 2082 (1996), prevents

the government from benefitting now from a defense it did not raise then. For that

reason, we turn to the defense that the government did raise in the district court and

upon which the court did base its dismissal.

III.

Section 2255 imposes a one year limitation period on the filing of motions

for relief under that section. As it relates to this case, the limitation period runs

from the later of:

(1) the date on which the judgment of conviction becomes final;

. . . [or]

(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.

28 U.S.C. § 2255 ¶ 6(1),(3). This case turns on whether the Shelton decision fits

within that third provision, because Howard filed his motion for relief more than a

year after his conviction became final but less than a year after the Shelton decision

10
was released. The district court ruled that the right recognized in Shelton was not a

“newly recognized” one. We disagree.

A.

In deciding “newly recognized” right issues arising under § 2255 ¶ 6(3), we

have applied decisions involving the Teague retroactivity doctrine. See Garcia v.

United States, 278 F.3d 1210, 1212-15 (11th Cir. 2002) (accepting parties’

concession that right was newly recognized to satisfy Teague’s new rule

requirement, and applying Teague’s retroactivity analysis); Dodd v. United States,

365 F.3d 1273, 1278 (11th Cir. 2004) (concluding that a right was newly

recognized based on precedent establishing that a new rule had been announced for

Teague purposes). Under that doctrine, “a case announces a new rule when it

breaks new ground or imposes a new obligation on the States or the Federal

Government. To put it differently, a case announces a new rule if the result was

not dictated by precedent existing at the time the defendant’s conviction became

final.” Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989) (internal

citations omitted).

A result is not dictated by precedent just because “the result the habeas

petitioner seeks is within the logical compass of a prior Supreme Court decision,”

or because “prior Supreme Court decisions inform, or even control or govern, the

11
analysis of the claim.” Spaziano v. Singletary, 36 F.3d 1028, 1042 (11th Cir.

1994) (internal quotation marks omitted). For these purposes, a result is dictated

by precedent only if the court considering the claim at the time the conviction

became final “would have felt compelled by existing precedent to conclude that the

rule [the defendant] seeks was required by the Constitution.” Glock v. Singletary,

65 F.3d 878, 884 (11th Cir. 1995) (internal quotation marks omitted). It is not a

dictated result if the case’s outcome was “susceptible to debate among reasonable

minds.” Id.

The Supreme Court held in Shelton that “a suspended sentence that may

‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless

the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the

crime charged.” Shelton, 535 U.S. at 658, 122 S. Ct. at 1767 (quoting Argersinger

v. Hamlin, 407 U.S. 25, 40, 92 S. Ct. 2006, 2014 (1972)). It said that two prior

decisions “controlled” its judgment in the Shelton case: Argersinger v. Hamlin,

407 U.S. 25, 92 S. Ct. 2006 (1972), and Scott v. Illinois, 440 U.S. 367, 99 S. Ct.

1158 (1979). Shelton, 535 U.S. at 657, 122 S. Ct. at 1767. In Argersinger, the

Supreme Court held that defense counsel must be appointed in any criminal

prosecution “that actually leads to imprisonment even for a brief period.”

Argersinger, 407 U.S. at 33, 37, 92 S. Ct. at 2006, 2012. In Scott, the Supreme

12
Court “drew the line at ‘actual imprisonment,’ holding that counsel need not be

appointed when the defendant is fined for the charged crime, but is not sentenced

to a term of imprisonment.” Shelton, 535 U.S. at 657, 122 S. Ct. at 1767 (quoting

Scott, 440 U.S. at 373-74, 99 S. Ct. at 1162).

The district court in this case concluded that Shelton was dictated by

Argersinger and Scott. It viewed Shelton as a routine application of the “actual

imprisonment” rule of those two earlier decisions, even though Shelton applied the

requirement of counsel to a suspended sentence where an actual deprivation of

liberty is entirely contingent. Shelton had been convicted in an uncounseled

proceeding of third-degree assault and sentenced to a jail term of 30 days. Id. at

658, 122 S. Ct. at 1767-68. The trial court had suspended that sentence and placed

Shelton on probation for two years. Id. Shelton appealed his suspended sentence,

a sentence which had not resulted in even a minute’s incarceration. In no sense

had Shelton been subjected to “actual imprisonment.” Id. In that way, the Shelton

case was different from the Argersinger case. And, of course, it was different from

the Scott case because Shelton did receive a suspended sentence and not merely a

fine as Scott had.

In deciding whether the Shelton decision was dictated by prior decisions, it

is helpful to break its holdings down into two parts. The Shelton Court first held

13
that where the state had not provided counsel to an indigent defendant in a

proceeding resulting in a suspended sentence, it violates the Sixth Amendment to

jail the defendant thereafter for some or all of the term of that sentence because of

a subsequent probation violation. Id. at 662, 122 S. Ct. at 1770. The Court

reasoned that when a suspended sentence is unsuspended following a probation

violation, the resulting incarceration is not for the probation transgression but for

the original offense. Id. It is the uncounseled conviction that results in actual

imprisonment, the Court said. Id.

We doubt that first holding of Shelton was dictated by Argersinger, the rule

of which is that “absent a knowing and intelligent waiver, no person may be

imprisoned for any offense . . . unless he was represented by counsel at his trial.”

Id. at 662, 122 S. Ct. at 1770 (quoting Argersinger, 407 U.S. at 37, 92 S. Ct. at

2012). Before the Court spoke in Shelton, it was not clear that Argersinger’s actual

imprisonment rule applied when there would have been no imprisonment but for a

subsequent probation violation. Argersinger itself was a non-contingent actual

imprisonment case. It was not a case of contingent imprisonment that became

actual only after another event occurred. The defendant in Argersinger, unlike the

one in Shelton, was going to jail even if his post-conviction conduct was purely

angelic.

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 Even if we could say that the first holding of Shelton was dictated by

Argersinger, the Supreme Court went further to reach the result it did. The appeal

in Shelton did not involve a defendant who had actually been sent to jail. Shelton

was unhappy because he had the threat of imprisonment hanging over him; he

wanted to avoid the prospect of jail time if he did violate probation. To reach its

ultimate holding – that “a suspended sentence that may ‘end up in the actual

deprivation of a person’s liberty’ may not be imposed unless the defendant was

accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged,”

Shelton, 535 U.S. at 658, 122 S. Ct. at 1767 (quoting Argersinger, 407 U.S. at 40,

92 S. Ct. at 2014) – the Supreme Court had to go beyond its first holding, and way

beyond the holding in Argersinger. The Court went from a rule requiring counsel

in proceedings which directly result in a sentence of actual imprisonment to one

requiring counsel in proceedings which result in a sentence that contains only the

possibility of imprisonment. The journey from Argersinger to Shelton may be

good constitutional law, but it is still a journey of some distance. The destinations

are different.

The Court did say that Argersinger and Scott “control[led]” its judgment in

Shelton, id. at 657, 122 S. Ct. at 1767, but we know that statement does not mean

that either of those two earlier decisions dictated the result the later one reached.

15
We know that because the Supreme Court itself has told us that for these purposes

“controlled” does not equate with “dictated.” Saffle v. Parks, 494 U.S. 484, 491,

110 S. Ct. 1257, 1261 (1990); see also Spaziano v. Singletary, 36 F.3d 1028, 1042

(11th Cir.1994) (citing Saffle for the same proposition). As the Shelton dissent

pointed out, Scott identified as the central premise of Argersinger “that actual

imprisonment is a penalty different in kind from fines or the mere threat of

imprisonment,” Scott, 440 U.S. at 373, 99 S. Ct. at 1162, and Scott drew the line

defining the right to counsel at actual imprisonment. Shelton, 535 U.S. at 675, 122

S. Ct. at 1776 (Scalia, J., dissenting). The Court in Shelton erased that line and

drew another one far enough out to encompass a mere threat of imprisonment. Of

course, none of this lessens the force of the rule crafted by the Shelton majority

which is, by definition, the law of the land. And we take at full value the

Shelton majority’s statement that Argersinger and Scott controlled the result in that

case. But neither Shelton nor any other Supreme Court decision has ever said that

the rule in that case was dictated by Argersinger and Scott or any other decision.

Nor has the Supreme Court ever suggested that the outcome in Shelton was

not “susceptible to debate among reasonable minds,” which is another measure of

whether a decision is dictated by prior precedent, see Glock v. Singletary, 65 F.3d

at 884. The susceptibility of the Shelton issue to debate among reasonable minds

16
is shown by the status of that issue among the lower courts before the Supreme

Court resolved the matter. Compare United States v. Reilley, 948 F.2d 648, 654

(10th Cir. 1991) (appointment of counsel is a constitutional prerequisite to

imposition of conditional or suspended prison sentence), United States v. Foster,

904 F.2d 20, 21 (9th Cir. 1990) (same), and United States v. White, 529 F.2d 1390,

1394 (8th Cir. 1976) (same), with Cottle v. Wainright, 477 F.2d 269, 274-75 (5th

Cir. 1973) (rejecting counsel prerequisite to imposition of suspended sentence),

vacated on other grounds, 414 U.S. 895, 94 S. Ct. 221 (1973), Griswold v.

Commonwealth, 472 S.E.2d 789, 791 (Va. 1996) (same), and State v. Hansen, 903

P.2d 194, 197 (Mont. 1995) (same). The pre-Shelton split on the question shows

that it was “susceptible to debate among reasonable minds,” which means that the

answer had not been dictated previously. See Glock, 65 F.3d at 884.

The situation here is similar to the one we faced in Turner v. Crosby, 339

F.3d 1247 (11th Cir. 2003). There we held that the Supreme Court’s decision in

Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), was not dictated by its

earlier decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

Turner, 339 F.3d at 1284. In Apprendi, the Court had 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

17
reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Ring

applied Apprendi to the capital sentencing context, holding that aggravating factors

at sentencing, because they act as the “functional equivalent of an element of a

greater offense,” must be found by a jury beyond a reasonable doubt. Ring, 536

U.S. at 609, 122 S. Ct. at 2443. Ring’s treatment of aggravating factors as

elements of a greater offense extended Apprendi, much as Shelton’s treatment of

suspended sentences as actual sentences extended Argersinger. Both Ring and

Shelton extended an existing rule into a new and different context.

For all of these reasons, we conclude that the rule of the Shelton case does

involve a “newly recognized” right within the meaning of § 2255 ¶ 6(3).

B.

Our conclusion that Shelton announced a “newly recognized” right is not the

end of the analysis, however, because the rewind provision of § 2255 ¶ 6(3) does

not apply unless the newly recognized right has been “made retroactively

applicable to cases on collateral review.” Made retroactively applicable by whom?

In Tyler v. Cain, 533 U.S. 656, 121 S. Ct. 2478 (2001), the Supreme Court

interpreted another AEDPA provision with somewhat similar wording. It held that

the “made retroactive to cases on collateral review by the Supreme Court”

language in 28 U.S.C. § 2244(b)(2)(A) plainly means that the predicate

18
retroactivity holding can come only from the Supreme Court, not from any other

court. Id. at 662, 121 S. Ct. at 2482; id. at 668, 121 S. Ct. at 2485 (O’Connor, J.,

concurring). Neither the Supreme Court nor this Court has decided if the same is

true of § 2255 ¶ 6(3)’s less specific language that the right must have been “newly

recognized by the Supreme Court and made retroactively applicable to cases on

collateral review.”

We have no need to decide that issue here, and we imply no view about it.

The government has conceded for purposes of this case that if we ourselves

determine that the right announced in Shelton should be applied retroactively,

Howard’s motion is not time-barred under § 2255 ¶ 6. We realize that in the future

the government may change its mind and press that issue, see Hunter v. United

States, 101 F.3d 1565, 1574 (11th Cir. 1996) (“past experience has taught us that

on occasion the government's position on criminal law issues is fluid”), but it has

not done so in this case. We accept for here and now the government’s waiver of

any argument that § 2255 ¶ 6(3) applies only when the Supreme Court itself has

made a newly recognized right retroactively applicable to cases on collateral

review. Because of that, we proceed to undertake the task of deciding the

retroactivity issue ourselves.

C.

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 Under Teague, new rules of constitutional law are not to be applied

retroactively to cases on collateral review unless they fall into one of two

exceptions. Teague, 489 U.S. at 311-13, 109 S. Ct. at 1075-76; see also Saffle, 494

U.S. at 494-95, 110 S. Ct. at 1263-64 (same); Garcia v. United States, 278 F.3d

1210, 1214 (11th Cir. 2002) (same). Only the second exception is in play here.

Under it, a new rule should be applied retroactively if it “requires the observance

of those procedures that . . . are implicit in the concept of ordered liberty.” Teague,

489 U.S. at 311, 109 S. Ct. at 1076 (internal quotation marks and citations

omitted). This exception is “reserved for watershed rules of criminal procedure . . .

[that] properly alter our understanding of the bedrock procedural elements.” Id.

We have stated that ‘“[t]o fall within the [second] exception, the new rule must

satisfy a two-pronged test: (1) it must relate to the accuracy of the conviction; and

(2) it must alter our understanding of the bedrock procedural elements essential to

the [fundamental] fairness of a proceeding.”’ Garcia, 278 F.3d at 1215 (quoting

Nutter v. White, 39 F.3d 1154, 1157 (11th Cir.1994)).

Overshadowing our consideration of whether Shelton’s extension of the

right to counsel should be made retroactively applicable is one momentous fact:

Every extension of the right to counsel from Gideon through Argersinger has been

applied retroactively to collateral proceedings by the Supreme Court. The holding

20
of Gideon itself, which established the right to counsel in all felony convictions,

372 U.S. at 344-45, 83 S. Ct. at 796-97, was judged to be retroactively applicable

in Kitchens v. Smith, 401 U.S. 847, 847, 91 S. Ct. 1089, 1090 (1971). The right to

counsel at plea hearings, recognized in White v. Maryland, 373 U.S. 59, 83 S. Ct.

1050 (1963), was held to be retroactively applicable in Arsenault v. Massachusetts,

393 U.S. 5, 6, 89 S. Ct. 35, 36 (1968). The right to counsel at probation revocation

hearings, announced in Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254 (1967), was

held to be retroactively applicable in McConnell v. Rhay, 393 U.S. 2, 3-4, 89 S. Ct.

32, 33-34 (1968). The right to counsel on appeal, recognized in Douglas v.

California, 372 U.S. 353, 83 S. Ct. 814 (1963), has also been retroactively applied.

See McConnell, 393 U.S. at 3, 89 S. Ct. at 33. Finally, Argersinger’s extension of

the right to counsel to any prosecution leading to actual imprisonment was deemed

retroactively applicable in Berry v. City of Cincinnati, 414 U.S. 29, 29-30, 94 S.

Ct. 193, 194 (1973). A score that is perfect packs punch in any analysis.

The implication of all those retroactivity decisions dealing with Gideon-

related rights is arguably lessened because they were made in the pre-Teague era.

The Supreme Court has not decided the retroactivity of any rule expanding Gideon

since the Teague regime began in 1989 – there have been no expansions of Gideon

since then except for Shelton. Before Teague retroactivity issues in criminal cases

21
were governed by the guidelines set out in Linkletter v. Walker, 381 U.S. 618, 85

S. Ct. 1731 (1965). Under the Linkletter guidelines the Court considered the

purposes of the new rule, any reliance on the old rule, and the effect retroactive

application of the new rule would have on the administration of justice. Id. at 636,

85 S. Ct. at 1741; Johnson v. State of New Jersey, 384 U.S. 719, 727, 86 S. Ct.

1772, 1777 (1966). Because of the substantial difference in analysis, the pre-

Teague decisions applying Gideon-related rights retroactively do not control

whether a post-Teague decision announcing a new one is retroactively applicable.

But those pre-Teague decisions are hard to ignore. There are statements in them,

and in later decisions characterizing them, that stress the importance of the right to

counsel in the retroactivity context.

Examples of various paeans to the right to counsel abound. “The Supreme

Court typically offers the right to counsel . . . as the paradigm of a ‘bedrock

procedural element’ falling within the second exception.” Nutter v. White, 39 F.3d

1154, 1157-58 (11th Cir. 1994) (quoting Mackey v. United States, 401 U.S. 667,

693-94, 91 S. Ct. 1160, 1180-81 (1971) (Harlan, J., concurring)). “The right to

counsel at the trial . . . on appeal, and at the other ‘critical’ stages of the criminal

proceedings have all been made retroactive, since the ‘denial of the right must

almost invariably deny a fair trial.’” Arsenault, 393 U.S. at 6, 89 S. Ct. at 36

22
(citations omitted). The right to counsel relates to “the very integrity of the fact-

finding process.” McConnell, 393 U.S. at 3, 89 S. Ct. at 33. The Supreme Court

has “underscored the narrowness of [Teague’s] second exception by using as a

prototype the rule of Gideon.” Spaziano, 36 F.3d at 1043 (citing Teague, 489 U.S.

at 313, 109 S. Ct. at 1077); see Beard v. Banks, 542 U.S. ___, No. 02-1603, at 11

(June 24, 2004) (“In providing guidance as to what might fall within this [second

Teague] exception, we have repeatedly referred to the rule of Gideon v.

Wainwright . . . and only to this rule.”); Saffle, 494 U.S. at 495, 110 S. Ct. at 1264

(“Although the precise contours of this [second Teague] exception may be difficult

to discern, we have usually cited Gideon . . . to illustrate the type of rule coming

within the exception.”).

Significantly, the Supreme Court has never distinguished between different

contexts in judging whether an extension of the right to counsel should be made

retroactive. It appears that for these purposes at least one right to counsel case is

indistinguishable from another. See Arsenault, 393 U.S. at 6, 89 S. Ct. at 36. The

Supreme Court has instructed us that the right to representation by counsel is

inevitably tied to the accuracy of a conviction. McConnell, 393 U.S. at 3-4, 89 S.

Ct. at 33-34. We have said outright that the right to counsel is a bedrock

procedural element for Teague purposes. See Nutter, 39 F.3d at 1157.

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 The government does not dispute much, if any, of this, but instead pegs its

position to the proposition that Shelton did not really alter our understanding of the

right to counsel. Having already held in this opinion that Shelton’s application of

the right to counsel in a new context constitutes a “newly recognized” right, it

would be odd to hold now that our understanding was not altered by the Shelton

decision. Before Shelton this circuit had no rule on whether it violated the Sixth

Amendment right to counsel to use an uncounseled conviction that had not resulted

in jail time to enhance the sentence imposed for a counseled conviction. Other

courts had answered that question in different ways. Now, the split of authority

has been healed. Along with every other court in the country, we must follow the

Shelton rule. Our own understanding has been altered because it went from a

blank slate to one on which is written the Shelton rule.

Another consideration in deciding this retroactivity issue is the realization

that Teague is a remarkably restrictive doctrine, and its second exception

exceedingly narrow. As we have explained:

This exception is a narrow one, and its narrowness is consistent with the
recognition underlying Teague that retroactivity “seriously undermines the
principle of finality which is essential to the operation of our criminal justice
system.” Teague, 489 U.S. at 309, 109 S. Ct. at 1074. To fit within the
second exception, it is not enough that the rule “preserve the accuracy and
fairness of capital sentencing judgments,” Sawyer, 497 U.S. at 24[2], 110 S.
Ct. at 2831, or that it “is aimed at improving the accuracy of trial.” Id. The
new rule also must be so fundamentally important that its announcement is a

24
 “groundbreaking occurrence.” Caspari, 510 U.S. at 396, 114 S. Ct. at 956.
It must be a “watershed rule” that “alter[s] our understanding of the bedrock
procedural elements essential to the fairness of a proceeding.” Sawyer, 497
U.S. at 241, 110 S. Ct. at 2831 (internal quotation marks omitted). Thus,
there is a requirement of “the primacy and centrality of the rule,” Saffle, 494
U.S. at 495, 110 S. Ct. at 1264.

Spaziano, 36 F.3d at 1042-43.

The Supreme Court has often examined, announced, or proposed new rules

of law to see if they fit within the strictures of Teague’s second exception, but it

has never found one that does. Beard, No. 02-1603, at 10; see id. at 13-14 (holding

that the new rule announced in Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860

(1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227 (1990), does

not fit within the second Teague exception); Schriro v. Summerlin, 542 U.S. ___,

No. 03-526, at 10 (June 24, 2004) (same holding regarding the new rule announced

in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002)); O’Dell v. Netherland,

521 U.S. 151, 167, 117 S. Ct. 1969, 1978 (1997) (same holding regarding the rule

of Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187 (1994)); Gray v.

Netherland, 518 U.S. 152, 170, 116 S. Ct. 2074, 2085 (1996) (same holding

regarding a proposed new rule concerning notice to a defendant of evidence to be

used against him in a capital sentencing proceeding); Goeke v. Branch, 514 U.S.

115, 120, 115 S. Ct. 1275, 1278 (1995) (per curiam) (same holding regarding a

proposed new rule relating to the fugitive disentitlement doctrine); Caspari v.

25
Bohlen, 510 U.S. 383, 396, 114 S. Ct. 948, 956 (1994) (same holding regarding a

proposed new rule that Double Jeopardy Clause applies to noncapital sentencing

proceedings); Gilmore v. Taylor, 508 U.S. 333, 345, 113 S. Ct. 2112, 2119 (1993)

(same holding regarding a new rule about jury instructions on mitigating mental

state in a murder case); Graham v. Collins, 506 U.S. 461, 478, 113 S. Ct. 892, 903

(1993) (same holding regarding a proposed new rule concerning jury questions in

Texas’ capital sentencing scheme); Sawyer, 497 U.S. at 244, 110 S. Ct. at 2832

(same holding regarding the new rule of Caldwell v. Mississippi, 472 U.S. 320,

105 S. Ct. 2633 (1985)); Saffle, 494 U.S. at 495, 110 S. Ct. at 1264 (same holding

regarding a proposed new rule regarding jury consideration of sympathy in a

capital sentencing proceeding); Butler v. McKellar, 494 U.S. 407, 416, 110 S. Ct.

1212, 1218 (1990) (same holding regarding the new rule of Arizona v. Roberson,

486 U.S. 675, 108 S. Ct. 2093 (1988)).

We have been slightly more liberal in our application of Teague’s second

exception and have on two occasions found a rule to fit within it, but in one of

those the Supreme Court later disagreed. In Nutter, 39 F.3d at 1157-58, we held

that the new rule of Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990), which

prohibited certain jury instruction language that undermined the beyond a

reasonable doubt standard, did fall into the second Teague exception because the

26
rule is central to an accurate determination of innocence or guilt, and, like Gideon,

implicated a fundamental guarantee of a fair trial. In Clark v. Dugger, 901 F.2d

908, 912-13 (11th Cir. 1990), we held that the rule announced by the Supreme

Court in its Caldwell decision fit within the second Teague exception, but the

Supreme Court itself later disagreed. See Sawyer, 497 U.S. at 244, 110 S. Ct. at

2832.

More often we, like the Supreme Court, have found that new rules cannot

squeeze within the narrow confines of the second Teague exception. See Turner v.

Crosby, 339 F.3d 1247, 1285 (11th Cir. 2003) (holding that the new rule of Ring v.

Arizona does not fall into the second Teague exception); Housel v. Head, 238 F.3d

1289, 1298 (11th Cir. 2001) (same holding regarding proposed new rule that

Eighth Amendment forbids jury from weighing unadjudicated crimes in capital

sentencing proceeding); Glock, 65 F.3d at 890 (same holding regarding the new

rule of Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926 (1992)); Spaziano, 36

F.3d at 1043 (same holding regarding proposed new rule to bar or curtail the use of

a witness’ hypnotically refreshed testimony against a defendant); Collins v. Zant,

892 F.2d 1502, 1512 (11th Cir. 1990) (per curiam) (same holding regarding the

new rule of Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404 (1986)).

27
 The lesson of all these decisions, we believe, is that the second Teague

exception is so tight that very few new rules will ever squeeze through it. The

exception that proves the exception, however, is a new Gideon-related rule. Over

and over again, the Supreme Court and this Court have held up Gideon as the

paradigm case for the second Teague exception. See, e.g., Saffle, 494 U.S. at 495,

110 S. Ct. at 1264 (“[W]e have usually cited Gideon . . . to illustrate the type of

rule coming within the exception.”); Nutter, 39 F.3d at 1157-58 (“The Supreme

Court typically offers the right to counsel . . . as the paradigm of a ‘bedrock

procedural element’ falling within the second exception [of the Teague rule]”).

The pre-Teague retroactivity decisions dealing with right to counsel indicate that

each extension of that groundbreaking decision has itself been treated with the

worshipful respect accorded Gideon itself. The inference we draw is that it is the

sheer importance of the right to counsel that is primary in the analysis, not the

incremental extension of that right in the case at hand. At the risk of

oversimplification, for purposes of the second Teague exception there are new

rules, and then there are new Gideon-extension rules. The Shelton decision fits

within the second category.

IV.

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 Because the government procedurally defaulted its procedural bar defense

against the Shelton claim in this case, the result of this appeal turns on whether the

Shelton decision is a “right [that] has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review” within the

meaning of § 2255 ¶ 6(3). The government having waived in this case any

argument that the rewind provision applies only when the Supreme Court itself has

held the new right to be retroactively applicable, we have made that determination

ourselves. In our judgment, the new rule of the Shelton decision does apply

retroactively to cases on collateral review. As a result, it is a decision which

restarted the one-year clock of § 2255 ¶ 6’s statute of limitations.

The district court’s dismissal of Howard’s petition as untimely is

REVERSED, and the case REMANDED for further proceedings consistent with

this opinion.

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