United States Court of Appeals
For the First Circuit
No. 01-2755
GEORGE SEPULVEDA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Elizabeth L. Prevett, Federal Defender Office, for petitioner.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief, for
respondent.
May 29, 2003
SELYA, Circuit Judge. Invoking 28 U.S.C. § 2255 (2000),
petitioner-appellant George Sepulveda, a federal prisoner, mounted
a collateral attack on his conviction and sentence for witness
intimidation. The district court repulsed the attack. The
petitioner's ensuing appeal presents two questions of first
impression within this circuit. The first asks whether the rule
announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), applies
retroactively to cases on collateral review. The second, relevant
only if Apprendi lacks such retroactivity, asks whether the
enactment of the Antiterrorism and Effective Death Penalty Act
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), rendered the
doctrine of Teague v. Lane, 489 U.S. 288 (1989), inapplicable to
initial petitions for post-conviction relief under section 2255.
Concluding, as we do, that Apprendi has no retroactive effect and
that Teague is not a dead letter in the AEDPA context, we affirm
the denial of the petitioner's habeas corpus application.
I. BACKGROUND
The petitioner, known in some circles as "King Paradise,"
was convicted of multiple crimes arising out of his activities as
the leader of the Providence chapter of the Almighty Latin King
Nation. We affirmed those convictions in United States v. Lara,
181 F.3d 183 (1st Cir. 1999). Here, we reconstruct only the
factual terrain pertinent to the issues before us, referring those
-2-
who seek a more detailed topographic model to our earlier opinion.
See id. at 190-91.
A grand jury empaneled in the District of Rhode Island
returned a thirteen-count indictment against the petitioner and
several others. After a lengthy trial, a petit jury convicted the
petitioner of racketeering, conspiracy to commit racketeering,
murder in aid of racketeering, witness intimidation, and possessing
a firearm as a convicted felon. See 18 U.S.C. §§ 1962(c), 1962(d),
1959(a), 1512(b)(3), 922(g)(1). The district court imposed three
concurrent life sentences, a concurrent twenty-year incarcerative
term, and a concurrent ten-year incarcerative term. We affirmed
the convictions and sentences, Lara, 181 F.3d at 206, and the
Supreme Court eschewed further review, 528 U.S. 1127 (2000).
A federal criminal conviction becomes final when the
Supreme Court denies certiorari. See Clay v. United States, 123 S.
Ct. 1072, 1076 (2003). Approximately five months after the denial
of certiorari in the petitioner's case, the Court decided Apprendi.
The central holding of Apprendi 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.
This clarion call arguably conflicted with the procedure employed
by the district court in sentencing the petitioner on the witness
intimidation count. We explain briefly.
-3-
The witness intimidation count arose from an incident
wherein the petitioner ordered the "termination" of Manuel Pacheco,
a state prisoner who was assisting the authorities in their
investigation of the Latin Kings.1 Lara, 181 F.3d at 200. The
petitioner's order passed through various channels to henchmen
(incarcerated Latin King members) within the penitentiary in which
Pacheco was housed. Id. At the first opportunity, these acolytes
beat Pacheco savagely. Id. at 200-01.
A defendant convicted of witness intimidation typically
faces a maximum prison term of ten years. See 18 U.S.C. § 1512(b).
At sentencing, however, the government asked the lower court to
enhance the petitioner's sentence pursuant to the Criminal Street
Gangs Act, which authorizes a ten-year bump in the sentence of an
individual convicted of certain offenses — including witness
intimidation — if it is determined that the individual committed
the offense "intend[ing] to promote or further the felonious
activities of [a] criminal street gang or maintain or increase his
or her position in the gang." Id. § 521(d). The sentencing court
found that the petitioner's conviction fit within these confines
and, accordingly, imposed a twenty-year sentence (double the
maximum otherwise authorized under the statute of conviction).
1
In Latin King parlance, a "termination" can entail anything
from a beating to a slaying. Lara, 181 F.3d at 200.
-4-
On December 29, 2000, the petitioner filed a federal
habeas application — technically, an application to vacate, set
aside, or correct his sentence — under section 2255. See Ellis v.
United States, 313 F.3d 636, 641 (1st Cir. 2002) (observing that,
as to federal prisoners, section 2255 is in essence "a surrogate
for the historic writ of habeas corpus"). In it, he argued that he
had been sentenced to a term of imprisonment above the default
statutory maximum for the crime of conviction based on a judge's
factual finding that the circumstances attendant to his commission
of that crime warranted the enhancement, and that the resultant
sentence violated the Apprendi rule. The district court denied the
application, holding that Apprendi could not be applied
retroactively to cases on collateral review.
The petitioner moved for a certificate of appealability
(COA). See 28 U.S.C. § 2253. We granted the request with respect
to the effect, if any, that the Apprendi decision might have on the
petitioner's conviction for witness intimidation. This appeal
followed.
II. ANALYSIS
It is beyond cavil that the petitioner's sentence for
witness intimidation exceeds the default statutory maximum for that
crime, and that this overage rests on the sentencing court's
finding that the petitioner had acted with the intention of
furthering the felonious activities of a criminal street gang
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and/or maintaining his leadership position in such a gang. Thus,
the petitioner has made at least a prima facie showing of a
violation of the Apprendi rule.2 But the petitioner's conviction
had already become final before Apprendi was handed down, and the
threshold question is whether the new rule applies to his case.
See Derman v. United States, 298 F.3d 34, 39 (1st Cir. 2002). The
petitioner advances two theories in support of the retroactive
application of the Apprendi rule. We address these theories
sequentially.
A. The Teague Exceptions.
The Supreme Court's decision in Teague v. Lane
constitutes a general bar to the retroactive application of newly
announced rules of criminal procedure. Tyler v. Cain, 533 U.S.
656, 665 (2001) (citing Teague, 489 U.S. at 311-13). The Teague
bar admits of two exceptions. The first allows retroactive
application of new rules that either (a) prohibit criminal
punishment for certain types of primary conduct, or (b) forbid the
imposition of certain categories of punishment for particular
classes of defendants. O'Dell v. Netherland, 521 U.S. 151, 157
(1997). This exception is patently inapposite here: Apprendi
neither places any particular type of conduct beyond the reach of
2
The government makes a rather tenuous argument that, even if
Apprendi applies, the rule was not violated here. The government
also maintains that any error was harmless. We need not reach
either of these issues.
-6-
the criminal law nor pretermits any particular type of punishment
for a specific class of defendants. Accord McCoy v. United States,
266 F.3d 1245, 1256 (11th Cir. 2001). Thus, the petitioner's
challenge necessarily stands or falls on the strength of the second
exception.
The second Teague exception allows retroactive
application of "watershed rules of criminal procedure implicating
the fundamental fairness and accuracy of the criminal proceeding."
Graham v. Collins, 506 U.S. 461, 478 (1993) (internal quotation
marks omitted). For this exception to flourish, the new rule must
pass two tests. First, "[i]nfringement of the rule must seriously
diminish the likelihood of obtaining an accurate conviction."
Tyler, 533 U.S. at 665 (citations and internal quotation marks
omitted). Second, the new rule must itself alter the accepted
understanding of the bedrock procedural elements essential to the
integrity and fairness of a criminal proceeding. Id.
Nothing in the Apprendi decision indicates to us that
infringements of its rule will seriously diminish the accuracy of
convictions (which, by definition, must take place before any such
infringement occurs). The case before us provides a practical
illustration of why this is so. The petitioner was tried before a
jury and convicted of witness intimidation upon proof of his guilt
beyond a reasonable doubt. There is no indication that, in the
course of his trial, he received less than the process that was
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due. The procedural error to which the petitioner adverts may
raise questions as to the length of his sentence, but inaccuracies
of this nature, occurring after a defendant has been duly
convicted, are matters of degree and do not trump what the Justices
have termed "the general rule of nonretroactivity." Tyler, 533
U.S. at 665.
We add, moreover, that the length of the petitioner's
sentence was not plucked out of thin air, but, rather, was
determined by a federal judge based upon discrete findings of fact
established by a fair preponderance of the evidence. We agree with
the Seventh Circuit that findings by federal judges, though now
rendered insufficient in certain instances by Apprendi, nonetheless
"are adequate to make reliable decisions about punishment." Curtis
v. United States, 294 F.3d 841, 844 (7th Cir. 2002). After all,
even in the post-Apprendi era, findings of fact made by the
sentencing judge, under a preponderance standard, remain an
important part of the sentencing regimen. See, e.g., United States
v. Caba, 241 F.3d 98, 101 (1st Cir. 2001) ("[A]fter Apprendi, . .
. sentencing factors that boost a defendant's sentence but do not
trip a new statutory maximum remain grist for the district judge's
mill under a preponderance-of-the-evidence standard."); see also
United States v. Robinson, 241 F.3d 115, 122 (1st Cir. 2001)
(rejecting the argument that when facts found by the judge trigger
or increase a mandatory minimum sentence, an Apprendi violation
-8-
occurs). Consequently, Apprendi's new rule not only fails to
impugn the accuracy of convictions that became final beforehand but
also falls short of rendering sentences imposed under the pre-
Apprendi regime seriously inaccurate. See Goode v. United States,
305 F.3d 378, 385 (6th Cir. 2002); cf. United States v. Sanchez-
Cervantes, 282 F.3d 664, 669 (9th Cir. 2002) ("We do not believe
that requiring the jury to make drug quantity determinations beyond
a reasonable doubt will greatly affect the accuracy of
convictions.").
By the same token, we do not believe that the Apprendi
rule can be characterized as a watershed rule of criminal
procedure. Without in any way denigrating either the importance or
the impact of Apprendi, that decision cannot plausibly be said to
have altered the commonly accepted understanding of the bedrock
procedural elements of our criminal justice system. Accord United
States v. Sanders, 247 F.3d 139, 150 (4th Cir. 2001) (rejecting the
notion that, pre-Apprendi, "the country's criminal justice system
malfunctioned . . . fundamentally"). Watershed rules affecting
bedrock procedural elements are few and far between. The
quintessential example of such a rule — the only example
specifically mentioned by the Supreme Court — is the landmark
decision in Gideon v. Wainwright, 372 U.S. 335 (1963). The
"sweeping rule of Gideon . . . established an affirmative right to
counsel in all felony cases." O'Dell, 521 U.S. at 167. It
-9-
protected each accused, "though he be not guilty, [from] the danger
of conviction because he does not know how to establish his
innocence." Gideon, 372 U.S. at 345 (citation omitted). This
pronouncement — that representation by counsel is fundamental to a
fair trial — reshaped the legal landscape and dramatically revised
the common understanding of what the Due Process Clause demands in
a criminal case.
Other concrete examples of watershed rules are hen's-
teeth rare. See Graham, 506 U.S. at 478 ("[W]e operate from the
premise that such procedures would be so central to an accurate
determination of innocence or guilt [that] it [is] unlikely that
many such components of basic due process have yet to emerge.").
One reason for this phenomenon is that the Supreme Court has
exhibited reluctance to showcase prototypes of rules that might
enjoy this venerated status. That is understandable because the
Teague exception "is clearly meant to apply only to a small core of
rules requiring observance of those procedures that are implicit in
the concept of ordered liberty." O'Dell, 521 U.S. at 157.
Apprendi is not within this small core of cases. The
rule that it announces merely assures a previously convicted
defendant that increased punishment, over and above the default
statutory maximum, can only be imposed if the factual predicate for
the increase — other than a prior criminal conviction — is
confirmed by a jury to a higher quantum of proof. See Apprendi,
-10-
530 U.S. at 484 ("If a defendant faces punishment beyond that
provided by statute when an offense is committed under certain
circumstances but not others, . . . it necessarily follows that the
defendant should not . . . be deprived of protections that have,
until that point, unquestionably attached.") (emphasis supplied).
Although the Apprendi rule is important as a means of clarifying
the proper factfinding roles of judge and jury, it affords an
innocent defendant no additional shield from wrongful conviction.
Refined to bare essence, the rule "merely limits the potential
penalty to be imposed on [an undoubtedly] guilty defendant" to that
designated by statute. Goode, 305 F.3d at 385.
In sum, "a decision . . . by a judge (on the
preponderance standard) rather than a jury (on the reasonable-doubt
standard) is not the sort of error that necessarily undermines the
fairness . . . of judicial proceedings." Curtis, 294 F.3d at 843.
Applying Apprendi's procedural mandate retroactively would create
an unacceptably high risk that those found guilty of criminal
conduct might escape condign sentences. Hence, we join every court
of appeals that thus far has decided the question and hold that the
Apprendi rule fails to qualify as a watershed rule within the
meaning of the second Teague exception. See Coleman v. United
States, ___ F.3d ___, ___ (2d Cir. 2003) [2003 WL 21019559, at
*10]; Goode, 305 F.3d at 382-85; United States v. Brown, 305 F.3d
304, 307-10 (5th Cir. 2002) (per curiam); Curtis, 294 F.3d at 843-
-11-
44; United States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir. 2002);
Sanchez-Cervantes, 282 F.3d at 667; McCoy, 266 F.3d at 1257-58;
United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001); Sanders,
247 F.3d at 151.
In an effort to turn aside the combined force of
reasoning and precedent, the petitioner offers several diversions.
None is persuasive, but three of his sallies merit brief comment.
In the first place, the petitioner emphasizes that no
less an authority than Justice O'Connor has characterized the
majority opinion in Apprendi as one that announces "a watershed
change in constitutional law." Apprendi, 530 U.S. at 524
(O'Connor, J. dissenting). The petitioner's reliance on this
statement demonstrates the verity that a single word often has the
capacity to convey multiple shades of meaning. See Hanover Ins.
Co. v. United States, 880 F.2d 1503, 1504 (1st Cir. 1989)
(explaining that "words can be like chameleons, which reflect the
color of their environment") (citation and internal quotation marks
omitted). Justice O'Connor warned that "the most significant
impact of the Court's decision" in Apprendi was that it
"threaten[ed] to unleash a flood of petitions by convicted felons
seeking to invalidate their sentences." 530 U.S. at 550-51. Her
concern was "a practical one," prompting her to chastise the
majority for "not say[ing] whether [determinate-sentencing] schemes
are constitutional." Id. at 550. She did not advert to Teague,
-12-
and her use of the word "watershed," taken in this context, cannot
plausibly be interpreted as a definitive conclusion that she — or
anyone else — would hold the Apprendi rule to be a watershed rule
for Teague purposes.
Next, the petitioner posits that the Apprendi rule is not
strictly a rule of criminal procedure, but, rather, possesses a
substantive component, requiring those facts that warrant sentence
enhancement to be considered elements of an aggravated crime. This
formulation contains more cry than wool.
The Apprendi decision is about criminal procedure, pure
and simple. Accord Curtis, 294 F.3d at 843. Long before the Court
decided Apprendi, basic principles of criminal and constitutional
jurisprudence protected defendants from being convicted on less
than proof beyond a reasonable doubt of each and every element of
a charged crime. See In re Winship, 397 U.S. 358, 364 (1970)
(holding that "the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the [charged] crime").
Notwithstanding the prevalence of this principle, courts routinely
approved the practice of enhancing sentences based on a judge's
factual determinations. See, e.g., United States v. Thomas, 204
F.3d 381, 383 (2d Cir. 2000); United States v. Grimaldo, 214 F.3d
967, 974-75 (8th Cir. 2000); United States v. Lindia, 82 F.3d 1154,
1160-61 (1st Cir. 1996). The Apprendi rule limited that widespread
-13-
practice.3 The fact that the Apprendi rule implements certain
underlying constitutional protections makes it no less a rule of
criminal procedure. See Sanders, 247 F.3d at 151. The Supreme
Court has instructed us that the "distinction between substance and
procedure is an important one in the habeas context," Bousley v.
United States, 523 U.S. 614, 620 (1998), and we cannot disregard
that distinction in applying the Teague screen.
In the last analysis, "[t]he Teague doctrine is founded
on the notion that one of the principal functions of habeas corpus
is to assure that no man has been incarcerated under a procedure
which creates an impermissibly large risk that the innocent will be
convicted." Id. (internal quotation marks and alterations
omitted). Pre-Apprendi practice, though incorrect, created no such
risk. While the Apprendi rule may improve the correlation between
crime and punishment in future prosecutions, it does not render the
correlation for past convictions completely (or even seriously)
unreliable. Thus, the procedure required by Apprendi has the
capacity to improve substance — but it is not substance in and of
itself.
The petitioner's third line of attack attempts to compare
Apprendi to the Supreme Court decisions in Bailey v. United States,
3
We say "limited" rather than "abolished" because, even after
Apprendi, it remains constitutionally permissible for judges to
make a wide variety of sentence-enhancing factual determinations
under the preponderance standard. See, e.g., Robinson, 241 F.3d at
122; Caba, 241 F.3d at 101.
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516 U.S. 137 (1995), and Richardson v. United States, 526 U.S. 813
(1999). Based on these comparisons, the petitioner asserts that
the rationale for applying the Bailey and Richardson doctrines
retroactively supports giving Apprendi retroactive effect. We
reject this attempted analogy for the most basic of reasons: the
cases are not fair congeners.
Bailey involved a determination of what conduct Congress
criminalized in enacting 18 U.S.C. § 924(c)(1). The Bailey Court
determined that "possession" was not "use" and vacated the
defendant's conviction. 516 U.S. at 143. Because Bailey involved
substance, not procedure, the decision provides no guidance for a
Teague analysis. See Bousley, 523 U.S. at 620 ("[B]ecause Teague
by its terms applies only to procedural rules, we think it is
inapplicable to the situation in which this Court decides the
meaning of a criminal statute enacted by Congress.").
Richardson is not quite so far afield. That case
involved both the interpretation of a criminal statute and the
procedural safeguards attendant to a defendant's right to have a
jury make factual findings leading to conviction thereunder.
Richardson, 526 U.S. at 816. Although the latter half of this
hybrid bears some similarities to Apprendi, the first half strays
from Apprendi in so material a way as to undermine the attempted
analogy.
-15-
The core holding in Richardson required jury unanimity as
to each "violation" in the "series of violations" needed to convict
under the continuing criminal enterprise (CCE) statute, 21 U.S.C.
§ 848. See Richardson, 526 U.S. at 818-19. Jury discordance as to
the identity of the individual violations that comprised the
necessary series would threaten the accuracy of any conviction for
violating the CCE statute, a factor that makes retroactive
application of Richardson more appropriate under a Teague
analysis.4 Apprendi errors pose no such threat. Thus, we find the
petitioner's comparison of Apprendi to Richardson to be like
comparing a plum to a pomegranate.
That ends this aspect of the matter. We hold, without
serious question, that Apprendi prescribes a new rule of criminal
procedure, and that Teague does not permit inferior federal courts
to apply the Apprendi rule retroactively to cases on collateral
review.
B. The Effect of the AEDPA.
This conclusion does not mark the end of our odyssey.
The petitioner contends in the alternative that a Teague analysis
4
This case does not require us to announce a holding as to the
retroactive effect of Richardson, and we leave that question for
another day. We engage in the discussion only to distinguish the
rationale that may have led other courts to hold Richardson
retroactively applicable to cases pending on collateral review.
See, e.g., Santana-Madera v. United States, 260 F.3d 133, 138-39
(2d Cir. 2001); United States v. Lopez, 248 F.3d 427, 432 (5th Cir.
2001); Lanier v. United States, 220 F.3d 833, 838 (7th Cir. 2000);
Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000).
-16-
is unnecessary. This contention rests on the premise that the
AEDPA evinces Congress's intent to displace the Teague doctrine in
the context of initial section 2255 petitions filed within one year
of the date upon which a conviction becomes final.
The petitioner's premise derives, in the first instance,
from an AEDPA provision governing, inter alia, federal prisoners'
initial applications for habeas relief under section 2255. Section
2255 consists of a narrative series of unnumbered paragraphs, but
for ease in reference we cite to the paragraphs by artificially
imposed symbol and number. The provision on which the petitioner's
premise depends reads in pertinent part:
A 1-year period of limitation shall apply to a
motion under [section 2255]. The limitation
period shall run from the latest of —
(1) the date on which the
judgment of conviction becomes
final;
(2) the date on which the
impediment to making a motion
created by the 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
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discovered through the exercise
of due diligence.
28 U.S.C. § 2255 ¶6. The petitioner argues that ¶6(1) allows a
federal habeas petitioner to file an initial application for post-
conviction relief based on a new rule of criminal procedure
regardless of when the new rule was announced as long as the
application is filed within one year of the date on which the
judgment of conviction becomes final. In his view, this
interpretation — which eliminates the need for any retroactivity
analysis — is legitimized by contrasting the differing language of
¶6(1) with that of ¶6(3), which embodies a specific standard for
when new rules may be given retroactive effect in connection with
petitions for section 2255 relief filed more than one year after a
final judgment of conviction. This is an imaginative exercise in
legal legerdemain, but not a convincing one.
In discerning the meaning of the words that Congress
wrote, an inquiring court invariably must start with the statutory
text. United States v. Charles George Trucking Co., 823 F.2d 685,
688 (1st Cir. 1987). In parsing that text, "we will not depart
from, or otherwise embellish, the language of a statute absent
either undeniable textual ambiguity or some other extraordinary
consideration, such as the prospect of yielding a patently absurd
result." Pritzker v. Yari, 42 F.3d 53, 67-68 (1st Cir. 1994)
(citations omitted). The commonsense corollary of these principles
is that statutory language can only be ascribed meaning if taken in
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context. United States v. Ahlers, 305 F.3d 54, 57-58 (1st Cir.
2002). Part of that context is the presumption that, in the
ordinary case, "Congress expects its statutes to be read in
conformity with [the Supreme] Court's precedents." Clay, 123 S.
Ct. at 1076.
Viewed through this prism, we find nothing in ¶6
sufficient to overturn the general bar against retroactive
application of new rules of criminal procedure set forth in Teague.
In terms, ¶6 deals strictly and solely with the temporal
limitations for filing section 2255 petitions. See Brown, 305 F.3d
at 307. The prefatory language and structure of ¶6 reveal an
obvious legislative intent to place a one-year limitation period on
federal habeas claims that arise under different circumstances.
See Derman, 298 F.3d at 40 ("In [the AEDPA], Congress for the first
time established time limits applicable to the filing of habeas
petitions: a prisoner (state or federal) has one year from [a
certain] date . . . within which to seek federal habeas relief.").
The succeeding subsections of ¶6 implement and embellish
this intent. The baseline rule is contained in ¶6(1). This
subsection unambiguously obligates a federal prisoner to bring all
habeas claims that are extant at the time of final judgment within
one year. See 28 U.S.C. § 2255 ¶1 (authorizing a federal prisoner
to seek review of a sentence that "was imposed in violation [of the
law] . . . , or is otherwise subject to collateral attack")
-19-
(emphasis supplied). If sentence was imposed consistent with then-
prevailing law and that sentence is not otherwise subject to
collateral attack, the prisoner has no claim to bring under section
2255.
Notwithstanding this baseline rule, ¶6(3) holds out the
possibility that a change in the prevailing law may make a
petitioner's conviction susceptible to collateral review in the
future. Thus, if the Supreme Court later announces a new rule that
arguably has retroactive application to the conviction, the date of
that decision marks the accrual of a new habeas claim. Under that
paradigm, ¶6(3) provides a further one-year limitation period
within which the petitioner may bring his newborn claim.5
Analytically, then, the different sub-parts that constitute ¶6 deal
with different starting points for the running of the limitation
period. There is no substantive language in ¶6 that realistically
can be viewed as displacing the wonted application of the Teague
doctrine to federal habeas claims. See Goode, 305 F.3d at 384;
Brown, 305 F.3d at 307; Mora, 293 F.3d at 1218.
5
The courts are divided as to whether the incremental one-year
period runs from the date of the Supreme Court's announcement of
the new rule or from the date that the new rule is first declared
to be retroactive. Compare Triestman v. United States, 124 F.3d
361, 371 & n.13 (2d Cir. 1997) (adopting former interpretation),
with Ashley v. United States, 266 F.3d 671, 673 (7th Cir. 2001)
(adopting latter interpretation). Because the Apprendi rule does
not have retroactive application, see supra Part II(A), we have no
need to choose between these conflicting views.
-20-
The petitioner has another string to his statutory
construction bow. He adverts to a variety of other provisions
within the realm of federal habeas law and notes that they are
worded differently than 28 U.S.C. § 2255 ¶6. See 28 U.S.C. §
2254(d) (imposing restrictions on state prisoners' habeas claims);
id. § 2255 ¶8 (imposing restrictions on federal prisoners' second
or successive habeas petitions). Invoking the hoary tenet that
"where Congress includes particular language in one section of a
statute but omits it in another . . . it is generally presumed that
Congress acted intentionally," Duncan v. Walker, 533 U.S. 167, 173
(2001), he asserts that we should interpret those provisions that
do not contain a specific directive about how to apply new Supreme
Court rules retroactively — such as ¶6(1) — as negating any such
requirement (and, to that extent, rendering Teague obsolete). This
argument lacks force.
As the petitioner notes, the language of these provisions
differs from the language of 28 U.S.C. § 2255 ¶6(3). But the
provisions that the petitioner cites impose different substantive
rules on the retroactivity analysis to be employed. For that
reason, the canon of construction on which the petitioner relies
furnishes no sound basis for concluding that because ¶6(1) is
silent as to retroactivity, anything goes.6 The logical reading —
6
Such an interpretation would lead to problematic results.
Under it, a defendant whose conviction became final 364 days before
the Supreme Court announced a new rule that fell outside the Teague
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and the one that we endorse — is that retroactivity is not
mentioned in ¶6(1) because the impact of new rules announced after
final judgment is covered in ¶6(3). We explain briefly.
Every provision of federal habeas law is subject to
Teague's doctrinal reach. See Clay, 123 S. Ct. at 1076. The
changed phraseology of section 2254(d) and 2255 ¶8 evinces a
congressional intent to increase the burden of certain habeas
petitioners above and beyond the baseline demonstration that a case
"has been . . . made retroactively applicable to cases on
collateral review." 28 U.S.C. § 2255 ¶6(3). Accordingly, 28
U.S.C. § 2255 ¶8 restricts second or successive habeas petitions
challenging federal convictions to those new rules of
constitutional law explicitly made retroactive by the Supreme Court
itself to cases on collateral review. See Tyler, 533 U.S. at 662
(holding that the identically worded requirement contained in 28
U.S.C. § 2244(b)(2)(A) is "satisfied only if [the Supreme] Court
has held that the new rule is retroactively applicable to cases on
collateral review"). The restrictive language of ¶8 plainly
reflects congressional intent to limit the reach of Teague and to
exceptions would have a single day in which to file a habeas
petition based on that rule, whereas an identically situated
defendant whose conviction became final one day prior to the same
announcement would have almost a full year to take advantage of the
new rule. It confounds rational thinking to conclude that Congress
intended a habeas petitioner's filing period to depend on so
arbitrary a linkage.
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exact a more stringent retroactivity requirement for second or
successive habeas petitions. Id.
Like 28 U.S.C. § 2255 ¶6, 28 U.S.C. § 2254(d) applies to
initial applications for post-conviction relief. Unlike section
2255, however, section 2254 relates to state prisoners. It
requires such petitioners to bear a different burden; they must
demonstrate that the state court's adjudication of the claim
"resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1). That standard reflects congressional concern that,
in the interests of comity, federal courts should defer to
reasonable state-court judgments anent state prisoners — even when
those judgments are arguably erroneous. See Williams v. Taylor,
529 U.S. 362, 385-86 (2000); Sanna v. Dipaolo, 265 F.3d 1, 7-9 (1st
Cir. 2001).
Thus, by imposing these increased burdens on differently
situated habeas petitioners, sections 2254(d) and 2255 ¶8 function
as two of the AEDPA's gatekeeping provisions. Mora, 293 F.3d at
1218. 28 U.S.C. § 2255 ¶6 serves a different purpose. That
provision, in its entirety, deals exclusively with temporal
limitations for the filing of initial petitions by federal
prisoners. In terms, ¶6(3) does no more than designate a specific
limitation period for filing motions related to new rules or rights
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that pass through the Teague screen. Those that fail under Teague
by definition fail to "appl[y] to cases on collateral review." 28
U.S.C. § 2255 ¶6(3).
That resolves the question regarding Teague's continuing
relevance. The short of it is that Teague remains alive and well,
notwithstanding Congress's enactment of the AEDPA.
III. CONCLUSION
We need go no further.7 To recapitulate, we hold (1)
that the Apprendi rule has no retroactive application to cases in
which the judgment of conviction became final before Apprendi was
decided; and (2) that the passage of the AEDPA does not affect the
wonted application of Teague v. Lane to initial petitions for
habeas relief filed under 28 U.S.C. § 2255.
Affirmed.
7
Because our analysis disposes of the substance of the
petitioner's claims, we need not address the government's other
defenses (including, inter alia, whether the petitioner is
procedurally barred from bringing his claims).
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