United States Court of Appeals
For the First Circuit
No. 99-2128
DAVID SUSTACHE-RIVERA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge, and
Lynch, Circuit Judge.
Christopher R. Goddu, with whom Willcox, Pirozzolo & McCarthy was
on brief, for petitioner.
Michelle Morales, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, were on brief, for respondent.
July 25, 2000
LYNCH, Circuit Judge. In March 1993, a jury convicted
David Sustache-Rivera (Sustache) of three separate carjackings
in violation of 18 U.S.C. § 2119. If a carjacking results in
"serious bodily injury," then the statute allows for a greater
length of imprisonment. The judge found that one of the
carjackings had resulted in serious bodily injury and so imposed
a greater sentence. All told, Sustache was sentenced to thirty-
seven years in prison for the crimes.1 He was twenty years old
at the time. His convictions were affirmed on appeal. See
United States v. Sustache-Rivera, 39 F.3d 1166 (1st Cir. 1994)
(unpublished). Sustache's first habeas petition under 28 U.S.C.
§ 2255 was dismissed by the district court.2 He now requests a
certificate of appealability from this court so that he may file
1 Sustache was sentenced to two 12-year terms of imprisonment
for the other two carjackings, to be served concurrently with each
other but consecutively to the 25-year term. What is at stake in this
case are the additional years of Sustache's federal sentence for the
third carjacking.
2 Section 2255 uses the term "motion" rather than the term
"petition." We use the term "petition" throughout this opinion,
though, as it is more commonly used to describe the process by which a
prisoner seeks post-conviction relief. See Pratt v. United States, 129
F.3d 54, 56 n.1 (1st Cir. 1997).
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a second § 2255 petition. We decline to issue the certificate
and dismiss the case.
I.
Sustache was charged with three separate carjackings
under 18 U.S.C. § 2119. One of the counts specifically charged
Sustache under 18 U.S.C. § 2119(2) -- the subsection that allows
a longer sentence if the carjacking results in serious bodily
injury -- and detailed the injuries one of the victims, Dr. José
Aurelio Dávila-Sánchez, received as a result of being shot three
times. At trial, Dávila-Sánchez's brother, José Miguel
Betancourt-Sánchez, who was with Dávila-Sánchez during the
carjacking, testified regarding the injuries they received.
According to his testimony, both men had been shot at many
times. After an initial wave of gunfire, Dávila-Sánchez was
left bleeding and asking to be taken to the hospital. Then came
a second wave of gunfire, during which Betancourt-Sánchez
attempted to protect his brother from further injury; but both
were shot, one bullet penetrating Betancourt-Sánchez and then
entering his brother's stomach. The Pre-Sentence Report
revealed that, as a result of his wounds, Dávila-Sánchez's leg
had to be amputated and he lost the use of his left hand.
-3-
The question of whether serious bodily injury occurred
in the carjacking was not submitted to the jury, but was decided
by the judge at sentencing. At the time of Sustache's trial and
direct appeal, the law of this circuit was silent as to whether
the question of serious bodily injury was an element of the
crime to be determined by a jury or was merely a sentencing
enhancement to be determined by the judge. We later held that
the occurrence of serious bodily injury was merely a sentencing
enhancement. See United States v. Rivera-Gomez, 67 F.3d 993,
1000 (1st Cir. 1995). Other circuits that had decided the
question shared this view. See, e.g., United States v. Oliver,
60 F.3d 547, 552 (9th Cir. 1995); United States v. Williams, 51
F.3d 1004, 1009 (11th Cir. 1995). The Supreme Court, however,
held in Jones v. United States, 526 U.S. 227, 251-52 (1999),
that the serious bodily injury requirement in 18 U.S.C. §
2119(2) is an element of a carjacking offense and so must be
submitted to the jury.
Sustache, naturally, now wants to raise the claim that
his sentence should be vacated because the judge, not the jury,
determined the serious bodily injury element. The claim
concerns not only who should have decided the matter, but also
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what the government's burden of proof should have been. An
element of a crime must be proven by the government beyond a
reasonable doubt. See id. at 232. By contrast, sentencing
enhancements are decided upon a preponderance of the evidence.
See United States v. Lombard, 72 F.3d 170, 176 (1st Cir. 1995).
The question here is whether Sustache has a vehicle to
raise the claim pursuant to 28 U.S.C. § 2255, either as a first
petition, or by permission of this court as a second or
successive petition or a petition falling within the section's
savings clause.3 Congress imposed a number of bars to federal
3 The procedural posture in which the question comes to us is
dictated by AEDPA, the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. Law No. 104-132, 110 Stat. 1214. This court
initially denied Sustache's application for leave to file a successive
§ 2255 petition, but required briefing on two issues:
1. Under what conditions, if any, does an intervening
Supreme Court decision, which changes the substantive law
under which a petitioner has been convicted, render the
remedy afforded by 28 U.S.C. § 2255 "inadequate or
ineffective" for a successive habeas petitioner? If such
conditions exist, what alternate remedies are available?
See Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999).
2. Has the Supreme Court decision in Jones v. United
States, 119 S. Ct. 1215 (1999), rendered the remedy afforded
petitioner Sustache Rivera "inadequate or ineffective," and,
if so, what alternate remedies are available to him?
In addition, we gave the parties the opportunity, which each took, to
brief this question:
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prisoners' efforts to obtain post-conviction relief when it
enacted AEDPA, the Antiterrorism and Effective Death Penalty Act
of 1996, Pub. Law No. 104-132, 110 Stat. 1214, which governs
this petition. Counting literally, this is Sustache's second
§ 2255 petition. Sustache filed a pro se petition under § 2255
in 1997 that raised a claim of ineffective assistance of counsel
but did not raise the Jones claim.4 That petition was dismissed
on its merits by the district court. Sustache's current attempt
to correct the error that occurred at his trial is limited by
AEDPA. AEDPA § 105 amended 28 U.S.C. § 2255 so that "second or
successive" § 2255 petitions will not be heard unless the court
of appeals grants leave to file the petition. See 28 U.S.C. §§
2255, 2244(b)(3). The court may not grant such leave unless the
petition is based on:
a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable.5
3. Under the circumstances, is this a second or successive
petition?
4 At the time of Sustache's 1997 pro se § 2255 petition, our
decision in Rivera-Gomez foreclosed any Jones argument.
5 The court may also grant leave to file a second or successive
petition based upon "newly discovered evidence," 28 U.S.C. § 2255, but
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28 U.S.C. § 2255.
Sustache's efforts to apply the new Jones rule are thus
stymied unless: (1) this petition is considered to be a first
petition; or (2) he meets the gatekeeping requirements for
second or successive petitions; or (3) his claim fits within §
2255's savings clause for cases in which § 2255 provides an
"inadequate or ineffective" remedy.6
II.
Sustache asserts that this petition should be
considered a first petition because the new Jones rule was not
available to him earlier. Treating this petition as a first
petition has both substantive and procedural advantages for him.
Substantively, if this were a first petition, he could raise a
claim that his sentence "was imposed in violation of the laws of
the United States." 28 U.S.C. § 2255. In other words, he would
not be restricted to constitutional claims. Procedurally, he
would not need permission from this court to file such a claim.
Sustache makes no claim that his petition is so based.
6 28 U.S.C. § 2255 reads, in pertinent part: "An application
for a writ of habeas corpus in behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this section, shall not be
entertained . . . unless it . . . appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention."
-7-
We also consider whether, assuming Sustache's petition
should be treated as a second or successive § 2255 petition, his
petition meets the requirements for such petitions in light of
the Supreme Court's recent decision in Apprendi v. New Jersey,
No. 99-478, 2000 WL 807189 (U.S. June 26, 2000), issued after
oral argument in this case.
Sustache's final argument is that his claim fits within
the savings clause of § 2255. If a petitioner's § 2255 remedy
is inadequate or ineffective, then he may apply for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, the general habeas
corpus statute. See 28 U.S.C. § 2255. Recognizing the danger
that the exception could easily swallow the rule and frustrate
Congress' purpose in enacting AEDPA, the courts of appeals have
read this exception narrowly. Nonetheless, Sustache says that
fairness demands he at least be given the opportunity to present
his claims and that, therefore, his claim should be found to fit
within the savings clause. Otherwise, he says, § 2255 leaves
him trapped in a procedural morass: even though Jones now makes
clear that the trial court erred (resulting, he says, in a
longer prison sentence), he cannot correct this error merely
because he failed to raise it in his first § 2255 petition, at
-8-
a time when he had no reason to anticipate Jones.
Because this area is a procedural maze for parties and
courts, an outline of our holdings in this case may be helpful:
1. We are not inclined to view Sustache's petition as
a first petition. Even if it were, it would fail for the
reasons stated below.
2. Sustache's petition does not meet the gatekeeping
requirements of § 2255 for second or successive petitions; this
is so even if Jones does represent a new rule of constitutional
law, because the Supreme Court has not made Jones retroactive to
cases on collateral review.
3. Whether Sustache's petition falls within § 2255's
savings clause is a matter we need not resolve.
4. Because Sustache did not present the Jones claim
before, he must show cause and prejudice to present it now, and
Sustache has no plausible claim of prejudice.
A. Is This a First or a "Second or Successive" Petition?
Sustache concedes that his petition is literally
second, but says that an exception should be carved out for
claims that could not reasonably have been presented earlier.
Not every literally second or successive § 2255
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petition is second or successive for purposes of AEDPA. See
Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998). The
Supreme Court and this court have outlined several situations in
which a later petition is not "second or successive:" (1) where
the later petition raises the same grounds as a previous
petition that had been dismissed as premature, see id.; (2)
where a state prisoner's later petition raises the same grounds
as a previous petition that had been dismissed for failure to
exhaust state remedies, see Slack v. McDaniel, 120 S. Ct. 1595,
1604-05 (2000); Dickinson v. Maine, 101 F.3d 791 (1st Cir.
1996); (3) where the earlier petition terminated without a
judgment on the merits, see Pratt v. United States, 129 F.3d 54,
60 (1st Cir. 1997); or (4) where the later petition attacks a
different criminal judgment, such as where a prisoner who has
successfully brought a first habeas claim is retried,
reconvicted, and resentenced and then attacks the new judgment,
see Pratt, 129 F.3d at 62; see also Shepeck v. United States,
150 F.3d 800, 801 (7th Cir. 1998) (later petition presenting
issues that were unripe until re-sentencing that resulted from
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first petition not second or successive).7 The first three
exceptions involve nominally successive petitions that are
really extensions of original petitions that, for technical or
prematurity reasons, were not addressed on the merits. The
fourth exception is for a petition attacking an entirely
different criminal judgment than was attacked in the first
petition.
Sustache contends that another exception should be
carved out where the prisoner could not reasonably have
presented his claim in an earlier petition. More precisely,
Sustache argues that a § 2255 petition should not be treated as
second or successive where a facially meritorious basis for
relief becomes available for the first time -- due to a change
in law -- after a previous § 2255 petition has already been
filed and litigated. Some support for this position might be
thought to come from this court's language in Pratt, where we
noted, "As a general rule, a prisoner who had both the incentive
7 Other circuits have created at least two other exceptions:
(1) where the earlier petition was rejected for failure to pay a filing
fee or for errors of form; and (2) where the earlier petition was
mislabeled as a § 2255 but was really a § 2241 petition challenging the
execution, but not the validity, of the sentence. See United States v.
Barrett, 178 F.3d 34, 43 (1st Cir. 1999) (collecting cases).
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and the ability to raise a particular claim in his first
petition for post-conviction relief, but declined to assert it,
cannot raise it the second time around." Pratt, 129 F.3d at 62.
Yet, from this language it does not follow that a prisoner who
lacked the incentive or ability to raise a particular claim in
his first petition, and so declined to assert it, necessarily
may raise it the second time around -- the gist of Sustache's
position.8
A similar argument for Sustache's position might be
constructed from our decision in United States v. Barrett, 178
F.3d 34 (1st Cir. 1999), where we held that
as a general matter, if a petition falls under the
modified res judicata rule known as the abuse of the
writ doctrine -- because, for example, it raises a
claim that could have been properly raised and decided
in a previous § 2255 petition -- it also falls within
the definition of "second or successive."
8 Moreover, the language in Pratt occurs in the context
of a petition brought after the prisoner had successfully
brought an initial petition and was retried, reconvicted, and
resentenced. See Pratt, 129 F.3d at 62. The court in Pratt
went on to state that while the prisoner could collaterally
attack the new judgment, he "customarily cannot re-petition
after resentencing based on alleged errors affecting the
underlying conviction." Id.
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Id. at 45. Yet again, from this language it does not follow
that a petition is not second or successive simply because it
does not violate the old abuse of the writ doctrine. Indeed
such a rule would run counter to congressional intent. If a
later petition's status pivoted solely on the old abuse of the
writ doctrine, then AEDPA's restrictions would lower, rather
than raise, the successive petition threshold. "We are
cognizant that if we were to perform a 'cause and
prejudice'/'actual innocence' analysis of every second or
successive petition under § 2255, we would be undermining the
clear intent of Congress that stricter standards apply under
AEDPA and that the pre-clearance process be streamlined."
Barrett, 178 F.3d at 48 n.8. Moreover, "[t]he [AEDPA]
requirements themselves take for granted that some newly
available claims will be found in 'second or successive'
petitions (for instance, 'a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable.')" Id. at 45 n.5 (citations
omitted). Further, the courts of appeals have routinely treated
as second or successive claims alleged to be "new" due to the
Supreme Court's changing the law. See, e.g., In re Davenport,
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147 F.3d 605, 610 (7th Cir. 1998) (regarding numerically
successive § 2255 petition based upon new Supreme Court decision
that changed the law as "second or successive"); Triestman v.
United States, 124 F.3d 361, 367-70 (2nd Cir. 1997) (same); In
re Dorsainvil, 119 F.3d 245, 247-48 (3rd Cir. 1997) (same).
Sustache's argument may amount to nothing more than an
assertion that this petition should be treated as a first
petition because he could meet the "cause" requirement, both
before and after AEDPA, to excuse a procedural default. See
Bousley, 523 U.S. 614, 622 (1998). It is true that the courts'
have refused to read the term "second or successive" literally.
Additionally, Sustache's position avoids some sense of
unfairness, and the Supreme Court has not yet ruled on it. In
any event, although we think the argument questionable, we do
not decide the issue, but only note that the premise of
Sustache's argument -- that he lacked reasonable opportunity to
argue that serious bodily injury was an element of the crime --
is itself a difficult question.9 More significantly, as we
9 This "cause" question is complicated, and we need not decide
it. It is primarily complicated by Bousley's stringent requirements.
Bousley had filed a first § 2255 petition seeking to benefit from
Bailey v. United States, 516 U.S. 137 (1995), a decision that narrowed
the definition of "use" in 18 U.S.C. § 924(c)(1)(A), the statute
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explain below, whether Sustache's petition is treated as a first
petition or as a second or successive petition makes no
difference for other reasons.
B. Does The Petition Satisfy The Requirements for Second or
Successive Petitions?
The Jones opinion explained that it rested on
statutory, not constitutional, interpretation. See Jones, 526
U.S. at 251 n.11. Accordingly, Sustache's Jones argument would
not appear to rest upon "a new rule of constitutional law," and
so it would not appear to fit within § 2255's exception for
second petitions.
However, the question of whether Sustache's claim fits
within § 2255's exception changes complexion with the Supreme
criminalizing use of a firearm in the commission of a federal crime.
See Bousley, 523 U.S. at 616-18. The Supreme Court held that Bousley
could not show cause for having failed to raise the Bailey claim on
direct appeal (before the Supreme Court had decided Bailey) merely
because existing circuit precedent at the time would have made it
futile to do so. See Bousley, 523 U.S. at 623 (stating that "futility
cannot constitute cause if it means simply that a claim was
unacceptable to that particular court at that particular time")
(internal quotation marks and citation omitted). Sustache was not
foreclosed by circuit precedent from making the Jones argument at trial
or on direct appeal, although he was foreclosed at the time of his
first § 2255 petition. It may be that Bousley is distinguishable,
though, as Sustache's case presents the additional issue of lack of
incentive. Unlike petitioners raising Bailey claims, it is far from
clear that Sustache had an incentive to argue at trial or on direct
appeal that the evidence of serious bodily injury should have been
presented to (as opposed to withheld from) the jury.
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Court's recent decision in Apprendi. Apprendi, involving a
direct appeal from a state conviction, held that the
Constitution requires that any fact that increases the penalty
for a crime beyond the prescribed statutory maximum, other than
the fact of prior conviction, must be submitted to the jury and
proved beyond a reasonable doubt. See Apprendi, 2000 WL 807189
at *13. The Court said that its constitutional holding was
foreshadowed by Jones, which construed a federal statute. See
Apprendi, 2000 WL 807189 at *7. Significantly for our purposes,
the Court also said, referring to the Jones decision:
We there noted that under the Due Process Clause of
the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment, any fact (other
than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable
doubt. The Fourteenth Amendment commands the same
answer in this case involving a state statute.
Apprendi, 2000 WL 807189 at *7 (internal quotation marks and
citation omitted). 10 Thus, Apprendi now gives Sustache an
argument that Jones, while decided as a matter of statutory
10 As is evident from Justice O'Connor's dissent, the meaning
and scope of the Jones/Apprendi rule is unclear. See Apprendi, 2000 WL
807189 at *31 (O'Connor, J, dissenting). Because the Apprendi majority
referred to the Jones rule as an example of its new constitutional
rule, see Apprendi, 2000 WL 807189 at *13, we do the same.
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interpretation, is presently viewed by a majority of the Supreme
Court as a constitutionally compelled rule. The next inquiry
then, is (1) whether Sustache's petition is "based on a new rule
of constitutional law" that (2) has been "made retroactive to
cases on collateral review by the Supreme Court" and (3) was
"previously unavailable." 28 U.S.C. § 2255; see Pratt 129 F.3d
at 57.
In judging whether to permit the filing of a second
petition, the court of appeals, as gatekeeper, does not
definitively decide these issues. Rather, under Slack, 120 S.
Ct. at 1603-04, the precise question is whether "jurists of
reason" would find each of these points "debatable." If so,
then this court should grant permission to file a second or
successive petition. Jurists of reason could find that the
Jones claim is, post-Apprendi, "based on a new rule of
constitutional law." However, it is clear that the Supreme
Court has not made the rule retroactive to cases on collateral
review. See In re Vial, 115 F.3d 1192, 1197 (4th Cir. 1997)
("[A] new rule of constitutional law has been 'made retroactive
to cases on collateral review by the Supreme Court' within the
meaning of § 2255 only when the Supreme Court declares the
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collateral availability of the rule in question, either by
explicitly so stating or by applying the rule in a collateral
proceeding.") (quoting 28 U.S.C. § 2255). And so, Sustache's
claim does not meet the requirements for a second or successive
petition.11
C. Savings Clause Under § 2255
The question remains whether § 2255's savings clause
applies to allow Sustache to pursue a remedy under traditional
habeas corpus pursuant to 28 U.S.C. § 2241. The savings clause
applies if "the remedy [under § 2255] is inadequate or
ineffective to test the legality of [a petitioner's] detention."
28 U.S.C. § 2255. Only then may a § 2241 petition be filed that
challenges the legality of a conviction or a sentence. See 28
U.S.C. §§ 2255, 2244(a). Whether the savings clause applies
here raises a series of issues.
One procedural issue is whether a petitioner can avoid
the gatekeeping function of the courts of appeals by simply
11 The Supreme Court may yet hold that the Jones/Apprendi rule
is to be retroactively applied to cases on collateral review. (This
likely depends upon whether the Court considers the Jones/Apprendi rule
procedural or substantive.) Until that time, any second or successive
petition seeking retroactive application of Jones must be considered
premature.
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refiling a § 2241 petition in the custodial district court.
See, e.g., Hernandez v. Campbell, 204 F.3d 861, 866 (9th Cir.
2000) (remanding § 2241 petition where district court had
dismissed petition without determining whether the petition fell
under the savings clause); Hooker v. Sivley, 187 F.3d 680 (5th
Cir. 1999) (noting that the determination whether a petitioner
"may proceed under § 2241 . . . can only be made in the district
where he is incarcerated"). Congress did not speak to this
issue, and there is little caselaw on point.12 We avoid this
12 The caselaw has come from the courts of appeals in the
context of determining when the savings clause should apply,
mainly in the wake of Bailey. Troubled by the specter that the
restrictions on second or successive petitions would prevent prisoners
whose conduct had been rendered non-criminal as a result of Bailey's
narrowing the definition of "use" of a firearm in 18 U.S.C.
§ 924(c)(1), see Bailey, 516 U.S. at 150, four circuits have now
established some standards, sparing to be sure, guiding the application
of § 2255's savings clause. See Wofford, 177 F.3d at 1242-45;
Davenport, 147 F.3d at 610-12; Triestman, 124 F.3d at 373-80;
Dorsainvil, 119 F.3d at 248-52.
This court, in a non-Bailey context, briefly commented on the
"savings clause" issue in Barrett.
A petition under § 2255 cannot become "inadequate or
ineffective," thus permitting the use of § 2241, merely
because a petitioner cannot meet the AEDPA "second or
successive" requirements. Such a result would make
Congress's AEDPA amendment of § 2255 a meaningless gesture.
. . .
Such a reading of the savings clause would also recreate the
serious structural problems that led Congress to enact §
2255 in the first place. . . .
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procedural question because the case has come to us in the
customary posture, and Sustache has asked us to decide whether
the savings clause authorizes him to proceed.
A second problem concerns the meaning of the savings
clause itself. The savings clause has most often been used as
a vehicle to present an argument that, under a Supreme Court
decision overruling the circuit courts as to the meaning of a
statute,13 a prisoner is not guilty within the new meaning
Yet the § 2255 savings clause, which has been interpreted to
avoid constitutional questions about § 2255, must mean
something. . . .
We agree with the [Seventh, Third, and Second circuits] that
habeas corpus relief [under § 2241] remains available for
federal prisoners in limited circumstances.
Barrett, 178 F.3d at 50-52 (citations omitted).
13 In recent memory the Supreme Court has done this in Gaudin
v. United States, 515 U.S. 506 (1995) (holding that materiality is an
element of the offense of making false statement to a government agency
and must be submitted to the jury); Bailey v. United States, 516 U.S.
137 (1995) (narrowing the definition of "use" of a firearm in 18 U.S.C.
§ 924(c)(1)); and Jones. As was true of the Supreme Court's decision
in Jones, the Supreme Court's decision in Bailey overturned the
prevailing view in the circuits regarding the meaning of the term "use"
in a federal criminal statute forbidding the "use" or "carrying" of
certain firearms. See Bailey, 516 U.S. at 144. As a result, a number
of prisoners who had been convicted of "use" of a firearm sought to
overturn their convictions. Those who, by happenstance of timing, were
able to raise the issue on direct appeal or in a first habeas petition
were well positioned to benefit from the decision. But prisoners who,
before Bailey, had filed § 2255 petitions raising other claims found
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attributed to the statute. See, e.g., See Wofford, 177 F.3d at
1242-45; Davenport, 147 F.3d at 610-12; Triestman, 124 F.3d at
373-80; Dorsainvil, 119 F.3d at 248-52. The savings clause has
to be resorted to for such a statutory claim because Congress
restricted second or successive petitions to constitutional
claims. If a Jones claim is purely statutory, then an argument
under the savings clause may be warranted. If, post-Apprendi,
the Jones claim is a constitutional claim, there is less reason
to resort to the savings clause, as Congress permits new
constitutional rule claims to be made on second or successive
petitions provided that the Supreme Court has made the new rule
retroactive (and the claim was not previously available). If
the Supreme Court does not ever make the decision retroactive,
the prisoner is no worse off than before. If the Supreme Court
eventually makes the rule retroactive, the prisoner may at that
time attempt a claim by second or successive § 2255 petition.14
themselves in quandaries similar to that faced by Sustache.
14 This raises the prospect of whether the savings clause might
still play a role in permitting a prisoner to bring an earlier petition
where the Supreme Court has not yet made a decision retroactive to
cases on collateral review but Supreme Court precedent strongly
suggests that it will. There would then be an argument of unfairness
in continuing to imprison the petitioner until the day the Supreme
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Whether the Jones claim is constitutional or statutory is not a
question we need to resolve; nor do we need to resolve the
meaning of the savings clause, as Sustache's claim fails under
a related doctrine, described below.
The last problem here arises from the fact that
Sustache failed to make the Jones argument earlier.
Consequently, whether Sustache's petition is properly treated as
falling under § 2255 or under § 2241, he must show cause and
prejudice for his failure to have previously made the claim. We
know from Bousley that a first § 2255 petition must meet the
cause and prejudice standard if it presents a claim not made
earlier. See Bousley, 523 U.S. at 622. In Brache v. United
States, 165 F.3d 99, 102 (1999), this court declined to limit
Bousley to petitions attacking guilty pleas and applied Bousley
to an attack on a conviction after trial. We also know that the
cause and prejudice standard applies equally to habeas actions
brought under § 2241 and § 2255. See e.g., Moscato v. Federal
Bureau of Prisons, 98 F.3d 757, 761 (3rd Cir. 1996); George v.
Perrill, 62 F.3d 333, 335 (10th Cir. 1995). It would be
Court makes the decision retroactive. We need not address the problem
here.
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anomalous if procedurally defaulted claims falling within the
savings clause of § 2255 did not also have to meet a "cause and
prejudice" standard. It would also be contrary to the
legislative history of § 2255, well laid out in Wofford, 177
F.3d at 1239 ("There was no intent to make the § 2255 remedy any
different in scope from the habeas remedy that had previously
been available . . . .").
D. Cause and Prejudice
The government argues that while it may seem unfair to
deny Sustache a chance to present his claim through some form of
post-conviction petition, it does not matter because he does not
present even a plausible claim of cause and prejudice. In
response, Sustache argues that he has suffered prejudice in that
a judge, not a jury, decided the serious bodily injury issue.
In the end, the government is correct that Sustache has
suffered no cognizable prejudice. The jury heard testimony that
the victims were shot at multiple times during the course of the
carjacking and that both had been hit, one victim in the
abdomen. The testimony was undisputed. Further, the pre-
sentence report explained that a gunshot to the leg resulted in
amputation below the knee.
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Against this factual background, we ask by what
standard the question of prejudice is to be decided. The first
question we consider is whether the error of not submitting the
issue of serious bodily injury to the jury constituted
"structural error." If it did constitute structural error,
there would be per se prejudice, and harmless error analysis, in
whatever form, would not apply. But we think Supreme Court
precedent makes it clear that the error at Sustache's trial was
not structural error.15
In Neder v. United States, 527 U.S. 1 (1999), the Court
held that the omission of an element of a criminal offense from
a jury instruction is not structural error and is, therefore,
subject to harmless error analysis. Neder involved the failure
to submit the element of materiality to the jury in a tax fraud
prosecution. Following Neder, this court, in United States v.
Perez-Montanez, 202 F.3d 434 (1st Cir. 2000), held that a Jones
error, as claimed here, is not in the "special category of
forfeited errors that can be corrected regardless of their
15 The court in Apprendi merely remanded the case for further
proceeding not inconsistent with the opinion. See Apprendi, 2000 WL
807189, at *17. It shed no light on the standards to use to evaluate
the effect of any error.
-24-
effect on the outcome," id. at 442 n.3, as structural errors
were described by the Supreme Court in United States v. Olano,
507 U.S. 725, 734 (1993). Accordingly, in Perez-Montanez, a
case applying Jones on direct appeal where the Jones argument
had not been made at trial, we applied plain error analysis and
rejected the defendant's claim that he was entitled to re-
sentencing.16 See Perez-Montanez, 202 F.3d at 441-43. A recent
decision from the Sixth Circuit appears to agree that harmless
error analysis may be appropriate where the question of serious
bodily injury under 18 U.S.C. § 2119(2) was not submitted to the
jury. In United States v. Jackson, No. 98-4205, 2000 WL 665395
(6th Cir. May 23, 2000), the court vacated a § 2119(2) sentence
and remanded for re-sentencing according to the sentencing
provisions of § 2119(1), but it noted that it was compelled to
16 We are aware of two other courts that, arguably, take a
different view; but one case was decided before Neder, and the other
did not discuss it. In United States v. Matthews, 178 F.3d 295, 301
(5th Cir. 1999), a decision issued just days before Neder, the court
vacated a § 2119(2) sentence and remanded for re-sentencing under
§ 2119(1). The Fourth Circuit has done the same in a case decided
after Neder. See United States v. Rudisill, No. 99-4588, 2000 WL
620314, at *1 (4th Cir. May 15, 2000) (unpublished). Rudisill did not
discuss Neder. Both cases involved convictions in which the
indictments -- unlike the indictments in Perez-Montanez, 202 F.3d at
441, and in Sustache's case -- had not specifically charged the
defendants under § 2119's subsections for carjackings resulting in
serious bodily injury or death. See Rudisill, 2000 WL 620314, at *1;
Matthews, 178 F.3d at 301.
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do so "[i]n the absence of any constitutional harmless error
analysis offered by the government." Id. at *1. Because
"[g]overnment counsel did not seek to advance a constitutional
harmless error analysis, even after [the court] asked about it
at oral argument," the court did not address the issue of
harmless error. Id. at *3.
Hence, harmless error analysis applies to the question
of prejudice in this case. Because this case is on collateral
review -- as opposed to direct review -- we apply the "actual
prejudice" harmless error test described in Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). See Singleton v. United
States, 26 F.3d 233, 236-37 & n.9 (1st Cir. 1994). Accordingly,
we ask whether the government can show that the error did not
have "substantial and injurious effect or influence." Brecht,
507 U.S. at 637 (internal quotation marks and citation omitted);
Singleton, 26 F.3d at 236. Under this test, trial error is
deemed harmless "if it is highly probable that the challenged
action did not affect the judgment." Singleton, 26 F.3d at 237
(internal quotation marks and citation omitted).
On the evidence presented, there is no plausible theory
that the failure to submit the question of serious bodily injury
-26-
to the jury had substantial and injurious effect, or that
Sustache did not receive a fair trial on this point.
The carjacking statute initially adopted the definition
of "serious bodily injury" in 18 U.S.C. § 1365 (which
criminalizes tampering with consumer products).17 As defined in
§ 1365, serious bodily injury means, inter alia, bodily injury
involving "substantial risk of death" or "extreme physical
pain." In this case, as in Perez-Montanez,18 "it is as a
practical matter inconceivable that [the] jury would have
hesitated to find the omitted element beyond a reasonable doubt
-- that [serious bodily injury] resulted from the carjacking."
Perez-Montanez, 202 F.3d at 442; cf. United States v. Johnson-
Dix, 54 F.3d 1295, 1312-13 (7th Cir. 1995) (gunshot wound
resulting in broken leg and two-day hospital stay was "serious
bodily injury" under U.S.S.G. § 1.1B, App. Note 1(j) -- which
includes, inter alia, injury "involving extreme physical pain"
17 The definition of serious bodily injury in the carjacking
statute was later amended in respects not relevant to this opinion.
See Carjacking Correction Act, Pub. Law 104-217, § 2, 110 Stat. 3020
(1996); United States v. Vazquez-Rivera, 135 F.3d 172,174-75 (1st Cir.
1998).
18 In Perez-Montanez, there was uncontroverted testimony
regarding the death of the victim of the crime. See Perez-Montanez,
202 F.3d at 443.
-27-
or "requiring medical intervention"); United States v. Moore,
997 F.2d 30, 37 (5th Cir. 1993) (involving same Guidelines
definition and affirming district court's finding that gunshot
wound to leg that resulted in two-hour emergency room visit was
serious bodily injury); United States v. Fitzgerald, 882 F.2d
397, 398 (9th Cir. 1989) ("'serious bodily injury' clearly
encompasses" gunshot wound to the neck as well as gunshot wounds
to chin and forearm); United States v. Cooper, 812 F.2d 1283,
1288 (10th Cir. 1987) (noting, with regard to a criminal statute
that did not define serious bodily injury, that it was "beyond
dispute" that gunshot wound to the chest that resulted in
lengthy hospital stay was serious bodily injury) (Baldock, J.,
concurring); United States v. Jacobs, 632 F.2d 695, 696-97 (7th
Cir. 1980) (involving same statute and affirming conviction for
assault resulting in serious bodily injury where victim was shot
in the arm).
Sustache has not made a claim of actual innocence; nor
could he do so.19
III.
19 Although Sustache argues that he should be able to proceed
by writ of coram nobis or audita querela, these arguments are weaker
than his savings clause argument. See Barrett, 178 F.3d at 54-57.
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For these reasons we deny the certificate of
appealability under § 2255, conclude that whether or not the
savings clause of § 2255 applies, there is no prejudice, and
dismiss the case. So ordered.
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