United States v. Bellamy

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 16, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,
No. 04-5145
Plaintiff-Appellee,
v. (N.D. of Okla.)
(D.C. Nos. CV-04-303-C and
DARRELL BELLAMY, 00-CR-126-C)

Defendant-Appellant.

ORDER

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

Defendant-Appellant Darrell Bellamy, a federal inmate appearing pro se,

seeks a certificate of appealability (COA) allowing him to appeal the district

court’s order denying relief pursuant to 28 U.S.C. § 2255. *
Bellamy also recently

*
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
filed supplemental authority seeking relief under United States v. Booker, 125 S.

Ct. 738 (2005). Because we agree with the district court that Bellamy has failed

to make a “substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny the COA. We also deny Bellamy’s Booker claims. We

hold that Booker does not apply retroactively to criminal cases that became final

before its effective date of January 12, 2005.

Background

On July 13, 2001, Bellamy was indicted for drug conspiracy in violation of

21 U.S.C. § 846, conspiracy to launder money in violation of 18 U.S.C. § 1956,

engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848, and

criminal forfeiture in violation of 18 U.S.C. § 982. He pled guilty to one count of

drug conspiracy and two counts of conspiracy to launder money. On April 17,

2003, the district court for the Northern District of Oklahoma sentenced Bellamy

to 384 months imprisonment for drug conspiracy and 240 months for conspiracy

to launder money, with the sentences to run concurrently. The judgment was

entered on April 29, 2003. Bellamy did not file a direct appeal with the Tenth

Circuit, but filed a motion pursuant to 28 U.S.C. § 2255, making two claims of

ineffective assistance of counsel and one claim based on the Supreme Court’s

decision in Blakely v. Washington , 124 S. Ct. 2531 (2004). He later filed

supplemental authority seeking relief under Booker.

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 Analysis

I. Ineffective Assistance of Counsel Claims

Bellamy raises two claims of ineffective assistance of counsel. First, he

alleges that in convincing him to enter into the plea agreement, his attorney

inaccurately assured him the government would recommend a 25-year (300

month) prison term. Second, he alleges his attorney failed to challenge factual

allegations used to enhance his sentence.

This court may issue a COA and entertain Bellamy’s appeal only if he

meets the requirements of 28 U.S.C. § 2253(c)(2). To do so, “a petitioner must

show that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell , 537 U.S. 322, 336 (2003) (internal citations omitted). Our role is to

conduct an “overview of the claims in the habeas petition and a general

assessment of their merits.” Id.

To succeed on a claim of ineffective assistance of counsel, Bellamy must

satisfy the well-known standard set forth in Strickland v. Washington , 466 U.S.

668 (1984). Under Strickland , Bellamy must first show his attorney made errors

“so serious that counsel was not functioning as the ‘counsel’ guaranteed the

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defendant by the Sixth Amendment.” Id. at 687. Second, Bellamy must show the

deficient performance prejudiced the defense. Id.

We agree with the district court that Bellamy’s claims do not satisfy the

Strickland test. Regarding his first claim, Bellamy offers no evidence in support

of his allegation that his attorney incorrectly assured him the government would

recommend a shorter prison term than he ultimately received. The government

provided copies of correspondence between Bellamy and his attorney as well as a

sworn affidavit from Bellamy’s attorney, both of which establish the attorney

fully explained to Bellamy that any relief offered by the government would be

dependent on the government’s assessment of the extent of his cooperation, and

any reductions recommended by the government would not be binding on the

court. As the district court explained, Bellamy’s attorney documented each of his

meetings with Bellamy and we find nothing in this record to support Bellamy’s

current accusation.

Bellamy’s second claim is similarly deficient. Bellamy’s attorney furnished

the district court with a letter he sent to Bellamy, in which he informed Bellamy

of the facts the probation officer would rely upon in calculating Bellamy’s

sentence. The attorney specifically warned Bellamy that Bellamy would have to

advise him immediately if there was any credible countervailing evidence to rebut

the presentence report, or if Bellamy wanted to submit the evidence at the time of

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sentencing. The attorney then reviewed the presentence report with Bellamy, and

Bellamy did not suggest any basis upon which to challenge its factual assertions.

In these circumstances, no reasonable jurist could conclude that Bellamy’s

counsel was ineffective under Strickland . Accordingly, Bellamy has failed to

show a denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2), and

we must deny COA.

II. Blakely & Booker Claims

Bellamy argues his sentence is unconstitutional under the Supreme Court’s

recent sentencing decisions, for two reasons. He first argues his sentence violates

Blakely v. Washington, 124 S. Ct. 2531 (2004), because when the district court

calculated his sentence it relied upon allegations made by the government but

neither admitted by Bellamy nor proven beyond a reasonable doubt. In the wake

of the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738

(2005), Bellamy also filed supplemental authority claiming Booker sentencing

error. We conclude that neither Booker nor Blakely is retroactively applicable to

Bellamy’s case.

Generally speaking, a new rule of criminal procedure “will not be

applicable to those cases which have become final before the new rules are

announced.” Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion).

Applying this principle, we have previously determined that Blakely provides a

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new rule of criminal procedure and is not subject to retroactive application on

collateral review. See United States v. Price, 400 F.3d 844 (10th Cir. 2005). In

other words, Blakely does not apply retroactively on collateral review to

convictions that were already “final” at the time the case was decided by the

Supreme Court on June 24, 2004. Id.

The finality requirement of Teague looks to whether the availability of a

direct appeal has been exhausted and whether the time for filing a petition for

certiorari has elapsed. See Teague , 489 U.S. at 295 (explaining the Court has

defined “final” to mean “the judgment of conviction was rendered, the availability

of appeal exhausted, and the time for petition for certiorari had elapsed”) (internal

quotations omitted); Caspari v. Bohlen , 510 U.S. 383, 390 (1994). In this case,

the district court entered its judgment on April 29, 2003, and Bellamy did not

pursue a direct appeal. Thus, his conviction and sentence became final following

the ten day window to appeal his case to this court, or May 9, 2003. See Fed. R.

App. P. 4(b)(1)(A) (“In a criminal case, a defendant's notice of appeal must be

filed in the district court within 10 days after the later of: (i) entry of either the

judgment or the order being appealed; or (ii) the filing of the government's notice

of appeal.”). Accordingly, Bellamy’s case was “final” for purposes of

retroactivity analysis approximately thirteen months before the Supreme Court

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decided Blakely on June 24, 2004, and his argument is foreclosed by our decision

in Price .

As to Bellamy’s Booker argument, this circuit has already held that “Booker

may not be applied retroactively to second or successive habeas petitions” under

28 U.S.C. § 2255. Bey v. United States, 399 F.3d 1266, 1269 (10th Cir. 2005).

We now join all other circuits that have examined the question and conclude

Booker does not apply retroactively to initial habeas petitions such as Bellamy’s. 1

As an initial matter, every court to examine the issue has concluded that Booker

represents a “procedural rule.” 2 We therefore apply Teague’s familiar three-step

1
See, e.g., Guzman v. United States, 404 F.3d 139, 142 (2d Cir. 2005) (“The
several courts of appeals that have considered the retroactivity question have held
that Booker is not retroactive . . . [w]e agree.”) (citations omitted); Lloyd v.
United States, 407 F.3d 608, 610 (3rd Cir. 2005) (“All courts of appeals to have
considered the issue of whether the rule of law announced in [Booker] applies
retroactively to prisoners who were in the initial § 2255 motion stage as of the
date that Booker issued have concluded that it does not. We now join those
courts.”); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005) (“[W]e
conclude that Booker’s rule does not apply retroactively in collateral
proceedings[.]”); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005)
(“Booker does not apply retroactively to criminal cases that became final before
its release on January 12, 2005.”); Varela v. United States, 400 F.3d 864, 868
(11th Cir. 2005) (per curiam) (“[W]e conclude that Booker’s constitutional rule
falls squarely under the category of new rules of criminal procedure that do not
apply retroactively to § 2255 cases on collateral review.”).
2
See e.g., McReynolds, 397 F.3d at 480-81 (7th Cir. 2005). As the Seventh
Circuit explained, Booker is a procedural rule because it is concerned with the
“identity of the decisionmaker, and the quantum of evidence required for a
sentence, rather than with what primary conduct is unlawful.” Id. (internal
citations omitted). In short, no conduct that was forbidden before Booker is
(continued...)

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analysis. First, we determine the date on which the defendant’s conviction

became final. Next, we consider whether a court considering the defendant’s

claim at the time his conviction became final would have felt compelled by

existing precedent to conclude that the rule the defendant seeks was required by

the Constitution. If not, then the rule is new. If we determine the rule is new, we

then determine whether the rule nonetheless falls within one of the two narrow

exceptions to the Teague doctrine. See O’Dell v. Netherland, 521 U.S. 151, 156-

57 (1997).

The exceptions to Teague apply to (1) new rules “forbidding criminal

punishment of certain primary conduct and rules prohibiting a certain category of

punishment for a class of defendants because of their status or offense”; and (2)

new rules that present “watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.” Id. at 157

(internal quotations omitted).

Applying Teague to this case, we first note that Bellamy’s conviction and

sentence were final on May 9, 2003, approximately twenty months before the

Supreme Court issued Booker on January 12, 2005. Second, it is clear Booker

represents a new rule under Teague. In general, a case announces a new rule

2
(...continued)
permitted today.

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“when it breaks new ground or imposes a new obligation on the States or the

Federal Government”; as such, “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, 489 U.S. at 301. For substantially the same reasons we concluded

in Price that Blakely represented a new rule, we find a new rule was announced in

Booker. See Price, 400 F.3d at 848-49 (holding Blakely represents a new rule

because at the time the defendant’s convictions became final, a court would not

have felt compelled to conclude the Blakely rule was constitutionally required).

This conclusion is hardly controversial; every other circuit to consider the

question has reached the same answer. See Guzman v. United States, 404 F.3d

139, 142 (2d Cir. 2005) (“Since Booker announced a new rule, we must decide

whether either of the Teague exceptions to nonretroactivity applies.”); Lloyd v.

United States, 407 F.3d 608, 612 (3rd Cir. 2005) (“[T]he parties [do not dispute]

the Booker rule constituted a new rule of criminal procedure for purposes of

Teague [and we] agree.”); Humphress v. United States, 398 F.3d 855, 861 (6th

Cir. 2005) (stating that the “Booker rule” is “clearly new”).

Because Booker announces a new rule for constitutional purposes, we must

next examine whether it meets an exception to the Teague analysis. As we

explained in Price, the first exception applies to a new rule that “places certain

kinds of primary, private individual conduct beyond the power of the criminal

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law-making authority to proscribe.” Price, 400 F.3d at 848 (quoting Teague, 489

U.S. at 307). This exception is inapplicable here for substantially the same

reasons it was inapplicable to Blakely. See Price, 400 F.3d at 848 (holding that

“although the Court sometimes referred to rules . . . falling under Teague’s first

exception, they are more accurately characterized as substantive rules not subject

to Teague’s bar . . . Blakely’s rule does not implicate this category of rules,

whether we call those rules substantive, rather than procedural, or procedural

rules falling under Teague’s first exception”) (internal quotations omitted). To

put it differently, Booker, like Blakely, did not add or remove any conduct from

the realm of criminal offenses. See also Humphress, 398 F.3d at 862 (“Because

this exception is clearly inapplicable, we proceed directly to our analysis of

Teague’s second exception.”); United States v. Mora, 293 F.3d 1213, 1218 (10th

Cir. 2002) (holding Apprendi v. New Jersey, 530 U.S. 466 (2000) does not

implicate Teague’s first exception).

As to the second Teague exception, the Supreme Court has previously

determined that a change in the law requiring that juries, rather than judges, make

the factual findings on which a capital sentence is based did not announce a

watershed rule of criminal procedure. See Schriro v. Summerlin, 124 S. Ct. 2519,

2524-26 (2004) (holding that Ring v. Arizona, 536 U.S. 584 (2002) did not

announce a watershed rule). The same logic applies to Booker, which, like Ring,

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applied principles of Apprendi to a sentencing matter. Furthermore, as we have

explained, “[t]o qualify as a ‘watershed’ rule of criminal procedure, the rule must

not only improve the accuracy with which defendants are convicted or acquitted,

but also alter our understanding of the bedrock procedural elements essential to

the fairness of a proceeding.” Mora, 293 F.3d at 1218-19 (internal quotations

omitted). Finally, we held in Price that Blakely does not affect the determination

of a defendant’s guilt or innocence; rather, it addresses only how a court imposes

a sentence once a defendant has already been convicted. See Price, 400 F.3d at

848. The same reasoning applies to Booker, which merely extends the logic of

Blakely to the Federal Sentencing Guidelines. See, e.g., McReynolds v. United

States, 397 F.3d 479, 481 (7th Cir. 2005) (holding the Booker rule is “not a

‘watershed’ change”); Humphress, 398 F.3d at 855 (“The Supreme Court has

never held that a new rule of criminal procedure falls within Teague’s second

exception. We hold that Booker’s rule does not either.”) (internal quotations

omitted); Guzman, 404 F.3d at 143-44; Varela v. United States, 400 F.3d 864,

867-68 (11th Cir. 2005) (per curium). Thus, like Blakely, Booker does not apply

retroactively on collateral review, and Bellamy’s claim may not be brought in this

initial habeas review under 28 U.S.C. § 2255.

Accordingly, we DENY COA and DISMISS the case. We also grant

Bellamy’s motion to proceed in forma pauperis.

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