UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 99-50485
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK CLARK,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
July 26, 2001
Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON*, District Judge.
EMILIO M. GARZA, Circuit Judge:
In light of the impact that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000) has wrought in sentencing above maximum statutory limits, we REMAND to
the district court to reconsider its ruling denying Patrick Clark an amendment to his § 2255 motion
*
District Judge of the Southern District of Texas, sitting by designation
based on futility in light of Apprendi.1
1
By remanding this case, we express no opinion on how the district court should
resolve that issue. In reconsidering whether Clark’s amendment is futile the district court may need
to determine whether Apprendi announces a substantive change in the law requiring retroactivity
under Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (allowing a
defendant to assert in a § 2255 proceeding, a claim based on an intervening substantive change in the
interpretation of a federal criminal statute) or a change in procedure requiring application of Teague
v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (under Teague the district court
must determine the date on which the conviction became final, whether a new rule was announced,
which is procedural and not substantive, and, pending that determination, whether any exceptions
apply). Because of the difficulty and importance of the retroactivity issue, the district court should
consider whether to appoint counsel for Clark.
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ROBERT M. PARKER, Circuit Judge, dissenting:
I dissent from the panel’s decision to remand this case for
reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). This case presents a purely legal question that requires
no further action by the district court and I would therefore
decide, prior to remand, this issue which has been squarely
presented and adequately briefed.
Patrick Clark (federal prisoner # 61006-080) appeals the
denial of his motion to vacate, set aside or correct his sentence
filed pursuant to 28 U.S.C. § 2255. We granted Clark a certificate
of appealability to determine whether the district court erred in
denying him leave to amend his § 2255 motion based on the futility
of his claim that the amount of cocaine base is an element of
possession with intent to distribute cocaine base in violation of
21 U.S.C. § 841(a)(1) that must be alleged in the indictment.
In 1994, a federal grand jury charged Clark in a two-count
indictment with conspiracy to possess with intent to distribute
cocaine base and with possession “with intent to distribute cocaine
base, a Schedule II Controlled Substance in violation of Title 21
United States Code, Section 841(a)(1).” Clark pleaded guilty
pursuant to a plea agreement to Count Two, possession with intent
to distribute cocaine base, and was sentenced to a term of life
imprisonment. This court determined that he had waived his right
to appeal in his plea agreement and dismissed his direct appeal.
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See United States v. Clark, No. 94-50730 (5th Cir. Mar. 28,
1996)(unpublished).
In 1997, Clark filed the present § 2255 motion. The
magistrate judge found no cognizable constitutional errors and
recommended that the motion be denied. Clark filed objections to
the magistrate judge’s findings and recommendation, arguing for the
first time that his indictment was defective because it failed to
allege the applicable penalty provision under § 841(b). The
district court treated the objection as a motion to amend the §
2255 motion. On March 26, 1999, the district court determined that
it would be futile to allow the amendment, relying on case law that
held that the amount of drugs involved in an offense was a
sentencing factor and not an element of the offense that was
required to be alleged in the indictment. The order specifically
noted that “the movant’s argument has been rejected by every
circuit that has addressed it.” The district court then adopted
the magistrate judge’s findings that Clark’s other claims lacked
merit and denied the motion. The district court’s order was
entered two days after the Supreme Court decided Jones v. United
States, 526 U.S. 227 (1999), but made no mention of that opinion.
Clark appealed and the district court denied him a certificate
of appealability (COA). On March 30, 2000, Clark applied to this
court for a COA, asserting that Jones supported his argument that
the district court committed procedural error in denying him leave
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to amend his § 2255 motion based on the futility of his claim that
the amount of cocaine base involved should have been alleged in the
indictment. We granted COA on August 9, 2000, citing the then
recent Supreme Court opinion in Apprendi, 120 S. Ct. 2348 (decided
on June 26, 2000).
In Apprendi, the Supreme Court held that the Due Process
Clause of the Fourteenth Amendment requires that a factual
determination, other than the fact of a prior conviction,
authorizing an increase in the maximum prison sentence for an
offense must be made by a jury on the basis of proof beyond a
reasonable doubt. Apprendi, 120 S. Ct. at 2351. The Government
argues that the district court did not abuse its discretion in
denying Clark the opportunity to amend his § 2255 petition to
attack his sentence on the basis of Jones and Apprendi because that
claim was in fact futile under the law prevailing at the time
Clark’s conviction became final. Given that Clark’s conviction was
final prior to the date that Supreme Court decided Apprendi, I
agree that the Apprendi decision controls our analysis only if it
can be applied retroactively on collateral review.2
2
A petitioner who brings a successive habeas petition may not rely on a new rule of
constitutional law unless it has been made retroactive by the Supreme Court to cases on collateral
review. See U.S.C. §§ 2244(b)(3)(C) and 2255. The Supreme Court has not yet spoken on the issue
of whether Apprendi applies retroactively on collateral review, and it is thus not available as a basis
for relief in a successive habeas petition. In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). Because
this is Clark’s first § 2255 petition, that restriction is not implicated in this appeal.
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In Teague v. Lane, 489 U.S. 288, 310 (1989) the Supreme Court
stated that, as a general rule, “new constitutional rules of
criminal procedure will not be applicable to those cases which have
become final before the new rules are announced.” The Court
established a three-step inquiry to determine when new rules of
criminal procedure apply retroactively on collateral review.
Teague, 489 U.S. at 288. First, we must determine the date on
which the defendant’s conviction became final. O’Dell v.
Netherland, 521 U.S. 151, 156 (1997). Second, we must decide
whether the Supreme Court’s ruling constitutes a new rule of
constitutional criminal procedure; Teague is inapplicable unless we
find both that the rule is new and that it involves a procedural
rather than a substantive change. Bousley v. United States, 523
U.S. 614 (1998). Third, a new procedural rule may nonetheless
apply if it falls within one of two narrow exceptions to Teague’s
general rule barring retroactivity. See United States v. Sanders,
247 F.3d 139, 148 (4th Cir. 2001) (emphasizing the narrowness of
the exceptions and pointing out that the Supreme Court has yet to
find a single rule that qualifies under the second exception). The
first exception, that a new rule should be applied retroactively if
it places “certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe,” Teague, 489 U.S. at 311, has no application to the
case at bar. The second exception, that a new rule should be
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applied retroactively if it requires the observance of procedures
that are “implicit in the concept of ordered liberty,” id., is
fulcrum on which Clark’s argument turns.
Initially, I note that the parties do not dispute that Clark’s
conviction was final in 1996, well before the Supreme Court’s 2000
decision in Apprendi was announced.
Teague’s second step asks whether the rule is “new” and
whether the rule is properly characterized as substantive or
procedural. On the question of whether Apprendi announced a “new”
rule, we have been directed to “survey the legal landscape as it
then existed, and determine 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
[he] seeks was required by the Constitution.” Lambrix v.
Singletary, 520 U.S. 518, 526 (1997). As the district court
correctly noted, prior to Apprendi, Clark’s argument had been
rejected by this circuit, see, e.g., United States v. Hare, 150
F.3d 419, 428 n.2 (5th Cir. 1998)(noting that because proof of
quantity is not an element of the offense, a defendant charged with
a violation of § 841(a)(1) is on notice that the district court is
not bound by the quantity of drugs mentioned by the indictment and
that his sentence will be calculated under the sentencing
guidelines), overruled by United States v. Doggett, 230 F.3d 160
(5th Cir. 2000), and every other circuit that had addressed it.
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See, e.g., United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1998);
United States v. Silvers, 84 F.3d 1317 (10th Cir. 1996); United
States v. Olness, 9 F.3d 716 (8th Cir. 1993). The Government has
conceded and I find that Apprendi announced a new rule.
Next, I consider whether Apprendi involves a matter of
substantive law or whether it announces a new rule of criminal
procedure. Not all cases are easily categorized as being either
substantive or procedural. If the new rule gleaned from Apprendi
is the holding that every element of a crime must be submitted to
the jury, then it is a procedural rule which should be analyzed
under Teague standards. If, on the other hand, Apprendi is read as
refining the definition of an element of a federal offense, it is
a substantive decision governed by Davis v. United States, 417 U.S.
333, 346-47 (1974)(holding that a defendant may assert in a § 2255
proceeding a claim based on an intervening substantive change in
the interpretation of a federal criminal statute). The Government
has taken no position on this question in the brief filed in the
case at bar.
This circuit has twice in recent years applied new Supreme
Court decisions retroactively on collateral review based on our
conclusion that the decisions were substantive rather than
procedural. In United States v. Lopez, 248 F.3d 427 (5th Cir.
2001), Lopez filed a § 2255 motion attacking his conviction for
engaging in a continuing criminal enterprise. He argued that the
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Supreme Court’s decision in Richardson v. United States, 526 U.S.
813 (1999), handed down after his sentence became final, should be
retroactively applied to his case and that his sentence was
therefore void. Lopez, 248 F.3d at 429. Richardson held that a
jury must be instructed to reach a unanimous verdict on each of the
specific violations that comprise the alleged continuing series of
violations charged in the indictment. Richardson, 526 U.S. at ___.
We concluded that Richardson was a “new rule,” Lopez, 248 F.3d at
431, and that it is generally retroactively applicable on
collateral review. Id. at 432. We further held that Teague was
inapplicable to the retroactivity analysis because Richardson
interpreted the statutory phrase “continuing series of violations”
and was thus substantive rather than procedural. Id.
In reaching this conclusion, we relied on our earlier decision
in United States v. McPhail, 112 F.3d 197 (5th Cir. 1997), where we
applied Bailey v. United States, 516 U.S. 137 (1995), retroactively
based on the finding that Bailey was a substantive rather than
procedural ruling. “The decision in Bailey articulates the
substantive elements that the government must prove to convict a
person charged with using a firearm under § 924(c)(1). It explains
what conduct is, and has always been, criminalized by the statute.”
McPhail, 112 F.3d at 199. The Supreme Court subsequently adopted
the same reasoning and reached the same conclusion concerning
Bailey. Bousley v. United States, 523 U.S. 614 (1998).
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Similarly, this circuit has found that Apprendi defines the
elements of drug offenses and we must therefore follow Lopez and
McPhail in our examination of retroactivity. In United States v.
Doggett, 230 F.3d 160 (5th Cir. 2000), we concluded that Apprendi’s
significance for federal drug offenses was that it required drug
quantities under § 841(b) to be treated as elements of the offense
rather than sentencing factors. Id. at 164-65; see also Burton v.
United States, 237 F.3d 490 (5th Cir. 2000). Although we find
ourselves bound by our circuit’s precedent to hold that the new
rule redefines the elements of § 841 offenses and is therefore
substantive for purposes of our Teague analysis, I recognize that
Apprendi’s new rule has both substantive and procedural components.
On one hand, Justice Stevens’s majority opinion begins by
explaining why certain aspects of Apprendi’s case are not relevant
to the narrow issue that the Supreme Court set out to resolve. 530
U.S. at 474. In that context, he states that the constitutionality
of basing an enhanced sentence on racial bias is not before the
court, adding “[t]he substantive basis for New Jersey’s enhancement
is thus not at issue; the adequacy of New Jersey’s procedure is.”
Id. at 475. The Fourth Circuit cited this language to support its
conclusion that Apprendi sets forth a new rule of criminal
procedure, rather than a new substantive rule, and is thus subject
to Teague’s retroactivity restrictions. United States v. Sanders,
247 F.3d 139, 147 (4th Cir. 2001). On the other hand, Justice
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Stevens notes that the language of the Sixth and Fourteenth
Amendments to the Constitution as well as over two hundred years of
jurisprudence require that an accused be convicted only upon proof
beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged. Apprendi, 530 U.S. at 477-78. It
is clear from this discussion that the procedural aspect of the
decision is not new. The new concept that Apprendi adds to our
jurisprudence is that, other than a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum is an element of the charged offense. Id. at 490. Or in
the language of Justice Thomas’s concurrence, which Justice Scalia
joined, “[t]his case turns on the seemingly simple question of what
constitutes a ‘crime.’” Id. at 499.
Because this conclusion puts us at odds with three of our
sister circuits, I pause to consider whether their analysis reveals
some overlooked basis for treating Apprendi as a procedural rule.
Federal circuit courts are in essential agreement with the Fifth
Circuit’s conclusion that Apprendi reordered our jurisprudence with
respect to the elements of a § 841 conviction and that, post-
Apprendi, § 841 sets forth three separate offenses, rather than one
offense with three different penalties. See, e.g., United States
v. Flowal, 234 F.3d 932, 938 (6th Cir. 2000). The Fourth, Eighth
and Ninth Circuits have nonetheless treated Apprendi as a
procedural rather than a substantive rule for purposes of Teague’s
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analysis.
In Sanders, the Fourth Circuit disposes of petitioner’s
contention that Apprendi is not subject to Teague’s three-step test
because it sets forth a new rule of substantive rather than
procedural law by stating summarily that “Apprendi constitutes a
procedural rule because it dictates what fact-finding procedure
must be employed to ensure a fair trial.” Sanders, 247 F.3d at
147. Sanders then cites to Apprendi and quotes in a parenthetical,
without analysis or reference to context, Justice Stevens’s
observation that the substantive basis for New Jersey’s enhancement
was not at issue, the adequacy of its procedure was. Id.
The Ninth Circuit afforded even less discussion to the issue
before treating Apprendi as a procedural rule in Jones v. Smith,
231 F.3d 1227 (9th Cir. 2000). There, a panel decided that
Apprendi was properly characterized as “new” and went directly into
a discussion concerning whether the Apprendi rule, as applied to
the omission of the premeditation element of a state murder
charge,3 is retroactive under the second Teague exception. Id. at
1237. Similarly, the Eighth Circuit in United States v. Moss, 2001
3
Jones’s analysis and holding was limited to the question of whether Apprendi is retroactively
applicable to a state murder statute. District courts in the Ninth Circuit remain divided on whether
Apprendi may be applied retroactively in other contexts. Compare Reynolds v. Cambra, 136
F.Supp.2d 1071 (C.D.Cal. 2001)(applying Apprendi retroactively to a writ petition brought pursuant
to 28 U.S.C. § 2254) with Panoke v. United States, 2001 WL 46941, *3 (D.Haw. 2001)(holding that
Apprendi’s new rule “does not require retroactive application” in a § 2255 petition attacking a § 841
drug conviction).
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WL 637312 (8th Cir.(Neb.) June 11, 2001), held that an Apprendi
challenge raised in an initial § 2255 motion is Teague-barred
because, although it is a new rule, it fails to qualify under the
second Teague exception as a rule of “watershed magnitude.” Id. at
*2. The Moss panel majority completely omitted any consideration
of whether Apprendi implicates a substantive change governed by
Davis or a procedural rule governed by Teague.4 Id.
My research turned up three district court opinions that
carefully attend to the substantive/procedural dichotomy. Two of
them conclude, for largely the reasons I have already articulated,
that Apprendi is both substantive and procedural and thus must be
applied retroactively. See United States v. Hernandez, 137
F.Supp.2d 919, *6 (N.D. Ohio 2001); Darity v. United States, 124
F.Supp.2d 355 (W.D.N.C. 2000), overruled by United States v.
Sanders, 247 F.3d 139 (4th Cir. 2001). Contrariwise, Ware v.
United States, 124 F.Supp.2d 590 (M.D.Tenn. 2000) holds that
Apprendi’s new rule is only procedural. Ware examines the Supreme
Court’s decision announced in Bousley v. United States, 523 U.S.
614 (1998), that Teague’s non-retroactivity doctrine did not apply
to Bailey v. United States, 516 U.S. 137 (1995), because Bailey
announced a new rule of substantive law. Ware, 124 F.Supp.2d 595-
4
The dissent in Moss concludes that Apprendi falls within the watershed exception to the non-
retroactivity doctrine of Teague, but, like the majority opinion, does not address the
substantive/procedural issue.
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96. In Bousley, the “Supreme Court drew a distinction between
decisions concerning procedural rules and decisions holding that a
substantive federal criminal statute does not reach certain
conduct. The distinction is based on the idea that a new
interpretation of a substantive rule will place certain conduct
beyond the reach of the criminal law and will therefore create a
significant risk that defendants were unjustly convicted under the
old interpretation for conduct that is not unlawful.” Ware, 124
F.Supp.2d at 595 (internal citations omitted). Bailey exempted
some behaviors that had previously been held a violation of the
prohibition against use of a firearm under 18 U.S.C. § 924(c)(1),
and therefore some defendants had been convicted for conduct that
Congress had not prohibited. Id. at 595-96. The Ware court
reasons that Apprendi did not change the behavior prohibited by §
841; possession of certain drugs was and is illegal. Id. Rather it
simply changed the method of determining the weight of the drugs in
question. Id. “Therefore, instead of removing certain conduct from
the reach of criminal law, it merely imposes a procedural safeguard
to protect criminal defendants. The rule announced in Apprendi is
procedural.” Id. at 596.
While Ware sets out the most thoughtful articulation I have
found for holding that Apprendi’s rule is not substantive, I remain
unpersuaded by its logic. Bousley’s holding turns on the idea of
actual innocence and concerns itself with the “impermissibly large
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risk that the innocent will be convicted.” See Bousley, 523 U.S.
at 620. An Apprendi claim in the context of § 841, in its simplest
terms, asserts that while a defendant is guilty of possessing an
unspecified quantity of a controlled substance, he is actually
innocent of possessing the quantity necessary to be found guilty
and sentenced under the more onerous provisions of 21 U.S.C. §
841(b). See, e.g., § 841(b)(1)(A)(a maximum penalty of life
imprisonment and a mandatory minimum of ten years’ imprisonment);
see also United States v. Pittman, 120 F.Supp.2d 1263, 1270 n.9
(D.Or. 2000)(“[A] defendant may be ‘actually innocent’ of a
sentencing enhancement while guilty of the underlying offense.”).
Because I conclude that Apprendi announces a new substantive
rule, Teague’s prohibition against retroactivity does not apply and
Apprendi must be applied retroactively. See Davis, 417 U.S. at
346-47. For that reason, I do not reach the question of whether
Apprendi falls within one of Teague’s exceptions. For that reason,
as well, I find no merit in the Government’s contention that
Teague’s stated concern with the need for finality in criminal
cases and the costs of retroactive application of new rules of
constitutional law in habeas corpus proceedings dictates a ruling
that Apprendi is not retroactive. See Teague, 489 U.S. at 308-09.
The Government quotes at some length from statistics illustrating
the indisputable fact that narcotics cases constitute a high
percentage of federal prosecutions and full retroactive application
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of Apprendi will call into question tens of thousands of
convictions and sentences in drug cases alone. Justice O’Connor,
in her Apprendi dissent, suggested the same concern in calling the
change a “watershed change in constitutional law.” Apprendi, 530
U.S. at 524. I am therefore certain that the Supreme Court was
well aware of the potential long-range effect of its decision. The
district court in Pittman noted with alarm that any conclusion
other than a finding of non-retroactivity “could well lead to
overwhelming and disastrous results given that every court in every
jurisdiction in the country has treated drug quantity as a
sentencing factor for the judge to determine for well over ten
years.” Pittman, 120 F.Supp.2d at 1270. While Teague clearly
counsels that we consider the need for finality in criminal
matters, Apprendi dictates that criminal defendants not be
convicted and sentenced for crimes more serious than those charged
in their indictments and proved during trial. The fact that the
constitutional rights of criminal defendants were violated in a
large percentage of cases for a long time by well-meaning
prosecutors and good judges does not excuse us from remedying those
wrongs. Finally, I note that, under Fifth Circuit precedent, the
one-year limitations period for filing § 2255 petitions began to
run on June 26, 2000, the date the Supreme Court handed down
Apprendi and has therefore expired. See Lopez, 248 F.3d at 433;
but see In re Vial, 115 F.3d 1192, 1197 n.9 (4th Cir. 1997)(en
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banc)(interpreting the initial recognition of the right referred to
in § 2255(3) to be the date the Supreme Court rules on the
collateral availability of the rule). I therefore find myself
unpersuaded the Government’s sky-is-falling retroactivity argument.
For the foregoing reasons, I would hold that the district
court erred in denying as futile Clark’s motion to amend his
initial § 2255 petition. I would therefore reverse and remand to
the district court for further proceedings consistent with this
opinion rather than the majority’s remand without direction on the
question of retroactivity.
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