F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 18 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES,
Plaintiff - Appellee,
v. No. 00-6268
TEDDY LEROY BAILEY,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 00-CV-565-R, 97-CR-28-R)
Michael A. Rotker, Attorney, United States Department of Justice, Washington,
D.C., (Robert G. McCampbell, United States Attorney, M. Jay Farber, Assistant
United States Attorney, with him on the briefs) for Plaintiff-Appellee.
Chris Eulberg, Oklahoma City, Oklahoma, for Defendant-Appellant.
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
ROGERS, Senior District Judge. *
LUCERO, Circuit Judge.
In Apprendi v. New Jersey, the Supreme Court announced a new rule of
*
The Honorable Richard D. Rogers of the District of Kansas sitting by
designation.
constitutional law: “Other 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. 466,
490 (2000). Appellant Teddy Leroy Bailey, for the first time on appeal from the
district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence, raises a claim under Apprendi. He neither objected to nor
directly appealed the trial court’s Apprendi error, however, and consequently he
may not obtain collateral relief unless he demonstrates “cause” excusing his
procedural default and “actual prejudice” resulting from the error. See United
States v. Frady, 456 U.S. 152, 168 (1982). We conclude appellant falls short of
demonstrating actual prejudice and dismiss his appeal.
I
Bailey was convicted in 1997 of one count of conspiracy to possess with
intent to distribute methamphetamine, 21 U.S.C. § 846, three counts of possession
with intent to distribute methamphetamine, id. § 841(a)(1), two counts of
distribution of methamphetamine, id., and three counts of money laundering, 18
U.S.C. §§ 1956(a)(1)(B)(i), 1957. The district court failed to submit the quantity
of drugs attributable to Bailey for the jury’s determination. Bailey did not object
to the instructions on this basis. During sentencing, the district court proceeded
to attribute to him possession of thirty-three pounds of methamphetamine and
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sentenced him accordingly. Bailey was sentenced to serve 286 months in prison
for the drug convictions; 240 months for two of the money laundering
convictions; and 120 months for the final money laundering conviction, all of
these terms to run concurrently.
Bailey did not appeal the district court’s failure to submit the drug quantity
question to the jury. Instead, he challenged various evidentiary rulings as well as
the sufficiency of the evidence supporting the district court’s drug type and
quantity findings. On November 20, 1998, this Court affirmed Bailey’s
convictions and sentences, United States v. Baker, Nos. 97-6311, 97-6312, 1998
WL 808392, at *9 (10th Cir. Nov. 20, 1998), and on March 22, 1999, the Supreme
Court denied certiorari, Bailey v. United States, 526 U.S. 1032 (1999).
One year and one day after the denial of certiorari, appellant filed his
§ 2255 motion, seeking relief on the sole ground of ineffective assistance of
counsel. By all indications, the motion was untimely. See 28 U.S.C. § 2255 para.
6 (providing, with some exceptions, that a one-year period of limitation to filing
§ 2255 motions shall run from the date on which the challenged conviction
becomes final). Nevertheless, the government’s court-ordered response neglected
the timing issue—even though it was ordered to address it—and argued simply
that “[s]ince the defendant has not supported his claim of ineffective assistance of
counsel with any facts or supporting law, the government respectfully requests
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that his motion be dismissed with prejudice.” (R. Doc. 157 at 2.) The district
court dismissed appellant’s motion for precisely that reason and declined to issue
a certificate of appealability.
This Court, too, declined to issue a certificate of appealability on
appellant’s ineffective assistance of counsel claim. However, appellant’s opening
brief raised a new claim arising under Apprendi, which was decided after the
district court’s dismissal of appellant’s § 2255 motion. Pursuant to 28 U.S.C.
§ 2253(c), we issued a certificate of appealability to determine, inter alia, whether
appellant “procedurally defaulted his Apprendi claim by failing to raise it at trial
and on direct appeal, and if so, [whether he can] show cause and actual prejudice
to excuse such a default.” United States v. Bailey, No. 00-6268, order at 3–4
(10th Cir. Apr. 25, 2001). 1
II
Appellant defaulted his Apprendi claim by failing to object to it at trial.
Thus, if he had raised the issue on direct appeal, our review would have been for
plain error. United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000), cert.
denied, 121 S. Ct. 2575 (2001). “Under that review, relief is not warranted unless
1
Counsel were instructed to address the question of whether appellant
waived his Apprendi claim by failing to raise it during the district court § 2255
proceedings. In light of our disposition of this matter, we find it unnecessary to
resolve this issue.
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there has been (1) error, (2) that is plain, and (3) affects substantial rights. . . . An
appellate court should exercise its discretion to correct plain error only if it
‘seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” Jones v. United States, 527 U.S. 373, 389 (1999) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)).
Under our precedent, the trial court’s Apprendi error is plain. See Keeling,
235 F.3d at 539 (“A jury instruction which omitted quantity as an element in these
circumstances is actual error that is now plain and obvious.”). The court should
have sentenced appellant under 21 U.S.C. § 841(b)(1)(C), which provides for a
maximum sentence of twenty years where no quantity of methamphetamine is
specified. See United States v. Lujan, 268 F.3d 965, 968–67 (10th Cir. 2001).
Nevertheless, the trial court’s Apprendi error would not constitute reversible plain
error because appellant’s substantial rights were not affected. Section 5G1.2(d)
of the Sentencing Guidelines Manual provides:
If the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively,
but only to the extent necessary to produce a combined sentence
equal to the total punishment. In all other respects, sentences on all
counts shall run concurrently, except to the extent otherwise required
by law.
We have held that U.S.S.G. § 5G1.2(d) is a mandatory provision because it speaks
“in terms of ‘shall’ rather than ‘may.’” United States v. Price, 265 F.3d 1097,
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1109 (10th Cir. 2001). 2 Therefore, absent its Apprendi error, the district court
nevertheless would have been required to impose twenty-year terms for each of
appellant’s drug convictions and to run the sentences consecutively to the extent
necessary to produce a combined sentence equal to 286 months, the same
effective sentence appellant is serving now. 3
The above analysis does not directly dispose of this matter because this is
not a direct appeal, but rather a collateral attack on defendant’s sentence. 4 The
fact that appellant’s claim would fail plain error scrutiny remains significant,
however, in light of the “well-settled principle that to obtain collateral relief a
prisoner must clear a significantly higher hurdle than would exist on direct
appeal.” Frady, 456 U.S. at 166. If appellant is to obtain collateral relief, he
“must show both (1) ‘cause’ excusing his double procedural default, and
(2) ‘actual prejudice’ resulting from the errors of which he complains.” Id. at
167–68. We need not determine whether appellant has shown cause if we
2
A petition for a writ of certiorari was filed in Price on January 30, 2002.
3
We have said that Apprendi analysis will not “be guided by idle
speculation as to the sentence that might be imposed by the district court on
remand.” United States v. Jones, 235 F.3d 1231, 1238 (10th Cir. 2000). In this
case, “there is no ‘idle speculation’ as to the sentence the district court could
impose upon remand” because U.S.S.G. § 5G1.2(d) is a mandatory provision.
Price, 265 F.3d at 1109.
4
For purposes of our analysis, we assume, without deciding, that Apprendi
is retroactively available in an initial habeas petition.
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conclude he suffered no “actual prejudice of a degree sufficient to justify
collateral relief.” Id. at 168.
“Actual prejudice” means “not merely that the errors at . . . trial created a
possibility of prejudice, but that they worked to [defendant’s] actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Id. at 170. Having concluded above that the trial court’s Apprendi
error did not affect appellant’s substantial rights such that it constituted reversible
plain error, we accordingly hold that there was no actual prejudice under the
higher standard required to obtain collateral relief. See United States v. Smith,
241 F.3d 546, 549 (7th Cir.) (“[F]or the same reason that [appellant] could not
show plain error (if that were the right standard) he cannot show prejudice
either.”), cert. denied, 122 S. Ct. 267 (2001).
III
The appeal is DISMISSED. Appellant’s motion for leave to proceed in
forma pauperis is GRANTED.
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