PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
RANDALL EUGENE CANNON,
Petitioner,
v. No. 02-6217
MIKE MULLIN, Warden, Oklahoma
State Penitentiary,
Respondent.
ORDER
Filed July 19, 2002
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge and
MURPHY, Circuit Judge.
MURPHY, Circuit Judge.
This case is before the court on Randall Eugene Cannon’s Emergency
Application for Stay of Execution and Emergency Motion for an Order Pursuant
to 28 U.S.C. § 2244(b)(3)(A) for Permission to File a Second Petition for Habeas
Corpus Relief Under Section 2254. Because Cannon has not made a prima facie
showing that his application to file a second section 2254 habeas petition satisfies
the requirements of section 2244(b), this court denies his request to file a second
section 2254 petition and his accompanying request for a stay of execution. 1
Cannon was convicted of murder and arson in Oklahoma state court; he was
sentenced to death for the murder conviction. Cannon v. State, 904 P.2d 89
(Okla. Crim. App. 1995). He is scheduled to be executed on July 23, 2002, at
6:00 p.m. Cannon filed a previous 28 U.S.C. § 2254 petition in the United States
District Court for the Western District of Oklahoma raising numerous claims of
constitutional error during his state trial proceedings. This court affirmed the
district court’s denial of habeas relief. Cannon v. Gibson, 259 F.3d 1253 (10th
Cir. 2001), cert. denied, 122 S. Ct. 1966 (2002). Cannon now seeks permission
from this court to file a second habeas petition 2 raising the following claim:
Oklahoma’s capital sentencing statute, 21 Okla. Stat. tit. 21, § 701.11, and the
jury instructions given during the penalty phase of Cannon’s trial violate the
Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Ring v. Arizona, 122 S. Ct. 2428 (2002).
In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
1
This court grants Cannon’s request to file a reply brief.
2
See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive
application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the district
court to consider the application.”).
-2-
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490. In Ring, the Supreme Court extended the rule it
announced in Apprendi to the death penalty context. In particular, the Court
noted that under Arizona law, the maximum punishment for first-degree murder
was life imprisonment unless one of the statutorily enumerated aggravating
factors was found to exist beyond a reasonable doubt. Ring, 122 S. Ct. at 2434-
35, 2437. The Court further noted that under Arizona law it is the trial court that
is empowered to determine whether the requisite aggravating circumstance is
present. Id. at 2434-35. Accordingly, the case presented the following question
to the Court: “whether [the requisite] aggravating factor may be found by the
judge, as Arizona law specifies, or whether the Sixth Amendment’s jury trial
guarantee, made applicable to the States by the Fourteenth Amendment, requires
that the aggravating factor determination be entrusted to the jury.” Id. at 2437
(footnote omitted). In line with its decision in Apprendi, the Court concluded that
the Sixth Amendment mandated that the existence of an aggravating factor
necessary for the imposition of the death penalty must be found by a jury, rather
than a sentencing judge. Id. at 2443.
In his application to file a second habeas petition, Cannon asserts that
Oklahoma’s capital sentencing scheme, along with the jury instructions given in
his case, suffers the same infirmity identified by the Supreme Court in Ring. In
-3-
particular, Cannon notes that under Oklahoma law,
The jury, if its verdict be a unanimous recommendation of death,
shall designate in writing . . . the statutory aggravating circumstance
or circumstances which it unanimously found beyond a reasonable
doubt . . . . Unless at least one of the statutory aggravating
circumstances enumerated in this act is so found or if it is found that
any such aggravating circumstance is outweighed by the finding of
one or more mitigating circumstances, the death penalty shall not be
imposed.
Okla. Stat. tit. 21, § 701.11. Although the question of the existence of the
statutory aggravators making Cannon eligible for the death penalty was submitted
to the jury and expressly made subject to proof beyond a reasonable doubt, the
jury was not instructed that it needed to find beyond a reasonable doubt that the
aggravating circumstances outweighed the mitigating circumstances. Because
both of these predicate “factual” determinations are necessary to make a
defendant eligible for a death sentence under Oklahoma law, and because
Oklahoma law does not require that the second such determination be made by
reference to the proof-beyond-a-reasonable-doubt standard, Cannon asserts that
Oklahoma’s death penalty scheme and his resulting death sentence are
constitutionally infirm.
The ability of state prisoners to bring second or successive section 2254
habeas petitions is strictly limited. See Tyler v. Cain, 533 U.S. 656, 661 (2001).
The relevant statutory provision, 28 U.S.C. § 2244(b), provides as follows:
(b)(1) A claim presented in a second or successive habeas corpus
-4-
application under section 2254 that was presented in a prior
application shall be dismissed.
(b)(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
It is clear that Cannon’s Ring claim was not presented in a previous section 2254
habeas petition; thus, it is not subject to automatic dismissal under section
2244(b)(1). It is likewise clear that Cannon’s Ring claim does not rely on newly
discovered evidence and does not, therefore, implicate section 2244(b)(2)(B).
Accordingly, Cannon is entitled to permission to file a second section 2254
habeas petition only if Ring set forth a new rule of constitutional law that was
previously unavailable and the Supreme Court has made that new rule retroactive
to cases on collateral review. See id. § 2244(b)(2)(A).
Cannon’s argument in favor of his assertion that the Supreme Court has
made Ring retroactive to cases on collateral review is two-fold: (1) because Ring
announced a new rule of substantive criminal law under the Eighth Amendment
applicable to state capital crimes, the limitations of Teague v. Lane, 489 U.S. 288
-5-
(1989), therefore do not apply, and the requirements of section 2244(b)(2)(A) are
met; and (2) the Supreme Court has made Ring retroactive to cases on collateral
review through the combination of Teague, Ring, and cases preceding Ring in the
Apprendi line. Neither assertion is convincing.
Cannon is simply incorrect in asserting that the combination of Teague,
Ring, and the cases in the Apprendi line render the rule announced in Ring
retroactively applicable to cases on collateral review. The Supreme Court
considered the contours of section 2244(b)(2)(A) in Tyler. The Court began by
noting that “under this provision, the Supreme Court is the only entity that can
‘ma[k]e’ a new rule retroactive. The new rule becomes retroactive, not by the
decisions of the lower court or by the combined action of the Supreme Court and
the lower courts, but simply by the action of the Supreme Court.” 533 U.S. at
663. The Court went on to note that the only way it could make a rule
retroactively applicable is through a “holding” to that effect. Id. “The Supreme
Court does not ‘ma[k]e’ a rule retroactive when it merely establishes principles of
retroactivity and leaves the application of those principles to lower courts.” Id.;
see also id. at 666 (“The most [Tyler] can claim is that, based on the principles
outlined in Teague, this Court should make Cage [v. Louisiana, 498 U.S. 39
(1990) (per curiam)] retroactive to cases on collateral review. What is clear,
however, is that we have not ‘made’ Cage retroactive to cases on collateral
-6-
review.”). The Court did recognize that it could “make a rule retroactive over the
course of two cases,” but only if “the holdings in those cases necessarily dictate
retroactivity of the new rule.” Id. at 666.
Despite this language from Tyler, the thrust of Cannon’s multiple-case
argument is that the rule set out in Apprendi, and extended in Ring to the death
penalty context, fits within Teague’s second exception for watershed rules of
criminal procedure and has therefore been made retroactively applicable by the
Supreme Court to cases on collateral review. This argument seriously
misconstrues Tyler. It is clear that the mere fact a new rule might fall within the
general parameters of overarching retroactivity principles established by the
Supreme Court (i.e., Teague) is not sufficient. See Tyler, 533 U.S. at 663
(holding that the Court does not make a rule retroactive “when it merely
establishes principles of retroactivity and leaves the application of those
principles to lower courts”); id. at 670 (O’Connor, J., concurring) (“[T]he
relevant inquiry is not whether the new rule comes within the Teague exception at
all, but the more narrow and manageable inquiry of whether this Court’s holdings,
by strict logical necessity, ‘ma[k]e’ the new rule retroactive within the meaning of
§ 2244(b)(2)(A).”). Cannon has failed to identify language in any of the cases
-7-
upon which he relies 3 mandating “by strict logical necessity” that the Supreme
Court has made the rule in Ring retroactively applicable to cases on collateral
review. Id. at 670 (O’Connor, J., concurring). The Court’s recognition in Tyler
of the possibility that multiple cases can render a new rule retroactive does not, as
Cannon suggests, give this court license to grant permission to file a second
habeas petition premised on our own determination that a new rule fits within the
second Teague exception. Such an approach would lead this court into the exact
quagmire identified by the Court in Tyler. See id. at 664 (“The stringent time
limit [for deciding applications to file second or successive habeas petitions set
out in 28 U.S.C. § 2244(b)(3)(D)] suggests that the courts of appeals do not have
3
The respondent appears to argue that Cannon cannot possibly show that
the combination of cases he cites renders Ring retroactive for purposes of
collateral review because all of the cases predate Ring. See Respondent’s Brief
at 9 (“The Petitioner, however, cites to prior decisions instead of any decision
since Ring.”). As Justice O’Connor noted in her concurring opinion in Tyler,
which concurrence provided the fifth vote for the majority,
But, as the Court recognizes, a single case that expressly holds a rule
to be retroactive is not a sine qua non for the satisfaction of this
statutory provision. Ante, at 2484. This Court instead may
“ma[k]e” a new rule retroactive through multiple holdings that
logically dictate the retroactivity of the new rule. Ibid. To apply the
syllogistic relationship described by Justice BREYER, post, at 2488
(dissenting opinion), if we hold in Case One that a particular type of
rule applies retroactively to cases on collateral review and hold in
Case Two that a given rule is of that particular type, then it
necessarily follows that the given rule applies retroactively to cases
on collateral review. In such circumstances, we can be said to have
“made” the given rule retroactive to cases on collateral review.
Tyler v. Cain, 533 U.S. 656, 668-69 (2001) (O’Connor, J., concurring).
-8-
to engage in the difficult legal analysis that can be required to determine
questions of retroactivity in the first instance.”).
In the alternative, Cannon argues that Ring announced a new rule of
substantive criminal law and that the Supreme Court’s decision in Bousley v.
United States, 523 U.S. 614, 620 (1998), holding that Teague’s retroactivity
analysis does not apply to substantive interpretations of criminal statutes, renders
Ring retroactive for purposes of collateral review. It is clear, however, that Ring
is simply an extension of Apprendi to the death penalty context. See Ring,
122 S. Ct. at 2432. Accordingly, this court’s recent conclusion in United States v.
Mora, ___ F.3d ___, 2002 WL 1317126, at *4 (10th Cir. June 18, 2002), that
Apprendi announced a rule of criminal procedure forecloses Cannon’s argument
that Ring announced a substantive rule.
Cannon’s attempt to distinguish Ring from Apprendi, and therefore avoid
Mora, on the basis that the decision in Apprendi is grounded in the Sixth
Amendment and the decision in Ring is grounded in the Eighth Amendment is
unavailing. The concluding paragraph of the majority opinion in Ring
unequivocally establishes that the decision is based solely on the Sixth
Amendment. 122 S. Ct. at 2443 (“The right to trial by jury guaranteed by the
Sixth Amendment would be senselessly diminished if it encompassed the
factfinding necessary to increase a defendant’s sentence by two years, but not the
-9-
factfinding necessary to put him to death. We hold that the Sixth Amendment
applies to both.”). Justice Breyer refused to join the majority opinion because it
was based on Apprendi, but nevertheless concurred in the judgment because he
thought that “jury sentencing in capital cases is mandated by the Eighth
Amendment.” Id. at 2446 (Breyer, J., concurring in the judgment). Although the
Court in Ring did discuss the “Eighth Amendment provenance of aggravating
factors,” it did so exclusively in the context of rejecting the argument “that the
Eighth Amendment’s restriction on a state legislature’s ability to define capital
crimes should be compensated for by permitting States more leeway under the
Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital
sentence.” Id. at 2442 (quotation omitted). Accordingly, Cannon’s attempt to
distinguish Ring from Apprendi is unconvincing, and this panel is bound by the
determination in Mora that Apprendi established a new rule of criminal
procedure.
For the reasons set out above, Cannon has failed to make a prima facie
showing that the Supreme Court has made Ring retroactively applicable to cases
on collateral review. Accordingly, this court DENIES both his application for
permission to file a second habeas petition and his accompanying emergency
request for a stay. Pursuant to 28 U.S.C. § 2244(b)(3)(E), our denial of
authorization to file a second habeas application is not appealable and cannot be
-10-
the subject of a petition for rehearing or a writ of certiorari. Thus only the
Supreme Court, exercising its original jurisdiction, can make the decision
necessary to provide Cannon the relief he seeks.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Deputy Clerk
-11-