United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2007 Decided May 11, 2007
No. 06-3002
IN RE: OLUTOYIN O. FASHINA
PETITIONER
On Petition for Leave to File Second
or Successive § 2255 Habeas Petition
(No. 94cr00025-03)
Peter S. Spivack, appointed by the court, argued the cause
for petitioner. With him on the briefs was Christopher T.
Handman.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for respondent. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S.
Attorney.
Before: GINSBURG, Chief Judge, and TATEL, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Convicted of various drug-related
offenses in 1994, Olutoyin Fashina petitions for leave to file a
successive § 2255 habeas petition in which he contends his
sentence was unconstitutional in light of United States v.
2
Booker, 543 U.S. 220 (2005). Fashina filed his first habeas
petition prior to the passage of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), and claims this request for
leave therefore should be evaluated under the pre-AEDPA
“cause and prejudice” standard; under the AEDPA, we may
entertain a second or successive habeas petition only if it is
based upon “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court.”
We hold Booker does not apply retroactively. As a result,
Fashina is not entitled to another habeas proceeding under the
AEDPA and, more to his point, neither can he show the “cause
and prejudice” required under pre-AEDPA law. We accordingly
deny his petition.
I. Background
In 1994 Fashina was indicted for (1) conspiracy to distribute
and possession with intent to distribute 100 grams or more of
heroin from October 1991 to March 1993, (2) distribution of
over 100 grams of heroin on November 5, 1992, and (3)
distribution and possession with intent to distribute over 100
grams of heroin on January 7, 1993. A jury acquitted him of the
November 5 distribution charge and convicted him on the other
counts. The jury made no finding as to the amount of drugs
involved.
At sentencing the district court adopted the factual findings
and the sentence recommended in the presentence investigation
report, see United States v. Badru, 97 F.3d 1471, 1476-78 (D.C.
Cir. 1996), which attributed to Fashina 14,007 grams of heroin,
some of which had never been in his possession. Fashina argued
unsuccessfully that the jury must have meant to attribute to him
only the heroin he possessed on January 7, 1993, and his
sentencing range under the Guidelines should be
3
correspondingly lower. On appeal we affirmed his conviction
and the sentence. Id. at 1479.
In 1995 Fashina filed a habeas petition claiming ineffective
assistance of counsel, which the district court denied; we
affirmed that judgment as well. In 2006 — after enactment of
the AEDPA — Fashina sought leave to file a successive habeas
petition, this time alleging, among other claims, that he was
sentenced in violation of Booker. We ordered briefing on the
Booker claim and denied leave with respect to the other claims.
II. Analysis
Under the AEDPA, an appeals court may grant leave to file
a second or successive motion for a writ of habeas corpus only
if the motion is based upon either:
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255. Fashina concedes he meets neither of these
standards. See In re Zambrano, 433 F.3d 886, 888 (D.C. Cir.
2006) (noting Supreme Court has not made Booker retroactive
to cases on collateral review). Instead he maintains that because
his motion meets the standards in effect before enactment of the
AEDPA, that statute may not be applied retroactively to his
case. Unless the Congress has expressly made a statute
retroactive, the courts do not apply it retroactively if doing so
4
“would impair rights a party possessed when he acted, increase
a party’s liability for past conduct, or impose new duties with
respect to transactions already completed.” Landgraf v. USI
Film Products, 511 U.S. 244, 280 (1994). The Government
responds that Fashina cannot meet the pre-AEDPA standard and
the AEDPA therefore may be applied without prejudice to him.
See United States v. Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998).
Pre-AEDPA, if a prisoner raised a claim for the first time in
a second or successive habeas petition and the Government,
based upon his record of prior petitions, alleged he was abusing
the writ, we would entertain the petition only if the prisoner
showed “cause for failing to raise [the claim earlier] and
prejudice therefrom.” McCleskey v. Zant, 499 U.S. 467, 494
(1991). Fashina contends he had “cause” for not raising his
Booker claim in his initial petition because Booker had not yet
been decided, and he suffers “prejudice therefrom” because
application of Booker to his case would reduce his sentence.
The Government counters that Fashina cannot show cause
because he could have raised the issue when he filed his first
petition, although the likelihood of success was then small, see
Bousley v. United States, 523 U.S. 614, 622 (1998), and he
cannot show prejudice because Booker is not retroactive.
We conclude Fashina cannot show “prejudice” because
Booker is not retroactive and therefore we need not consider
whether he has shown “cause.” We recognize that prudence
ordinarily dicates that we tackle nonconstitutional issues first, so
that, if their resolution is dispositive, we need not reach the
constitutional issue. See, e.g., Lambrix v. Singletary, 520 U.S.
518, 524 (1997); Lyng v. Northwest Indian Cemetery Protective
Ass’n, 485 U.S. 439, 445 (1988). But the principle of avoidance
is not an absolute; a court may invert the sequence in
appropriate circumstances. See, e.g., Saucier v. Katz, 533 U.S.
194, 201 (2001) (qualified immunity analysis requires court first
5
to determine whether constitutional right was violated, and only
if so whether right was clearly established); Lockhart v.
Fretwell, 506 U.S. 364, 369 n.2 (1993) (“Harmless-error
analysis is triggered only after the reviewing court discovers that
an error [of constitutional law] has been committed”). In
Lambrix itself the Supreme Court considered whether its
decision in Espinosa v. Florida, 505 U.S. 1079 (1992), should
be made retroactive, which required a “detailed analysis of
federal constitutional law,” although it could have remanded the
case to the court of appeals to consider whether the claim was
procedurally barred. 520 U.S. at 524. In doing so, the Court
acknowledged that “[c]onstitutional issues are generally to be
avoided,” id., but that did not mean
the procedural-bar issue must invariably be resolved
first; only that it ordinarily should be. Judicial
economy might counsel giving the [retroactivity]
question priority, for example, if it were easily
resolvable against the habeas petitioner, whereas the
procedural-bar issue involved complicated issues of
state law.
Id. at 525. We believe it is likewise appropriate in the present
circumstances to address retroactivity first. Similarly, in McCoy
v. United States, 266 F.3d 1245, 1255-56 (11th Cir. 2001), the
Eleventh Circuit, in the interest of judicial economy, first
considered the possible retroactivity of Apprendi v. New Jersey,
530 U.S. 466 (2000), rather than whether the petitioner was
procedurally barred for failing to raise the Apprendi argument
on direct appeal, because the retroactivity issue was then being
raised in a plethora of habeas motions in that circuit.
In Booker the Supreme Court held the United States
Sentencing Guidelines, if mandatory, would violate a
defendant’s Sixth Amendment right to have all facts necessary
6
to the imposition of a sentence found by a jury applying the
reasonable doubt standard; the Court therefore construed the
Guidelines as advisory. 543 U.S. at 244-45. The Government
concedes that, if Booker has retroactive effect, then Fashina has
shown prejudice because the district court increased his sentence
based upon its understanding the Guidelines were mandatory
and upon facts not found beyond a reasonable doubt by the jury.
The question before us, therefore, is whether Booker is indeed
to be applied retroactively. As established in Teague v. Lane,
489 U.S. 288 (1989), a decision announcing a new rule of law
applicable to criminal cases is retroactive only if the rule is (1)
substantive or (2) a “watershed” procedural rule. See Whorton
v. Bockting, 127 S. Ct. 1173, 1180-81 (2007); Schriro v.
Summerlin, 542 U.S. 348, 351-53 (2004). Fashina
acknowledges that Booker announced a new rule, and we hold
that neither exception to the general rule of nonretroactivity
applies to make Booker retroactive.
A. Substantive Rule?
A new substantive rule
alters the range of conduct or the class of persons that
the law punishes. In contrast, rules that regulate only
the manner of determining the defendant’s culpability
are procedural. ... A decision that modifies the
elements of an offense is normally substantive rather
than procedural.
Summerlin, 542 U.S. at 353-54 (citations omitted). Fashina
contends Booker is substantive because it made “the provisions
of the Sentencing Guidelines that alter the applicable sentencing
range based on the finding of a particular fact an element of the
underlying crime that must be proved beyond a reasonable doubt
to a jury.” See Jones v. United States, 526 U.S. 227, 239-40
7
(1999) (reading provision enhancing maximum sentence in
federal carjacking statute as element of crime, in part to avoid
constitutional concern).
Fashina misapprehends the significance of Booker,
however. If the Sentencing Guidelines were, as he claims,
incorporated into the criminal code, then the Guidelines would
be mandatory — the very opposite of what Booker holds.
Instead, Booker merely requires that the sentencing judge
consider the Guidelines. 543 U.S. at 261; see also United States
v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006). In order to
obtain a conviction and a particular sentence the Government
need not prove anything after Booker that it did not have to
prove before; therefore, Booker does not “alter[] the range of
conduct ... the law punishes,” Summerlin, 542 U.S. at 353, and
is not a substantive rule. See, e.g., McReynolds v. United States,
397 F.3d 479, 481 (7th Cir. 2005).
In addition, we note that even had the Guidelines remained
mandatory after Booker, it would have meant only that certain
facts previously found by the judge based upon a preponderance
of the evidence would have to be found by the jury beyond a
reasonable doubt. This would change “only the manner of
determining the defendant’s culpability” and the rule in Booker
would still therefore be a procedural, not a substantive, rule.
Summerlin, 542 U.S. at 353; see also United States v. Gentry,
432 F.3d 600, 603 (5th Cir. 2005); McReynolds, 397 F.3d at
480-81.
B. Watershed Procedural Rule?
A new procedural rule is a “watershed rule[] of criminal
procedure,” and therefore retroactive, only if it “implicat[es] the
fundamental fairness and accuracy of the criminal proceeding.”
Summerlin, 542 U.S. at 352 (quoting Saffle v. Parks, 494 U.S.
8
484, 495 (1990)) (internal quotation marks omitted).
“Infringement of the rule must ‘seriously diminish the likelihood
of obtaining an accurate conviction,’ and the rule must ‘alter our
understanding of the bedrock procedural elements’ essential to
the fairness of a proceeding.” Tyler v. Cain, 533 U.S. 656, 665
(2001) (quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990))
(other internal quotation marks omitted). Just recently the
Supreme Court explained it is not sufficient for a new rule to be
based upon a “bedrock” right; rather, the new rule “must itself
constitute a previously unrecognized bedrock procedural
element.” Whorton, 127 S. Ct. at 1183. Hence it is not
surprising that the class of “watershed” procedural rules is
“extremely narrow”; so narrow, indeed, “it is ‘unlikely’ that any
such rules ‘ha[ve] yet to emerge.’” Id. at 1181 (quoting
Summerlin, 542 U.S. at 352) (alteration in original) (other
internal quotation marks omitted); in fact, the Supreme Court
has not identified a single watershed procedural rule in the 18
years since it announced the doctrine, id. at 1182, though it has
suggested the rule in Gideon v. Wainwright, 373 U.S. 335
(1963), requiring states to offer counsel to indigent criminal
defendants, might have qualified as sufficiently “sweeping and
fundamental” had the watershed standard then been in place.
Beard v. Banks, 542 U.S. 406, 417-18 (2004).
Fashina contends Booker is on par with Gideon for two
reasons: Booker implicates the right to a jury, which is
“fundamental to our system of criminal procedure,” Summerlin,
542 U.S. at 358; see also Booker, 543 U.S. at 238-39 (principles
behind jury trial “have their genesis in the ideals our
constitutional tradition assimilated from the common law”); and
Booker “alters our understanding” of the scope of the reasonable
doubt standard, a “bedrock procedural element” that implicates
the accuracy of criminal proceedings. The Government
correctly notes the Supreme Court rejected the former point in
Summerlin when it said the “evidence is simply too equivocal”
9
to conclude that having judges rather than juries find facts
seriously diminishes the accuracy of verdicts. 542 U.S. at 356;
see also, e.g., Cirilo-Muñoz v. United States, 404 F.3d 527, 533
(1st Cir. 2005) (“In our view, the use of judge-made findings at
sentencing does not undermine ‘accuracy’ (in terms of
substantially different outcomes) .... Such judge-made findings
have been the conventional practice throughout our nation’s
history.”)
As for Fashina’s second point, we share his premise about
the foundational role of the reasonable doubt standard of proof
in criminal cases. As the Supreme Court said In re Winship, 397
U.S. 358, 363 (1970) (quoting Coffin v. United States, 156 U.S.
432, 453 (1895)), which held a juvenile is entitled to be judged
by the reasonable doubt standard when charged with an act that
would constitute a crime if committed by an adult:
The reasonable-doubt standard plays a vital role in the
American scheme of criminal procedure. It is a prime
instrument for reducing the risk of convictions resting
on factual error. The standard provides concrete
substance for the presumption of innocence — that
bedrock “axiomatic and elementary” principle whose
“enforcement lies at the foundation of the
administration of our criminal law.”
We also note that Winship was made retroactive, albeit prior to
the Court’s setting the current standard for retroactivity in
Teague. See Ivan V. v. City of New York, 407 U.S. 203, 204-05
(1972).
Important as the reasonable doubt standard no doubt is, our
task is to determine whether Booker works so “sweeping and
fundamental” a change in its application as to constitute a
watershed rule. As noted above, Booker alchemized mandatory
10
sentencing guidelines into advisory sentencing guidelines, which
gave the judge greater discretion to depart from the sentencing
range indicated by the Guidelines. See, e.g., Cunningham v.
California, 127 S. Ct. 856, 867 (2007) (“Under the system
described in Justice Breyer’s opinion for the Court in Booker,
judges [are] no longer ... tied to the sentencing range indicated
in the Guidelines”). Both before and after Booker, however,
some factors relevant to sentencing are determined by the court
applying the “preponderance of the evidence” standard, not
proof beyond a reasonable doubt. See Dorcely, 454 F.3d at 371-
72. In view of the continued importance of the Guidelines in
sentencing after Booker, describing the pre-Booker “mandatory
[G]uidelines as generating serious inaccuracy or fundamental
unfairness would not be easy.” Cirilo-Muñoz, 404 F.3d at 533;
see also Lloyd v. United States, 407 F.3d 608, 615 (3d Cir.
2005); Gentry, 432 F.3d at 605. Fashina merely quibbles with
this point when he argues that the regime of advisory Guidelines
improves accuracy by giving the judge discretion to rely solely
upon facts found by the jury beyond a reasonable doubt. To say
the mandatory regime implicated “fundamental fairness” and
“seriously diminished” accuracy relative to the advisory scheme
would be to drain all meaning from the words “fundamental”
and “seriously.” Cf. Whorton, 127 S. Ct. at 1183-84;
Summerlin, 542 U.S. at 355-56.
Fashina suggests this analysis proceeds from a
misunderstanding of Booker. He reads Booker as having two
parts; first, a rule, to wit, facts necessary to the imposition of a
sentence under mandatory federal Sentencing Guidelines must
be found by a jury beyond a reasonable doubt; and, second, a
remedy, to wit, the Guidelines are not mandatory but merely
advisory. See Booker, 543 U.S. at 245 (question of Guidelines
severability “concerns the remedy”). On this reading it is the
“rule” in Booker that, by broadening application of the
reasonable doubt standard, implicates accuracy and fundamental
11
fairness, and therefore, pursuant to Teague, is retroactive; the
“remedy” is irrelevant.
In order to determine whether the rule in Booker is one
“without which the likelihood of an accurate [verdict] is
seriously diminished,” Teague, 489 U.S. at 313 (plurality
opinion), we must compare the pre-Booker world to the present
world in which Booker is the law. Fashina implicitly assumes
we should compare the pre-Booker regime with the purely
notional state in which the rule in Booker obtains but the remedy
prescribed therein does not, so the Guidelines are mandatory and
all facts relevant to sentencing must be proven beyond a
reasonable doubt. We fail to see why we should base our
analysis upon a hypothetical regime, one the Supreme Court
considered but rejected in Booker, see 543 U.S. at 249-58, and
Fashina gives us no reason to think otherwise. We therefore
conclude, as have all our sister circuits, Booker does not meet
the criteria for retroactive application.*
III. Conclusion
In sum, Booker announced neither a substantive rule nor a
*
See Cirilo-Muñoz, 404 F.3d at 532-33; Guzman v. United States, 404
F.3d 139, 141-44 (2d Cir. 2005), cert. denied, 126 S. Ct. 731 (2005);
Lloyd, 407 F.3d at 613-16, cert. denied, 126 S. Ct. 288 (2005); United
States v. Morris, 429 F.3d 65, 66-67 (4th Cir. 2005), cert. denied, 127
S. Ct. 121 (2006); Gentry, 432 F.3d at 602-05; Humphress v. United
States, 398 F.3d 855, 860-63 (6th Cir. 2005), cert. denied, 126 S. Ct.
199 (2005); McReynolds, 397 F.3d at 481, cert. denied, 125 S. Ct.
2559 (2005); Never Misses A Shot v. United States, 413 F.3d 781,
783-84 (8th Cir. 2005); United States v. Cruz, 423 F.3d 1119, 1121
(9th Cir. 2005), cert. denied, 126 S. Ct. 1181 (2006); United States v.
Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); Varela v. United
States, 400 F.3d 864, 867-68 (11th Cir. 2005), cert. denied, 126 S. Ct.
312 (2005).
12
watershed rule of procedure and therefore is not retroactive; it
follows that Fashina would not have been successful if, in his
first habeas petition, he had claimed a Booker error — namely,
that he was sentenced based upon facts not found by a jury
beyond a reasonable doubt while the Guidelines were
mandatory. Fashina therefore both fails to meet the pre-AEDPA
requirements for relief from his procedural default and fails to
show the AEDPA would be impermissibly retroactive as applied
to him. Nor, as Fashina concedes, does he meet the
requirements under the AEDPA for permission to file a
successive § 2255 petition; his petition for leave to file is
therefore
Denied.