Sepulveda v. United States

United States Court of Appeals
For the First Circuit

No. 01-2755

GEORGE SEPULVEDA,
Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Elizabeth L. Prevett, Federal Defender Office, for petitioner.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief, for
respondent.

May 29, 2003
 SELYA, Circuit Judge. Invoking 28 U.S.C. § 2255 (2000),

petitioner-appellant George Sepulveda, a federal prisoner, mounted

a collateral attack on his conviction and sentence for witness

intimidation. The district court repulsed the attack. The

petitioner's ensuing appeal presents two questions of first

impression within this circuit. The first asks whether the rule

announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), applies

retroactively to cases on collateral review. The second, relevant

only if Apprendi lacks such retroactivity, asks whether the

enactment of the Antiterrorism and Effective Death Penalty Act

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), rendered the

doctrine of Teague v. Lane, 489 U.S. 288 (1989), inapplicable to

initial petitions for post-conviction relief under section 2255.

Concluding, as we do, that Apprendi has no retroactive effect and

that Teague is not a dead letter in the AEDPA context, we affirm

the denial of the petitioner's habeas corpus application.

I. BACKGROUND

The petitioner, known in some circles as "King Paradise,"

was convicted of multiple crimes arising out of his activities as

the leader of the Providence chapter of the Almighty Latin King

Nation. We affirmed those convictions in United States v. Lara,

181 F.3d 183 (1st Cir. 1999). Here, we reconstruct only the

factual terrain pertinent to the issues before us, referring those

-2-
who seek a more detailed topographic model to our earlier opinion.

See id. at 190-91.

A grand jury empaneled in the District of Rhode Island

returned a thirteen-count indictment against the petitioner and

several others. After a lengthy trial, a petit jury convicted the

petitioner of racketeering, conspiracy to commit racketeering,

murder in aid of racketeering, witness intimidation, and possessing

a firearm as a convicted felon. See 18 U.S.C. §§ 1962(c), 1962(d),

1959(a), 1512(b)(3), 922(g)(1). The district court imposed three

concurrent life sentences, a concurrent twenty-year incarcerative

term, and a concurrent ten-year incarcerative term. We affirmed

the convictions and sentences, Lara, 181 F.3d at 206, and the

Supreme Court eschewed further review, 528 U.S. 1127 (2000).

A federal criminal conviction becomes final when the

Supreme Court denies certiorari. See Clay v. United States, 123 S.

Ct. 1072, 1076 (2003). Approximately five months after the denial

of certiorari in the petitioner's case, the Court decided Apprendi.

The central holding of Apprendi is that "[o]ther 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. at 490.

This clarion call arguably conflicted with the procedure employed

by the district court in sentencing the petitioner on the witness

intimidation count. We explain briefly.

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 The witness intimidation count arose from an incident

wherein the petitioner ordered the "termination" of Manuel Pacheco,

a state prisoner who was assisting the authorities in their

investigation of the Latin Kings.1 Lara, 181 F.3d at 200. The

petitioner's order passed through various channels to henchmen

(incarcerated Latin King members) within the penitentiary in which

Pacheco was housed. Id. At the first opportunity, these acolytes

beat Pacheco savagely. Id. at 200-01.

A defendant convicted of witness intimidation typically

faces a maximum prison term of ten years. See 18 U.S.C. § 1512(b).

At sentencing, however, the government asked the lower court to

enhance the petitioner's sentence pursuant to the Criminal Street

Gangs Act, which authorizes a ten-year bump in the sentence of an

individual convicted of certain offenses — including witness

intimidation — if it is determined that the individual committed

the offense "intend[ing] to promote or further the felonious

activities of [a] criminal street gang or maintain or increase his

or her position in the gang." Id. § 521(d). The sentencing court

found that the petitioner's conviction fit within these confines

and, accordingly, imposed a twenty-year sentence (double the

maximum otherwise authorized under the statute of conviction).

1
In Latin King parlance, a "termination" can entail anything
from a beating to a slaying. Lara, 181 F.3d at 200.

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 On December 29, 2000, the petitioner filed a federal

habeas application — technically, an application to vacate, set

aside, or correct his sentence — under section 2255. See Ellis v.

United States, 313 F.3d 636, 641 (1st Cir. 2002) (observing that,

as to federal prisoners, section 2255 is in essence "a surrogate

for the historic writ of habeas corpus"). In it, he argued that he

had been sentenced to a term of imprisonment above the default

statutory maximum for the crime of conviction based on a judge's

factual finding that the circumstances attendant to his commission

of that crime warranted the enhancement, and that the resultant

sentence violated the Apprendi rule. The district court denied the

application, holding that Apprendi could not be applied

retroactively to cases on collateral review.

The petitioner moved for a certificate of appealability

(COA). See 28 U.S.C. § 2253. We granted the request with respect

to the effect, if any, that the Apprendi decision might have on the

petitioner's conviction for witness intimidation. This appeal

followed.

II. ANALYSIS

It is beyond cavil that the petitioner's sentence for

witness intimidation exceeds the default statutory maximum for that

crime, and that this overage rests on the sentencing court's

finding that the petitioner had acted with the intention of

furthering the felonious activities of a criminal street gang

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and/or maintaining his leadership position in such a gang. Thus,

the petitioner has made at least a prima facie showing of a

violation of the Apprendi rule.2 But the petitioner's conviction

had already become final before Apprendi was handed down, and the

threshold question is whether the new rule applies to his case.

See Derman v. United States, 298 F.3d 34, 39 (1st Cir. 2002). The

petitioner advances two theories in support of the retroactive

application of the Apprendi rule. We address these theories

sequentially.

A. The Teague Exceptions.

The Supreme Court's decision in Teague v. Lane

constitutes a general bar to the retroactive application of newly

announced rules of criminal procedure. Tyler v. Cain, 533 U.S.

656, 665 (2001) (citing Teague, 489 U.S. at 311-13). The Teague

bar admits of two exceptions. The first allows retroactive

application of new rules that either (a) prohibit criminal

punishment for certain types of primary conduct, or (b) forbid the

imposition of certain categories of punishment for particular

classes of defendants. O'Dell v. Netherland, 521 U.S. 151, 157

(1997). This exception is patently inapposite here: Apprendi

neither places any particular type of conduct beyond the reach of

2
The government makes a rather tenuous argument that, even if
Apprendi applies, the rule was not violated here. The government
also maintains that any error was harmless. We need not reach
either of these issues.

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the criminal law nor pretermits any particular type of punishment

for a specific class of defendants. Accord McCoy v. United States,

266 F.3d 1245, 1256 (11th Cir. 2001). Thus, the petitioner's

challenge necessarily stands or falls on the strength of the second

exception.

The second Teague exception allows retroactive

application of "watershed rules of criminal procedure implicating

the fundamental fairness and accuracy of the criminal proceeding."

Graham v. Collins, 506 U.S. 461, 478 (1993) (internal quotation

marks omitted). For this exception to flourish, the new rule must

pass two tests. First, "[i]nfringement of the rule must seriously

diminish the likelihood of obtaining an accurate conviction."

Tyler, 533 U.S. at 665 (citations and internal quotation marks

omitted). Second, the new rule must itself alter the accepted

understanding of the bedrock procedural elements essential to the

integrity and fairness of a criminal proceeding. Id.

Nothing in the Apprendi decision indicates to us that

infringements of its rule will seriously diminish the accuracy of

convictions (which, by definition, must take place before any such

infringement occurs). The case before us provides a practical

illustration of why this is so. The petitioner was tried before a

jury and convicted of witness intimidation upon proof of his guilt

beyond a reasonable doubt. There is no indication that, in the

course of his trial, he received less than the process that was

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due. The procedural error to which the petitioner adverts may

raise questions as to the length of his sentence, but inaccuracies

of this nature, occurring after a defendant has been duly

convicted, are matters of degree and do not trump what the Justices

have termed "the general rule of nonretroactivity." Tyler, 533

U.S. at 665.

We add, moreover, that the length of the petitioner's

sentence was not plucked out of thin air, but, rather, was

determined by a federal judge based upon discrete findings of fact

established by a fair preponderance of the evidence. We agree with

the Seventh Circuit that findings by federal judges, though now

rendered insufficient in certain instances by Apprendi, nonetheless

"are adequate to make reliable decisions about punishment." Curtis

v. United States, 294 F.3d 841, 844 (7th Cir. 2002). After all,

even in the post-Apprendi era, findings of fact made by the

sentencing judge, under a preponderance standard, remain an

important part of the sentencing regimen. See, e.g., United States

v. Caba, 241 F.3d 98, 101 (1st Cir. 2001) ("[A]fter Apprendi, . .

. sentencing factors that boost a defendant's sentence but do not

trip a new statutory maximum remain grist for the district judge's

mill under a preponderance-of-the-evidence standard."); see also

United States v. Robinson, 241 F.3d 115, 122 (1st Cir. 2001)

(rejecting the argument that when facts found by the judge trigger

or increase a mandatory minimum sentence, an Apprendi violation

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occurs). Consequently, Apprendi's new rule not only fails to

impugn the accuracy of convictions that became final beforehand but

also falls short of rendering sentences imposed under the pre-

Apprendi regime seriously inaccurate. See Goode v. United States,

305 F.3d 378, 385 (6th Cir. 2002); cf. United States v. Sanchez-

Cervantes, 282 F.3d 664, 669 (9th Cir. 2002) ("We do not believe

that requiring the jury to make drug quantity determinations beyond

a reasonable doubt will greatly affect the accuracy of

convictions.").

By the same token, we do not believe that the Apprendi

rule can be characterized as a watershed rule of criminal

procedure. Without in any way denigrating either the importance or

the impact of Apprendi, that decision cannot plausibly be said to

have altered the commonly accepted understanding of the bedrock

procedural elements of our criminal justice system. Accord United

States v. Sanders, 247 F.3d 139, 150 (4th Cir. 2001) (rejecting the

notion that, pre-Apprendi, "the country's criminal justice system

malfunctioned . . . fundamentally"). Watershed rules affecting

bedrock procedural elements are few and far between. The

quintessential example of such a rule — the only example

specifically mentioned by the Supreme Court — is the landmark

decision in Gideon v. Wainwright, 372 U.S. 335 (1963). The

"sweeping rule of Gideon . . . established an affirmative right to

counsel in all felony cases." O'Dell, 521 U.S. at 167. It

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protected each accused, "though he be not guilty, [from] the danger

of conviction because he does not know how to establish his

innocence." Gideon, 372 U.S. at 345 (citation omitted). This

pronouncement — that representation by counsel is fundamental to a

fair trial — reshaped the legal landscape and dramatically revised

the common understanding of what the Due Process Clause demands in

a criminal case.

Other concrete examples of watershed rules are hen's-

teeth rare. See Graham, 506 U.S. at 478 ("[W]e operate from the

premise that such procedures would be so central to an accurate

determination of innocence or guilt [that] it [is] unlikely that

many such components of basic due process have yet to emerge.").

One reason for this phenomenon is that the Supreme Court has

exhibited reluctance to showcase prototypes of rules that might

enjoy this venerated status. That is understandable because the

Teague exception "is clearly meant to apply only to a small core of

rules requiring observance of those procedures that are implicit in

the concept of ordered liberty." O'Dell, 521 U.S. at 157.

Apprendi is not within this small core of cases. The

rule that it announces merely assures a previously convicted

defendant that increased punishment, over and above the default

statutory maximum, can only be imposed if the factual predicate for

the increase — other than a prior criminal conviction — is

confirmed by a jury to a higher quantum of proof. See Apprendi,

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530 U.S. at 484 ("If a defendant faces punishment beyond that

provided by statute when an offense is committed under certain

circumstances but not others, . . . it necessarily follows that the

defendant should not . . . be deprived of protections that have,

until that point, unquestionably attached.") (emphasis supplied).

Although the Apprendi rule is important as a means of clarifying

the proper factfinding roles of judge and jury, it affords an

innocent defendant no additional shield from wrongful conviction.

Refined to bare essence, the rule "merely limits the potential

penalty to be imposed on [an undoubtedly] guilty defendant" to that

designated by statute. Goode, 305 F.3d at 385.

In sum, "a decision . . . by a judge (on the

preponderance standard) rather than a jury (on the reasonable-doubt

standard) is not the sort of error that necessarily undermines the

fairness . . . of judicial proceedings." Curtis, 294 F.3d at 843.

Applying Apprendi's procedural mandate retroactively would create

an unacceptably high risk that those found guilty of criminal

conduct might escape condign sentences. Hence, we join every court

of appeals that thus far has decided the question and hold that the

Apprendi rule fails to qualify as a watershed rule within the

meaning of the second Teague exception. See Coleman v. United

States, ___ F.3d ___, ___ (2d Cir. 2003) [2003 WL 21019559, at

*10]; Goode, 305 F.3d at 382-85; United States v. Brown, 305 F.3d

304, 307-10 (5th Cir. 2002) (per curiam); Curtis, 294 F.3d at 843-

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44; United States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir. 2002);

Sanchez-Cervantes, 282 F.3d at 667; McCoy, 266 F.3d at 1257-58;

United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001); Sanders,

247 F.3d at 151.

In an effort to turn aside the combined force of

reasoning and precedent, the petitioner offers several diversions.

None is persuasive, but three of his sallies merit brief comment.

In the first place, the petitioner emphasizes that no

less an authority than Justice O'Connor has characterized the

majority opinion in Apprendi as one that announces "a watershed

change in constitutional law." Apprendi, 530 U.S. at 524

(O'Connor, J. dissenting). The petitioner's reliance on this

statement demonstrates the verity that a single word often has the

capacity to convey multiple shades of meaning. See Hanover Ins.

Co. v. United States, 880 F.2d 1503, 1504 (1st Cir. 1989)

(explaining that "words can be like chameleons, which reflect the

color of their environment") (citation and internal quotation marks

omitted). Justice O'Connor warned that "the most significant

impact of the Court's decision" in Apprendi was that it

"threaten[ed] to unleash a flood of petitions by convicted felons

seeking to invalidate their sentences." 530 U.S. at 550-51. Her

concern was "a practical one," prompting her to chastise the

majority for "not say[ing] whether [determinate-sentencing] schemes

are constitutional." Id. at 550. She did not advert to Teague,

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and her use of the word "watershed," taken in this context, cannot

plausibly be interpreted as a definitive conclusion that she — or

anyone else — would hold the Apprendi rule to be a watershed rule

for Teague purposes.

Next, the petitioner posits that the Apprendi rule is not

strictly a rule of criminal procedure, but, rather, possesses a

substantive component, requiring those facts that warrant sentence

enhancement to be considered elements of an aggravated crime. This

formulation contains more cry than wool.

The Apprendi decision is about criminal procedure, pure

and simple. Accord Curtis, 294 F.3d at 843. Long before the Court

decided Apprendi, basic principles of criminal and constitutional

jurisprudence protected defendants from being convicted on less

than proof beyond a reasonable doubt of each and every element of

a charged crime. See In re Winship, 397 U.S. 358, 364 (1970)

(holding that "the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the [charged] crime").

Notwithstanding the prevalence of this principle, courts routinely

approved the practice of enhancing sentences based on a judge's

factual determinations. See, e.g., United States v. Thomas, 204

F.3d 381, 383 (2d Cir. 2000); United States v. Grimaldo, 214 F.3d

967, 974-75 (8th Cir. 2000); United States v. Lindia, 82 F.3d 1154,

1160-61 (1st Cir. 1996). The Apprendi rule limited that widespread

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practice.3 The fact that the Apprendi rule implements certain

underlying constitutional protections makes it no less a rule of

criminal procedure. See Sanders, 247 F.3d at 151. The Supreme

Court has instructed us that the "distinction between substance and

procedure is an important one in the habeas context," Bousley v.

United States, 523 U.S. 614, 620 (1998), and we cannot disregard

that distinction in applying the Teague screen.

In the last analysis, "[t]he Teague doctrine is founded

on the notion that one of the principal functions of habeas corpus

is to assure that no man has been incarcerated under a procedure

which creates an impermissibly large risk that the innocent will be

convicted." Id. (internal quotation marks and alterations

omitted). Pre-Apprendi practice, though incorrect, created no such

risk. While the Apprendi rule may improve the correlation between

crime and punishment in future prosecutions, it does not render the

correlation for past convictions completely (or even seriously)

unreliable. Thus, the procedure required by Apprendi has the

capacity to improve substance — but it is not substance in and of

itself.

The petitioner's third line of attack attempts to compare

Apprendi to the Supreme Court decisions in Bailey v. United States,

3
We say "limited" rather than "abolished" because, even after
Apprendi, it remains constitutionally permissible for judges to
make a wide variety of sentence-enhancing factual determinations
under the preponderance standard. See, e.g., Robinson, 241 F.3d at
122; Caba, 241 F.3d at 101.

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516 U.S. 137 (1995), and Richardson v. United States, 526 U.S. 813

(1999). Based on these comparisons, the petitioner asserts that

the rationale for applying the Bailey and Richardson doctrines

retroactively supports giving Apprendi retroactive effect. We

reject this attempted analogy for the most basic of reasons: the

cases are not fair congeners.

Bailey involved a determination of what conduct Congress

criminalized in enacting 18 U.S.C. § 924(c)(1). The Bailey Court

determined that "possession" was not "use" and vacated the

defendant's conviction. 516 U.S. at 143. Because Bailey involved

substance, not procedure, the decision provides no guidance for a

Teague analysis. See Bousley, 523 U.S. at 620 ("[B]ecause Teague

by its terms applies only to procedural rules, we think it is

inapplicable to the situation in which this Court decides the

meaning of a criminal statute enacted by Congress.").

Richardson is not quite so far afield. That case

involved both the interpretation of a criminal statute and the

procedural safeguards attendant to a defendant's right to have a

jury make factual findings leading to conviction thereunder.

Richardson, 526 U.S. at 816. Although the latter half of this

hybrid bears some similarities to Apprendi, the first half strays

from Apprendi in so material a way as to undermine the attempted

analogy.

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 The core holding in Richardson required jury unanimity as

to each "violation" in the "series of violations" needed to convict

under the continuing criminal enterprise (CCE) statute, 21 U.S.C.

§ 848. See Richardson, 526 U.S. at 818-19. Jury discordance as to

the identity of the individual violations that comprised the

necessary series would threaten the accuracy of any conviction for

violating the CCE statute, a factor that makes retroactive

application of Richardson more appropriate under a Teague

analysis.4 Apprendi errors pose no such threat. Thus, we find the

petitioner's comparison of Apprendi to Richardson to be like

comparing a plum to a pomegranate.

That ends this aspect of the matter. We hold, without

serious question, that Apprendi prescribes a new rule of criminal

procedure, and that Teague does not permit inferior federal courts

to apply the Apprendi rule retroactively to cases on collateral

review.

B. The Effect of the AEDPA.

This conclusion does not mark the end of our odyssey.

The petitioner contends in the alternative that a Teague analysis

4
This case does not require us to announce a holding as to the
retroactive effect of Richardson, and we leave that question for
another day. We engage in the discussion only to distinguish the
rationale that may have led other courts to hold Richardson
retroactively applicable to cases pending on collateral review.
See, e.g., Santana-Madera v. United States, 260 F.3d 133, 138-39
(2d Cir. 2001); United States v. Lopez, 248 F.3d 427, 432 (5th Cir.
2001); Lanier v. United States, 220 F.3d 833, 838 (7th Cir. 2000);
Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000).

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is unnecessary. This contention rests on the premise that the

AEDPA evinces Congress's intent to displace the Teague doctrine in

the context of initial section 2255 petitions filed within one year

of the date upon which a conviction becomes final.

The petitioner's premise derives, in the first instance,

from an AEDPA provision governing, inter alia, federal prisoners'

initial applications for habeas relief under section 2255. Section

2255 consists of a narrative series of unnumbered paragraphs, but

for ease in reference we cite to the paragraphs by artificially

imposed symbol and number. The provision on which the petitioner's

premise depends reads in pertinent part:

A 1-year period of limitation shall apply to a
motion under [section 2255]. The limitation
period shall run from the latest of —
(1) the date on which the
judgment of conviction becomes
final;
(2) the date on which the
impediment to making a motion
created by the governmental
action in violation of the
Constitution or laws of the
United States is removed, if the
movant was prevented from making
a motion by such governmental
action;
(3) the date on which the right
asserted was initially
recognized by the Supreme Court,
if that right has been newly
recognized by the Supreme Court
and made retroactively
applicable to cases on
collateral review; or
(4) the date on which the facts
supporting the claim or claims
presented could have been

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 discovered through the exercise
of due diligence.

28 U.S.C. § 2255 ¶6. The petitioner argues that ¶6(1) allows a

federal habeas petitioner to file an initial application for post-

conviction relief based on a new rule of criminal procedure

regardless of when the new rule was announced as long as the

application is filed within one year of the date on which the

judgment of conviction becomes final. In his view, this

interpretation — which eliminates the need for any retroactivity

analysis — is legitimized by contrasting the differing language of

¶6(1) with that of ¶6(3), which embodies a specific standard for

when new rules may be given retroactive effect in connection with

petitions for section 2255 relief filed more than one year after a

final judgment of conviction. This is an imaginative exercise in

legal legerdemain, but not a convincing one.

In discerning the meaning of the words that Congress

wrote, an inquiring court invariably must start with the statutory

text. United States v. Charles George Trucking Co., 823 F.2d 685,

688 (1st Cir. 1987). In parsing that text, "we will not depart

from, or otherwise embellish, the language of a statute absent

either undeniable textual ambiguity or some other extraordinary

consideration, such as the prospect of yielding a patently absurd

result." Pritzker v. Yari, 42 F.3d 53, 67-68 (1st Cir. 1994)

(citations omitted). The commonsense corollary of these principles

is that statutory language can only be ascribed meaning if taken in

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context. United States v. Ahlers, 305 F.3d 54, 57-58 (1st Cir.

2002). Part of that context is the presumption that, in the

ordinary case, "Congress expects its statutes to be read in

conformity with [the Supreme] Court's precedents." Clay, 123 S.

Ct. at 1076.

Viewed through this prism, we find nothing in ¶6

sufficient to overturn the general bar against retroactive

application of new rules of criminal procedure set forth in Teague.

In terms, ¶6 deals strictly and solely with the temporal

limitations for filing section 2255 petitions. See Brown, 305 F.3d

at 307. The prefatory language and structure of ¶6 reveal an

obvious legislative intent to place a one-year limitation period on

federal habeas claims that arise under different circumstances.

See Derman, 298 F.3d at 40 ("In [the AEDPA], Congress for the first

time established time limits applicable to the filing of habeas

petitions: a prisoner (state or federal) has one year from [a

certain] date . . . within which to seek federal habeas relief.").

The succeeding subsections of ¶6 implement and embellish

this intent. The baseline rule is contained in ¶6(1). This

subsection unambiguously obligates a federal prisoner to bring all

habeas claims that are extant at the time of final judgment within

one year. See 28 U.S.C. § 2255 ¶1 (authorizing a federal prisoner

to seek review of a sentence that "was imposed in violation [of the

law] . . . , or is otherwise subject to collateral attack")

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(emphasis supplied). If sentence was imposed consistent with then-

prevailing law and that sentence is not otherwise subject to

collateral attack, the prisoner has no claim to bring under section

2255.

Notwithstanding this baseline rule, ¶6(3) holds out the

possibility that a change in the prevailing law may make a

petitioner's conviction susceptible to collateral review in the

future. Thus, if the Supreme Court later announces a new rule that

arguably has retroactive application to the conviction, the date of

that decision marks the accrual of a new habeas claim. Under that

paradigm, ¶6(3) provides a further one-year limitation period

within which the petitioner may bring his newborn claim.5

Analytically, then, the different sub-parts that constitute ¶6 deal

with different starting points for the running of the limitation

period. There is no substantive language in ¶6 that realistically

can be viewed as displacing the wonted application of the Teague

doctrine to federal habeas claims. See Goode, 305 F.3d at 384;

Brown, 305 F.3d at 307; Mora, 293 F.3d at 1218.

5
The courts are divided as to whether the incremental one-year
period runs from the date of the Supreme Court's announcement of
the new rule or from the date that the new rule is first declared
to be retroactive. Compare Triestman v. United States, 124 F.3d
361, 371 & n.13 (2d Cir. 1997) (adopting former interpretation),
with Ashley v. United States, 266 F.3d 671, 673 (7th Cir. 2001)
(adopting latter interpretation). Because the Apprendi rule does
not have retroactive application, see supra Part II(A), we have no
need to choose between these conflicting views.

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 The petitioner has another string to his statutory

construction bow. He adverts to a variety of other provisions

within the realm of federal habeas law and notes that they are

worded differently than 28 U.S.C. § 2255 ¶6. See 28 U.S.C. §

2254(d) (imposing restrictions on state prisoners' habeas claims);

id. § 2255 ¶8 (imposing restrictions on federal prisoners' second

or successive habeas petitions). Invoking the hoary tenet that

"where Congress includes particular language in one section of a

statute but omits it in another . . . it is generally presumed that

Congress acted intentionally," Duncan v. Walker, 533 U.S. 167, 173

(2001), he asserts that we should interpret those provisions that

do not contain a specific directive about how to apply new Supreme

Court rules retroactively — such as ¶6(1) — as negating any such

requirement (and, to that extent, rendering Teague obsolete). This

argument lacks force.

As the petitioner notes, the language of these provisions

differs from the language of 28 U.S.C. § 2255 ¶6(3). But the

provisions that the petitioner cites impose different substantive

rules on the retroactivity analysis to be employed. For that

reason, the canon of construction on which the petitioner relies

furnishes no sound basis for concluding that because ¶6(1) is

silent as to retroactivity, anything goes.6 The logical reading —

6
Such an interpretation would lead to problematic results.
Under it, a defendant whose conviction became final 364 days before
the Supreme Court announced a new rule that fell outside the Teague

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and the one that we endorse — is that retroactivity is not

mentioned in ¶6(1) because the impact of new rules announced after

final judgment is covered in ¶6(3). We explain briefly.

Every provision of federal habeas law is subject to

Teague's doctrinal reach. See Clay, 123 S. Ct. at 1076. The

changed phraseology of section 2254(d) and 2255 ¶8 evinces a

congressional intent to increase the burden of certain habeas

petitioners above and beyond the baseline demonstration that a case

"has been . . . made retroactively applicable to cases on

collateral review." 28 U.S.C. § 2255 ¶6(3). Accordingly, 28

U.S.C. § 2255 ¶8 restricts second or successive habeas petitions

challenging federal convictions to those new rules of

constitutional law explicitly made retroactive by the Supreme Court

itself to cases on collateral review. See Tyler, 533 U.S. at 662

(holding that the identically worded requirement contained in 28

U.S.C. § 2244(b)(2)(A) is "satisfied only if [the Supreme] Court

has held that the new rule is retroactively applicable to cases on

collateral review"). The restrictive language of ¶8 plainly

reflects congressional intent to limit the reach of Teague and to

exceptions would have a single day in which to file a habeas
petition based on that rule, whereas an identically situated
defendant whose conviction became final one day prior to the same
announcement would have almost a full year to take advantage of the
new rule. It confounds rational thinking to conclude that Congress
intended a habeas petitioner's filing period to depend on so
arbitrary a linkage.

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exact a more stringent retroactivity requirement for second or

successive habeas petitions. Id.

Like 28 U.S.C. § 2255 ¶6, 28 U.S.C. § 2254(d) applies to

initial applications for post-conviction relief. Unlike section

2255, however, section 2254 relates to state prisoners. It

requires such petitioners to bear a different burden; they must

demonstrate that the state court's adjudication of the claim

"resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States." 28 U.S.C.

§ 2254(d)(1). That standard reflects congressional concern that,

in the interests of comity, federal courts should defer to

reasonable state-court judgments anent state prisoners — even when

those judgments are arguably erroneous. See Williams v. Taylor,

529 U.S. 362, 385-86 (2000); Sanna v. Dipaolo, 265 F.3d 1, 7-9 (1st

Cir. 2001).

Thus, by imposing these increased burdens on differently

situated habeas petitioners, sections 2254(d) and 2255 ¶8 function

as two of the AEDPA's gatekeeping provisions. Mora, 293 F.3d at

1218. 28 U.S.C. § 2255 ¶6 serves a different purpose. That

provision, in its entirety, deals exclusively with temporal

limitations for the filing of initial petitions by federal

prisoners. In terms, ¶6(3) does no more than designate a specific

limitation period for filing motions related to new rules or rights

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that pass through the Teague screen. Those that fail under Teague

by definition fail to "appl[y] to cases on collateral review." 28

U.S.C. § 2255 ¶6(3).

That resolves the question regarding Teague's continuing

relevance. The short of it is that Teague remains alive and well,

notwithstanding Congress's enactment of the AEDPA.

III. CONCLUSION

We need go no further.7 To recapitulate, we hold (1)

that the Apprendi rule has no retroactive application to cases in

which the judgment of conviction became final before Apprendi was

decided; and (2) that the passage of the AEDPA does not affect the

wonted application of Teague v. Lane to initial petitions for

habeas relief filed under 28 U.S.C. § 2255.

Affirmed.

7
Because our analysis disposes of the substance of the
petitioner's claims, we need not address the government's other
defenses (including, inter alia, whether the petitioner is
procedurally barred from bringing his claims).

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