United States v. Clark

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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