[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 15, 2006
No. 05-15360 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00226-CR-KOB-HGD
BERNHARD DOHRMANN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 15, 2006)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
DUBINA, Circuit Judge:
Appellant Bernhard Dohrmann appeals the district court’s order denying his
petition for a writ of habeas corpus, brought under 28 U.S.C. § 2241. On appeal,
Dohrmann argues that the district court erred by refusing to consider his argument
that the sentencing court’s initial restitution calculation exceeded the maximum
restitution amount allowed under 18 U.S.C. § 3663. Moreover, he argues that the
district court erred in finding that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), is inapplicable to restitution orders and does not
apply retroactively. Finally, he raises for the first time in this appeal an ineffective
assistance of counsel claim.
I. Denial of a 28 U.S.C. § 2241 Petition
The availability of habeas relief under 18 U.S.C. § 2241 is a question of law
that we review de novo. Sawyer v. Holder, 326 F.3d 1363, 1365 n.4 (11th Cir.
2003). Dohrmann’s appeal as it pertains to the denial of his § 2241 petition
implicates three major issues: (1) whether a petitioner can challenge in a § 2241
petition an initial restitution calculation on the basis that it violated 18 U.S.C.
§ 3663; (2) whether Apprendi applies to restitution orders, and (3) whether
Apprendi applies retroactively in the context of a § 2241 petition.
A. Whether Dohrmann can make a collateral challenge to his initial restitution
calculation
Although we have not specifically addressed whether a petitioner can
challenge a restitution order in the context of a 28 U.S.C. § 2241 petition, we have
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held that 28 U.S.C. § 2255 may not be utilized by a person in federal custody to
attack only the restitution portion of his sentence because § 2255 affords relief only
to those claiming the right to be released from custody. Blaik v. United States, 161
F.3d 1341, 1343 (11th Cir. 1998). Moreover, we have held that a petitioner who
failed to contest a restitution order either at sentencing or on direct appeal cannot
for the first time challenge the district court’s initial restitution calculation in a
collateral proceeding, absent exceptional circumstances. Cani v. United States,
331 F.3d 1210, 1213-14 (11th Cir. 2003). As to the exceptional circumstances, we
noted that such circumstances are analogous to a showing of cause and prejudice to
overcome a procedural default for raising a claim for the first time in a habeas
corpus petition. Id. at 1214 n.2.
We conclude from the record here that Dohrmann cannot challenge the
sentencing court’s initial restitution calculation because he has failed to
demonstrate the exceptional circumstances required in order for this court to hear
such an argument in a collateral proceeding. He has not made any showing that is
analogous to a showing of cause and prejudice to overcome a procedural default
for failing to raise a claim.
B. Whether Apprendi applies to restitution orders
In Apprendi, the Supreme Court pronounced that “[o]ther than the fact of a
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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, 120 S. Ct. at 2362-63. We have not directly
addressed whether Apprendi applies to restitution orders. However, other circuits
addressing this issue have held that Apprendi does not apply, primarily because the
restitution statute, 18 U.S.C. § 3663, does not have a prescribed statutory
maximum. See United States v. Carruth, 418 F.3d 900, 902-04 (8th Cir. 2005)
(under the restitution statute there was “no specific or set upper limit for the
amount of restitution,” in contrast to criminal statutes which provided maximum
terms of imprisonment and fine amounts); United States v. Syme, 276 F.3d 131,
159 (3d Cir. 2002) (Apprendi rule does not apply to restitution orders made
pursuant to 18 U.S.C. § 3663 because Apprendi applied only to criminal penalties
that increase a defendant’s sentence “beyond the prescribed statutory maximum”);
United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000) (Apprendi does not
apply to restitution orders on the bases that (1) restitution is a civil penalty, not a
criminal one and, therefore Apprendi does not apply because it is a rule of criminal
procedure; and (2) § 3663 does not prescribe a statutory maximum for restitution);
United States v. Wooten, 377 F.3d 1134, 1144 n.1 (10th Cir. 2004) (Apprendi did
not apply to a restitution order because the amount ordered did not exeed any
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prescribed statutory maximum); United States v. Bearden, 274 F.3d 1031, 1042
(6th Cir. 2001) (restitution orders are not affected by Apprendi because the
restitution statutes do not specify a statutory maximum).
We agree with the holdings of our sister circuits and adopt their reasoning
in holding that Apprendi does not apply to a restitution order.
C. Whether Apprendi applies retroactively to 2241 petitions
We have not addressed directly the issue of whether Apprendi applies
retroactively in the context of a § 2241 petition. However, we have held that
Apprendi does not apply retroactively to claims raised in a § 2255 motion. McCoy
v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001). In McCoy the
petitioner-appellant filed an initial § 2255 motion arguing that the indictment's
failure to allege a specific drug quantity violated Apprendi. Id. at 1247. In
determining whether Apprendi applied retroactively, we conducted an analysis
under the test established in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.
Ed. 2d 334 (1989). Id. at 1255-58. First, we determined Apprendi was a new rule
of criminal procedure, and that under Teague new rules of criminal procedure
could not generally be applied retroactively to final convictions. Id. at 1255-56.
We then considered whether Apprendi fell within the two exceptions to Teague’s
non-retroactivity rule. Id. at 1256-58. We concluded that Apprendi did not fall
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within either exception because Apprendi (1) did not decriminalize any class of
conduct or prohibit a certain category of punishment for a class of defendants, and
(2) was not sufficiently fundamental to fall within Teague’s second exception. Id.
We also affirmed the dismissal of McCoy’s § 2255 motion on the alternative
ground that he was procedurally barred from challenging his sentence on Apprendi
grounds because he failed to raise the argument on direct appeal. Id. at 1258-59.
We noted that McCoy had to show both “cause” and “actual prejudice” to excuse
his failure to raise the claim on direct appeal and that he could not do so. Id. Also,
we have recently held that claims involving United States v. Booker, 543 U.S. 220,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) do not apply retroactively to an initial §
2255 motion. Varela v. United States, 400 F.3d 864, 868 (11th Cir.), cert. denied,
126 S. Ct. 312 (2005).
While we have not expressly decided whether Apprendi applies retroactively
in a § 2241 petition, other circuits have addressed this issue and have held that
Apprendi does not apply retroactively to claims brought under 28 U.S.C. § 2241.
Love v. Menifee, 333 F.3d 69, 74 (2d Cir. 2003); San-Miguel v. Dove, 291 F.3d
257, 258-60 (4th Cir. 2002); United States ex rel. Perez v. Warden, FMC
Rochester, 286 F.3d 1059, 1060-62 (8th Cir. 2002).
We agree with the holdings of our sister circuits and adopt their reasoning in
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holding that Apprendi does not apply retroactively in the context of a 28 U.S.C. §
2241 petition.
II. Ineffective assistance of counsel
Whether a defendant has received effective assistance of counsel is a mixed
question of fact and law. See Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir.
2000). We review the district court’s findings of fact for clear error while applying
de novo review to questions of law. See id. We generally will not consider a
habeas claim raised for the first time on appeal. See Walker v. Jones, 10 F.3d
1569, 1572 (11th Cir. 1994).
Dohrmann attempts to raise his ineffective assistance of counsel claim for
the first time in this appeal. Because he raises his claim for the first time on appeal
from the denial of his § 2241 petition, we will not consider Dohrmann’s ineffective
assistance of counsel claim. See Walker, 10 F.3d at 1572.
III. Conclusion
For the above-stated reasons, we affirm the district court’s order denying
Dohrmann’s 28 U.S.C. § 2241 petition.
AFFIRMED.
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