United States District Court, Northern District of Illinois, Eastern Division
July 2, 2002
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Holderman, District Judge.
MEMORANDUM OPINION AND ORDER
This case comes on remand from the United States Court of
Appeals for the Seventh Circuit. Petitioner Eddie Richardson
("Richardson") originally filed a writ of habeas corpus pursuant
to 28 U.S.C. § 2255 with this court. In his petition, Richardson
raised two claims. Richardson's first claim was that he was
"resentenced" by this court in absentia after the United
States Supreme Court ruled on his case in Richardson v. U.S.,
526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999).
Richardson's second claim raised a violation under Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). This court denied Richardson's entire petition as
untimely. The Seventh Circuit held that Richardson's
"resentencing" claim was untimely, but vacated this court's
judgment as to Richardson's Apprendi claim. The Seventh
Circuit held that Richardson's Apprendi claim was not untimely
since "the statute of limitations of an Apprendi claim does
not begin until this court announces its retroactive application
to cases on collateral review." Eddie Richardson v. USA, No.
01-3837, Order at 2 (7th Cir. April 30, 2002). The Seventh
Circuit granted a certificate of appealability and remanded the
matter "for a determination whether Apprendi can be applied
retroactively under Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989)." Id. After a review of relevant
case law, this court believes that Apprendi cannot be applied
retroactively under Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989).
Richardson's petition is governed by 28 U.S.C. § 2255 as
amended by the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"). See Lindh v. Murphy, 96 F.3d 856, 866 (7th
Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320,
117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Paragraph 6 of § 2255 provides:
A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run
from the latest of —
(1) the date on which the judgment of conviction
(2) the date on which the impediment to making a
motion created by 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 discovered
through the exercise of due diligence.
As the Seventh Circuit's has indicated, the question of
whether Richardson's Apprendi claim is timely court comes
under ¶ 6(3). Under ¶ 6(3), an initial petition raising an
Apprendi claim may be filed within a year of the decision that
makes Apprendi "retroactively applicable to cases on
collateral review[.]" See Ashley v. U.S., 266 F.3d 671
(7th Cir. 2001). The Seventh Circuit, however, has not decided
whether Apprendi applies retroactively on collateral review,
266 F.3d at 674, but the Seventh Circuit has held that a
district court may determine whether such a rule, like
Apprendi, applies retroactively on collateral review. Id.
Accordingly, the timeliness of Richardson's petition under §
2255 ¶ 6(3) depends solely on this court's resolution of the
The retroactivity of new rules of criminal procedure is
governed by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989). Although the Seventh Circuit has not decided
whether Apprendi applies retroactively on collateral review
under Teague, four other courts of appeals have held that it
does not. McCoy v. United States, 266 F.3d 1245, 1256-58 (11th
Cir. 2001); United States v. Sanders, 247 F.3d 139, 146-51
(4th Cir. 2001); United States v. Moss, 252 F.3d 993 (8th Cir.
2001); Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000). No court
of appeals has held Apprendi retroactive on collateral attack
and the Seventh Circuit has already expressed its doubts that is
does. See U.S. v. Smith, 241 F.3d 546, 549 (7th Cir. 2001)
(explaining that it is by no means clear that Apprendi applies
retroactively under Teague since few constitutional arguments
apply retroactively on collateral attack.).*fn2
In Teague, the Supreme Court established a three-step
inquiry to determine when new rules of criminal procedure apply
retroactively on collateral review. See 489 U.S. at 288, 109
S.Ct. 1060, 103 L.Ed.2d 334. First, a court must determine the
date on which the defendant's conviction became final. See
O'Dell v. Netherland, 521 U.S. 151, 156-57, 117 S.Ct. 1969, 138
L.Ed.2d 351 (1997) (citing Lambrix v. Singletary,
520 U.S. 518, 527, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997)). Second, a
court must decide whether the Supreme Court's ruling indeed
constitutes a "new rule" of constitutional criminal procedure.
Third, if the rule is new, then a court must decided whether the
new rule falls within two narrow exceptions. See O'Dell,
521 U.S. 151, 156-157, 117 S.Ct. 1969, 138 L.Ed.2d 351.
First, Richardson's conviction became final on May 23, 1995.
Second, the rule announced in Apprendi does constitute a
procedural rule, as opposed to a substantive rule, because the
Apprendi rule dictates what fact-finding procedure must be
employed to ensure a fair trial. Teague, 489 U.S. at 312, 109
S.Ct. 1060, 103 L.Ed.2d 334; Apprendi, 120 S.Ct. at 2354 ("The
substantive basis for New Jersey's enhancement is thus not at
issue; the adequacy of New Jersey's procedure is.").
Additionally, the procedural rule set out in Apprendi is
definitely a "new" rule
because in 1995, when Richardson's conviction became final, a
reasonable jurist would not have felt compelled to adopt a rule
by which any factor which increases the maximum punishment for
an offense must be found by a jury beyond a reasonable doubt.
See O'Dell, 521 U.S. at 15657, 117 S.Ct. 1969, 138 L.Ed.2d
351; see also Ashley v. U.S., 266 F.3d 671, 672 (7th Cir.
2001) ("No one could doubt that Apprendi `newly' or
`initially' recognizes a constitutional right."). Third, since
the procedural rule set out in Apprendi is indeed "new", the
final step in the Teague analysis requires this court to
determine whether the rule falls within one of the two narrow
exceptions to the Teague doctrine. See O'Dell, 521 U.S. at
156-57, 117 S.Ct. 1969, 138 L.Ed.2d 351.
Teague's first limited exception allows new rules that
forbid "criminal punishment of certain primary conduct," and new
rules that prohibit "a certain category of punishment for a
class of defendants because of their status or offense" to be
applied retroactively. See O'Dell, 521 U.S. at 157, 117 S.Ct.
1969, 138 L.Ed.2d 351. Teague's second limited exception
allows new rules that seriously diminish the likelihood of an
inaccurate conviction to be applied retroactively. Teague, 489
U.S. at 313, 109 S.Ct. 1060, 103 L.Ed.2d 334. In this case, the
first exception clearly does not apply because Apprendi did
not place drug violations beyond the scope of the federal
government's authority to proscribe. As a result, for Apprendi
to apply retroactively to Richardson's petition, the new
procedural rule announced in Apprendi must fall under
Teague's second exception.
Under the second exception, there can be no doubt that
Apprendi seriously diminishes the likelihood of an inaccurate
conviction. How much Apprendi seriously diminishes this
likelihood is debatable, compare Moss, 252 F.3d at 999 ("[I]t
seems arguable whether Apprendi increases the reliability of
the guilt-innocence determination at all because the rule does
not protect the innocent from conviction, it instead limits the
sentencing exposure of those who have been validly convicted.")
with Mills, 2002 WL 424635 at *4 (arguing that by increasing
the burden of proof, Apprendi does indeed `protect the
innocent from conviction' and diminish the likelihood of
inaccurate convictions because the defendant, while guilty of
the lesser offense, is innocent of the greater offense carrying
a greater sentence), however, a determination of the degree by
which Apprendi seriously diminishes inaccuracy is beyond that
which is required under the second exception of Teague.
Furthermore, although a finding that Apprendi does seriously
diminishing the likelihood of inaccurate convictions is
necessary for a new rule to be applied retroactively, simply
diminishing the inaccuracy of convictions alone is not
sufficient. Rather, a "rule that qualifies under this [second]
exception must not only improve accuracy, but also alter our
understanding of the bedrock procedural elements essential to
the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227,
242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (internal quotations
omitted). In other words, the second exception should be
reserved for watershed rules of criminal procedure. Teague,
489 U.S. at 311, 109 S.Ct. 1060.
The question of whether the rule announced in Apprendi
constitutes a new watershed rule of criminal procedure is one
that gives this court pause. On first impression, this court is
inclined to hold that the Supreme Court in Apprendi announced
a watershed rule. Although Apprendi merely applies to a
limited number of criminal defendants who are susceptible to
harsher punishment because certain aggravating factors present
in their particular case operate as `the functional
equivalent of an element of a greater offense.' Apprendi, 530
U.S. at 494, n. 19, 120 S.Ct. 2348. For that group of criminal
defendants the rule announced in the Apprendi holding is a
watershed rule because those defendants now enjoy the
constitutional right to a jury determination on
sentencing-enhancing factors based on proof beyond a reasonable
doubt. As such, for that group of criminal defendants, the rule
announced in Apprendi strengthens the proscription against
deprivation of liberty without due process of law, and in some
cases literally means the difference between life and death.
See e.g., Ring v. Arizona, ___ U.S. ____, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002) (Ginsberg, J.) (holding that Arizona's
capital sentencing scheme violates the Sixth Amendment's jury
trial guarantee by entrusting a judge to find aggravating
circumstances necessary for the imposition of the death
penalty); see generally, Moss, 252 F.3d at 1004 (Arnold, J
dissenting) (arguing that Apprendi recognizes bedrock
procedures that are implicit in the concept of ordered liberty).
In light of the magnitude by which Apprendi affects those who
come under its protection, this court is slow to declare that
Apprendi is not a rule that marks a dramatic change in this
country's criminal justice system simply because the rule
announce in Apprendi is not as broad as some reasonable
jurists think it should. See e.g., U.S. v. Sanders,
247 F.3d 139, 150 (4th Cir. 2001) (finding that Apprendi is not a
watershed decision in part because in comparing the principle
announced in Apprendi with the paradigmatic watershed
principle announced in Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963) the latter, which established an
affirmative right to counsel in all felony cases, was remarkable
in part because of its sweeping breadth).
Despite its breadth or magnitude, however, this court holds,
nonetheless, that the rule announced in Apprendi is not a
watershed determination because an Apprendi violation has not
been held to be structural error requiring per se reversal. A
structural error is an error which "deprive[s] defendants of
basic protections without which a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence . . . and no criminal punishment may be regarded as
fundamentally fair." Neder v. United States, 527 U.S. 1, 8-9,
119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal quotations
omitted). Although the Supreme Court has had no occasion to
equate a watershed rule with structural error, this court agrees
with the Fourth Circuit in its explanation that "finding
something to be a structural error would seem to be a necessary
predicate for a new rule to apply retroactively under Teague."
247 F.3d at 150-51. Accord Moss, 252 F.3d at 10001001;
McCoy, 266 F.3d at 1249-52.
Moreover, a significant number of federal circuit courts,
including the Seventh Circuit, have subjected Apprendi claims
to harmless and plain error review. See, e.g., United States v.
Nance, 236 F.3d 820, 82324 (7th Cir. 2000); United States v.
Terry, 240 F.3d 65, 74-75 (1st Cir. 2001); United States v.
White, 240 F.3d 127 (2d Cir. 2001); United States v. Lewis,
235 F.3d 215, 218 (4th Cir. 2000); United States v. Meshack,
225 F.3d 556, 575 (5th Cir. 2000); United States v.
Candelario, 240 F.3d 1300 (11th Cir. 2001). Accordingly, this
court believes that subjecting Apprendi claims to harmless and
plain error review is a clear indication that it is possible for
a criminal defendant to have a fair and accurate trial without
the new procedural protection offered by Apprendi. As the
Eighth Circuit explains in comparing a watershed exception to a
structural error, the watershed exception is a habeas principle
and carries with it the Supreme Court's precept that
final convictions should be preserved. Moss, 252 F.3d 993,
1001 (8th Cir. 2001). Structural error, in contrast, essentially
permits a defendant to raise an argument on appeal that was not
raised during the trial. Id. Thus, it is logical that a
watershed rule must be more "fundamental" than a structural
error. Id. As a result, it is also logical that since an
Apprendi violation has not be held to be structural error, the
rule announced in Apprendi cannot fall within Teague's
exception for watershed rules.
For all the above stated reasons, this court holds that the
rule set out in Apprendi does not apply retroactively on
collateral review under Teague. Accordingly, Richardson's
Apprendi claim is dismissed with prejudice as untimely. This
case is dismissed in its entirety. All other pending motions are