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U.S. v. RICHARDSON

July 2, 2002

UNITED STATES OF AMERICA
V.
EDDIE RICHARDSON.



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).

ANALYSIS

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 becomes final;
(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, 673 (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 retroactivity question.*fn1

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 ...


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