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, 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
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