U.S. v. Lopez

• Decision Date: 16 April 2001
• Docket Number: No. 99-31282,99-31282
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee. v. ARTURO LOPEZ, Defendant-Appellant,
• Court: U.S. Court of Appeals — Fifth Circuit

Page 427

248 F.3d 427 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee. v. ARTURO LOPEZ, Defendant-Appellant,

No. 99-31282

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

April 16, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Western District of Louisiana.

Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The panel's opinion filed December 5, 2000, published at 233 F.3d 884 (5th Cir. 2000), is withdrawn and the following opinion is substituted therefor.

Arturo Lopez ("Lopez") appeals from an order by the district court denying his 28 U.S.C. 2255 (2000) ("Section 2255" or " 2255") motion to vacate, set aside, or correct his sentence of 300 months' imprisonment and five years' supervised release stemming from convictions for engaging in a continuing criminal enterprise and seventeen counts of possession with intent to distribute marijuana in violation of 21 U.S.C. 841(a)(1) & (b)(1) and 848. Because we find that the district court did not err in denying Lopez's 2255 motion, we affirm the ruling.

Factual & Procedural History

Lopez was convicted by a jury for engaging in a continuing criminal enterprise ("CCE") on May 4, 1994. Lopez's conviction became final after this Court affirmed his conviction and sentence on direct appeal on November 21, 1995. On August 26, 1999, Lopez filed a motion to vacate, set aside, or correct his sentence pursuant to 2255,¹ arguing that his sentence for engaging in a CCE was void because of Richardson v. United States, 526 U. S. 813, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). Richardson was decided by the United States Supreme Court on June 1, 1999, and 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.² 21 U.S.C. 848(a).

The district court denied Lopez's 2255 motion because it determined that the motion was untimely. It found that Lopez failed to demonstrate that Richardson had been made retroactively applicable to cases on collateral review by the Supreme Court. The district court, however, granted him a certificate of appealability to appeal the denial of the 2255 motion because it determined that Lopez made a substantial showing that the issue of the retroactivity of Richardson constituted the denial of a constitutional right under 2255(3). Lopez now appeals the denial of the motion.

Discussion

Section 2255(3) states that defendants have a one-year limitation period to file a 2255 motion that runs from "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 . . ." 28 U.S.C. 2255(3). Therefore, in order to consider the threshold question of whether Lopez's motion was timely filed, we must look at the three aspects of 2255(3) as it relates to the instant case: 1) whether Richardson creates a "newly recognized" right; 2) that is retroactive on collateral review; and 3) that triggers the one-year statute of limitations on the date that Richardson was "initially recognized." See id.

I. A "Newly Recognized" Right

Considering the first aspect of 2255(3), we find that the holding in Richardson regarding jury unanimity instructions creates a new statutory right for purposes of this statute. This interpretation conforms with the structure of other AEDPA provisions, given that 2244(d)(1), which deals with a one-year statute of limitations for state prisoners filing 2254 habeas petitions, contains language identical to that of 2255(3), with the exception that the phrase "constitutional right" appears instead of the word "right." Moreover, other AEDPA provisions that refer to retroactivity on collateral review incorporate the phrase "a new rule of constitutional law." See, e.g., 2244(b)(2)(A); 2254(e)(2)(A)(i); 2255 (last paragraph). Given that Congress specifically limited the types of rights or rules within both 2255 and elsewhere in AEDPA, it is reasonable to conclude that the omission of "constitutional" as a modifier for "right" in 2255(3) was intentional, and hence, this section comprehends statutory rights as well.

Similarly, our sister circuits that have specifically addressed the definition of "right" in 2255(3) have also concluded that the term includes statutory rights. See, e.g., United States v. Lloyd, 188 F.3d 184, 187 (3d Cir. 1999) (holding that although Bailey v. United States, 516 U.S. 137 (1995),³ was a case involving statutory interpretation, the petitioner had timely filed under 2255(3) and stating "[t]hat the right is founded on statutory interpretation rather than on a new rule of constitutional law is of no moment for purposes of the limitation period under 2255"); United States v. Valdez 195 F.3d 544, 546 (9th Cir. 1999) (relying on the "plain language" of 2255(3) itself and on the existence of the adjective "constitutional" in an analogous limitations provision for state prisoners 2244(d)(1)(C)); Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000) (stating that "[i]n Bailey, the Supreme Court recognized . . . a new right within the meaning of section 2255(3)") (citing Lloyd and Valdez). Although the government concedes that other circuits have found 2255(3) to encompass rights resulting from statutory interpretation, it nonetheless argues that Richardson fails to establish such a right by noting that the Lloyd and Valdez courts did not address whether the right in 2255(3) had to be "newly recognized." We, however, agree with Haugh's implicit endorsement regarding Bailey that the phrase "newly recognized" indicates that the Supreme Court officially acknowledges the appropriate statutory meaning. Haugh, 210 F.3d at 1149 (stating that "[i]n Bailey, the Supreme Court recognized for the first time . . . [the non-criminal feature of] conduct that had previously supported a conviction in virtually every circuit, thus recognizing a new right within the meaning of section 2255(3)") (emphasis added). Moreover, the government's argument would result in all statutory rights being "non-new" rights, an approach that is inconsistent with Congress's desire not to limit 2255(3) strictly to constitutional rights.

II.The Retroactivity of Richardson Under 2255(3)

The district court expressly held that Richardson was not retroactively applicable to cases on collateral review because there is no Supreme Court case that makes it retroactive. We find that the district court erred in this determination for several reasons.

The relevant portion of 2255(3) states that the "right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. 2255(3). We first find that the district court erred when it read a "by the Supreme Court" limitation in the clause because the structure of the statute does not lend itself to such an interpretation. See, e.g., Bailey, 516 U.S. at 145 (1995) ("The meaning of statutory language, plain or not, depends on context." (internal quotations and citation omitted)); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (stating that assessment of plain meaning must also depend on the "language and design of the statute as a whole"). In 2255 itself and in other AEDPA provisions, Congress has provided this limitation by placing the phrase "by the Supreme Court" immediately subsequent to the retroactivity language. For instance, the final paragraph of 2255 states that one of two methods by which a petitioner can base a second or successive 2255 motion is a "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. 2255 (emphasis added). Identical language also appears in 2244 (b)(2)(A), which involves second or successive habeas corpus petitions under 2254, and in 2254(e)(2)(A)(i), which refers to when a federal court may hold an evidentiary hearing on a state prisoner's 2254 petition. Had Congress desired to limit 2255(3)'s retroactivity requirement, it would have similarly placed a "by the Supreme Court" limitation immediately after the phrase "made retroactively applicable to cases on collateral review" in 2255(3).⁴ Thus, we hold that 2255(3) does not require that the retroactivity determination must be made by the Supreme Court itself. We then conduct this retroactivity analysis and hold that Richardson is retroactively applicable on collateral review.

We similarly agree with our sister circuits and hold that Richardson is generally retroactively applicable on collateral review. See, e.g., Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000) (stating that "in light of Bousley,⁵ Richardson applies retroactively" on collateral review); Lanier v. United States, 220 F.3d 833, 838 (7th Cir. 2000) (reaching a similar conclusion with respect to the retroactivity of Richardson). The Supreme Court in Richardson conducted a routine analysis of 21 U.S.C. 848(a), the CCE statute at issue in the case, in interpreting the phrase "continuing series of violations." See 526 U.S. at 818 (stating that the first step "when interpreting a statute" is to look at the statutory language). The government argues that Teague v. Lane, 489 U.S. 288 (1989), which bars the retroactive use of "new constitutional rules of criminal procedure," controls this case. Id. at 310. We find, however, that Teague is inapplicable, because Richardson consisted of the Supreme Court's interpretation of a statute and is therefore retroactively available on collateral review. See Bousley, 523 U.S. at 620 (stating that Teague "is inapplicable to a situation in which [the Supreme] Court decides the meaning of a criminal statute enacted by Congress"). Therefore, the retroactivity prong of 2255(3) is satisfied in this case.

Our precedent moreover supports...