Lang v. U.S.

• Decision Date: 24 January 2007
• Docket Number: No. 05-2700.,05-2700.
• Citation: 474 F.3d 348
• Parties: Brett LANG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

474 F.3d 348

Brett LANG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 05-2700.

United States Court of Appeals, Sixth Circuit.

Argued: December 7, 2006.

Decided and Filed: January 24, 2007.

ARGUED: Patricia A. Maceroni, Mt. Clemens, Michigan, for Appellant. Wayne F. Pratt, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Patricia A. Maceroni, Mt. Clemens, Michigan, for Appellant. Wayne F. Pratt, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before CLAY, ROGERS, and SUTTON, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Petitioner Brett Lang appeals the district court's denial of his motion to vacate his resentencing pursuant to 28 U.S.C. § 2255. Petitioner contends that because he argued that the principle announced in Booker applied to his resentencing, he is entitled to have Booker apply retroactively despite the fact that Booker was decided after his resentencing became final. We disagree and AFFIRM the decision of the district court.

I.

Petitioner was the second most culpable member of a major drug conspiracy, which distributed cocaine and heroin for approximately four years in 1988 through 1991. The government, using wiretaps, raids, and undercover buys disrupted the conspiracy, which led to the indictment of sixteen individuals.

Petitioner was indicted on November 12, 1991. The indictment, as modified by the superseding indictment of February 13, 1992, charged Petitioner with eight counts involving drugs, firearms, and the unlawful use of a telephone facility. Specifically, Petitioner was charged with one count of conspiracy to possess with the intent to distribute heroin and cocaine under 21 U.S.C. § 846; one count of aiding and abetting the distribution of heroin under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; two counts of possession with the intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1); two counts of using a firearm during a drug trafficking offense under 18 U.S.C. § 924(c); and two counts of unlawful use of a telephone under 21 U.S.C. § 843(b). Petitioner pled not guilty, and after a jury trial, was convicted on July 2, 1992 of five of the charges against him. This included conspiracy to possess with the intent to distribute cocaine and heroin, two counts of possession with intent to distribute a controlled substance, and two counts of using a firearm during a drug trafficking offense. Petitioner was sentenced on November 25, 1992 to a total of 384 months imprisonment: 324 months as to the conspiracy count, 240 months as to each possession count to run concurrently with each other and the conspiracy count, and 60 months as to the firearms count, to run consecutively to the other counts.¹ Petitioner appealed, and the Sixth Circuit affirmed in an unpublished opinion on November 8, 1994. United States v. Lang, 39 F.3d 1182 (6th Cir.1994) (unpublished).

On August 22, 1995, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255. On March 19, 1996, the district court denied that motion. This Court affirmed that denial on March 18, 1997. Lang v. United States, 108 F.3d 1377 (6th Cir.1997) (unpublished).

Petitioner subsequently filed a second motion to vacate under § 2255, which the district court transferred to the court of appeals pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, § 105, 110 Stat. 1214, 1220. This Court dismissed Petitioner's second motion to vacate without prejudice for want of prosecution on December 17, 1996. By order of April 30, 1999, this Court granted Petitioner permission to file a successive § 2255 motion limited to the question of whether Petitioner's firearm conviction was still valid under Bailey v. United States, 516 U.S. 137, 150, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that "use" in a statute prohibiting the use of a firearm during a drug offense means that a defendant "actively employed" such firearm).

On May 24, 2000, the district court vacated Petitioner's conviction for the firearm offense, and ordered that Petitioner be resentenced. Petitioner was resentenced on June 13, 2001. Prior to resentencing, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) was decided, and the district court proceeded at sentencing under the assumption that Apprendi applied. The district court sentenced Petitioner to a total of 320 months: 240 months on the conspiracy count, and 80 months on each of the possession counts, to run concurrently to each other but consecutively to the conspiracy count. Petitioner appealed his conviction, which was affirmed by this Court in United States v. Wingo, 76 Fed.Appx. 30 (6th Cir.2003) (unpublished). As relevant here, Petitioner challenged the imposition of consecutive sentences, arguing that the drug quantities that triggered the mandatory "stacking" provisions of the sentencing Guidelines were based on facts that were not alleged in the indictment and submitted to a jury.² Id. at 35. This Court, although labeling Petitioner's challenge "clever," concluded that he could show no Apprendi error because the district court's sentence was within the statutory maximum for that count. Id. The court thus affirmed Petitioner's sentence. Id. at 41. Petitioner appealed to the Supreme Court, which denied certiorari. See Lang v. United States, 541 U.S. 967, 124 S.Ct. 1732, 158 L.Ed.2d 413 (2004). Petitioner petitioned for rehearing of that denial, which was denied on May 17, 2004. See Lang v. United States, 541 U.S. 1058, 124 S.Ct. 2202, 158 L.Ed.2d 762 (2004). On June 24, 2004, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and subsequently decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

In light of this new precedent, Petitioner moved again for relief under § 2255, arguing, inter alia, that his sentence of June 13, 2001 was unconstitutional because of the holdings of Blakely and Booker. The government moved to transfer this case to the court of appeals, arguing that Petitioner's motion was a successive petition pursuant to § 2255 and therefore must be certified by a panel of the court of appeals. The district court denied the motion to transfer, concluding that it was Petitioner's first motion to vacate his June 13, 2001 sentence. On September 20, 2005, the district court denied Petitioner's motion on its merits, holding that Booker was not retroactive and thus did not apply to Petitioner, because his resentencing became final before Blakely was decided. Petitioner moved for rehearing, which was denied on November 7, 2005. Petitioner filed a timely notice of appeal on December 5, 2005.

II.

The government argues that Petitioner's motion to vacate should be dismissed as a second or successive motion that was improperly filed in the district court. Whether or not Petitioner's motion is "second and successive" within the meaning of § 2255 is, like all questions of statutory interpretation, an issue that we review de novo. See United States v. Morris, 203 F.3d 423, 424 (6th Cir.2000) (citing United States v. Hans, 921 F.2d 81, 82 (6th Cir.1990)).

Section 2255 provides that "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." Section 2244(b)(3) provides a procedure for filing a second or successive motion, which requires, inter alia, that the motion originate in the court of appeals and be authorized by a three-judge panel. Moreover, in order for the court of appeals to approve the filing of a second or successive motion, the petitioner must allege certain substantive facts, which Petitioner here undisputedly cannot show. § 2244(b)(2). If we were to construe Petitioner's motion as a "second or successive" motion within the meaning of § 2255, Petitioner's motion would not have been properly filed, and should be dismissed on that basis.

Courts have not, however, construed "second or successive" to encompass all § 2255 motions or habeas petitions that are "numerically" second in the sense that they are literally the second motion filed.³ In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006); see also Slack v. McDaniel, 529 U.S. 473, 487-88, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (holding that second habeas petition raising claims dismissed in previous "mixed" petition was not second or successive); Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (holding that habeas petition raising claim previously dismissed as premature was not second or successive). In Bowen, this Court held that a state habeas petitioner did not present a "second or successive" petition where he filed a second petition raising an ineffective assistance of counsel claim that he was barred from raising in his original petition for habeas corpus. 436 F.3d at 705. The Bowen court reasoned that "courts defining `second or successive' generally apply abuse of the writ decisions, including those decisions that predated AEDPA." Id. at 704. The court continued: "Under the abuse of the writ doctrine, a numerically second petition is `second' when it raises a claim that could have been raised in the first petition but was not so raised, either due to deliberate abandonment or inexcusable neglect." Id. (citing McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)). Implicitly affirming this practice, the court applied that standard to Bowen's claim. Id. at 706.

Other courts of appeals have applied similar principles and held that § 2255 motions or petitions for habeas corpus were not "second or successive" when the second action challenges a judgment or portion of a judgment that arose as a result of a previous successful action. See Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000) (per curiam) ("Every circuit that has addressed the issue has agreed that, under the...