Boyer v. U.S.

• Decision Date: 24 May 1995
• Docket Number: No. 94-2351,94-2351
• Citation: 55 F.3d 296
• Parties: Ronald L. BOYER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 296

55 F.3d 296

Ronald L. BOYER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 94-2351.

United States Court of Appeals Seventh Circuit.

Argued March 28, 1995.

Decided May 24, 1995.

Barry Levenstam, Jerold S. Solovy, Jacob I. Corre (argued), Jenner & Block, Chicago, IL, for Ronald L. Boyer.

Robert T. Coleman, Asst. U.S. Atty., Crim. Div., Fairview Heights, IL, for U.S.

Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

Ronald Boyer petitioned the district court for collateral relief under 28 U.S.C. Sec. 2255 on the grounds that his sentence was imposed pursuant to a provision that was beyond the United States Sentencing Commission's ("Commission") authority to promulgate. He had not raised this particular claim on direct appeal or in his one previous petition for postconviction relief. Finding that Boyer did not demonstrate sufficient cause for his failure to present this claim in the earlier proceedings, the district court dismissed the petition. We affirm.

In June of 1989, a federal grand jury returned a three-count indictment against Boyer stemming from a series of drug-related transactions. ¹ Counts One and Two charged Boyer with distributing in excess of sixty-eight grams of cocaine. Count Three charged that Boyer had conspired to possess more than five hundred grams of cocaine during the first week of June. After plea negotiations failed, the government dropped the first two counts and prosecuted Boyer solely on the conspiracy charge. The jury delivered a guilty verdict, and the matter proceeded to sentencing.

At sentencing, it was revealed that Boyer had previously been convicted on three counts of armed robbery and one count of second-degree murder. Grouping the robbery convictions together for sentencing purposes, the district court concluded that Boyer had two relevant prior convictions. The court then determined that Boyer's drug conspiracy conviction coupled with his criminal record rendered him a career offender under Sec. 4B1.1 of the United States Sentencing Guidelines ("Guidelines"). As a result, Boyer was sentenced to 216 months in prison to be followed by a four-year term of supervised release. ² On appeal, Boyer's conviction and sentence were affirmed. United States v. Boyer, 931 F.2d 1201 (7th Cir.), cert. denied, 502 U.S. 873, 112 S.Ct. 209, 116 L.Ed.2d 167 (1991). Boyer then filed his first habeas corpus petition in which he challenged his status as a career offender. That petition was dismissed by the district court, and we affirmed that decision. Boyer v. United States, 989 F.2d 502 (7th Cir.1993).

Now, Boyer has filed a second habeas corpus petition in which he raises a new claim. He contends that the Commission exceeded its statutory authority when it included drug conspiracies in its list of predicate offenses for career offender status. The district court dismissed this second petition because Boyer failed to present a compelling excuse for his failure to raise this claim in his prior petition. Once again, we affirm.

Section 4B1.1 of the Guidelines governs the classification of so-called career offenders. It designates as a career offender a defendant who: (1) is at least eighteen years old at the time of the instant offense; (2) is convicted in this instance of a felony that is either a crime of violence or a controlled substance offense; and (3) has at least two prior convictions of either a crime of violence or a controlled substance offense. United States Sentencing Commission, Guidelines Manual Sec. 4B1.1. The commentary to the Guidelines provides that a conspiracy to commit a crime of violence or a controlled substance offense is itself a predicate offense. U.S.S.G. Sec. 4B1.2, comment. (n. 1).

Title 28, Section 994 of the United States Code sets out the duties of the Commission. Contained in that section is the provision authorizing the Commission to prescribe special guidelines for career offenders. 28 U.S.C. Sec. 994(h). The provision is fairly explicit as to the felonies which are considered predicate crimes for career offender status:

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. 955a).

Notably absent from this provision is any mention of 21 U.S.C. Sec. 846, the statute which makes unlawful an attempt or conspiracy to enter a transaction involving narcotics covered by 21 U.S.C. Sec. 841. This discrepancy between 28 U.S.C. Sec. 994(h) and the commentary to Sec. 4B1.1 of the Guidelines lies at the heart of Boyer's claim. Boyer contends that Congress' intent to exclude drug conspiracies from career offender status is evident from the statute's language, and he concludes that the inclusion of conspiracy in its definition of career offender status was beyond the Commission's authority.

The collateral relief provided by 28 U.S.C. Sec. 2255 is the federal prisoner's analog to the petition for habeas corpus provided to state prisoners by 28 U.S.C. Sec. 2254. Relief is available if a prisoner can demonstrate that there are flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude, or result in a complete miscarriage of justice. Bischel v. United States, 32 F.3d 259, 263 (7th Cir.1994). The failure to raise issues in a petition for postconviction relief, however, bars a petitioner from raising these issues for the first time in a successive petition unless the petitioner can demonstrate sufficient cause for, and prejudice from, the failure to raise the claim earlier. Rule 9(b), Rules Governing 28 U.S.C. Sec. 2255 Proceedings.

We consider first the district court's holding that Boyer did not offer sufficient justification for his failure to make this claim in his previous petition. In Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984), the Supreme Court held, "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable ... procedures." The Court went on to articulate three examples of when a claim is not "reasonably available" so as to be considered novel. First, there is the obvious case where a decision of the Supreme Court explicitly overrules prior precedent. Id. at 17, 104 S.Ct. at 2910. Second, where a decision overturns a "longstanding and widespread practice to which [the Supreme Court] has not spoken, but which a near-unanimous body of lower court authority has expressly approved," a claim based on that decision would not have been reasonably available before then. Id. Finally, a claim may not have been reasonably available at earlier stages of the litigation if based on a new decision disapproving of a practice which the Supreme Court had previously sanctioned. Id.

Boyer contends that the D.C. Circuit Court of Appeals decision in United States v. Price, 990 F.2d 1367 (D.C.Cir.1993), in which the court accepted the identical argument made here by Boyer, falls squarely within the second of these categories. Before Price, other courts had accepted without comment the Guidelines' inclusion of conspiracy as a predicate offense. No court, however, had been presented with the question of whether the discrepancy between 28 U.S.C. Sec. 994(h) and the commentary to section 4B1.1 of the Guidelines undermined the Commission's authority to act as it did.

The Price court concluded that the language of section 994(h) reflected a sufficiently clear determination by Congress that career offender status should not be triggered by a conspiracy conviction. Hence, by including conspiracy as a predicate offense, the Commission "acted explicitly upon grounds that [did] not sustain its action." Id. at 1370. The court held, therefore, that the sentence was imposed illegally. Id.

Boyer contends that because the decision in Price, the rationale of which has since been adopted in some circuits and rejected in other circuits, ³ overturned the longstanding practice of including conspiracy as a predicate offense, his current petition for relief should be evaluated on the merits because it states a novel claim under Reed. Boyer asks that we take this opportunity to adopt Price as the law in this circuit, overruling the current contrary practice. See United States v. Garrett, 45 F.3d 1135 (7th Cir.1995) (holding that the inclusion of conspiracies as predicate offenses falls within the Commission's broad delegation under 28 U.S.C. Sec. 2255(a)); United States v. Damerville, 27 F.3d 254 (7th Cir.) (same), cert. denied, --- U.S. ----, 115 S.Ct. 445, 130 L.Ed.2d 355 (1994).

We believe Boyer's claim fails to overcome the threshold matter of retroactivity as set forth by the Supreme Court's decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In fact, in light of Teague, the continued vitality of Reed is questionable at best. See Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir.1990). In Teague, the Court decided whether a new rule, defined as a rule which commands a result "not dictated by precedent existing at the time the defendant's conviction became final," id. at 301, 109 S.Ct. at 1070, deserves retroactive effect. After contrasting the concerns present in a direct appeal with those present in a collateral proceeding, the Court concluded that although new rules were to be applied retroactively to cases on direct review, they should not be applied retroactively to cases on collateral review. Id. at 310, 109 S.Ct. at 1075.

Boyer's claim demonstrates the tension between Reed and Teague. On the one hand, to take advantage of the Reed definition of cause, his claim must rely on a new development in the law which occurred subsequent to his earlier challenges....