Daniels v. US, No. 00-6298

• Decision Date: 25 June 2001
• Docket Number: No. 00-6298
• Citation: 254 F.3d 1180,2001 WL 709103
• Parties: (10th Cir. 2001) STEVE ALAN DANIELS, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1180

254 F.3d 1180 (10th Cir. 2001)

STEVE ALAN DANIELS, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

No. 00-6298

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

June 25, 2001

ON APPLICATION FOR AUTHORIZATION TO FILE SECOND OR SUCCESSIVE HABEAS MOTION UNDER 28 U.S.C. 2255 (W. Dist. Okla.)

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Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Assistant Federal Public Defender, with him on the briefs), Denver, Colorado, for Petitioner-Appellant.

Nina Goodman, Department of Justice, Washington, D.C. (Daniel G. Webber, Jr., United States Attorney, Leslie M. Maye, Assistant U.S. Attorney, Western District of Oklahoma and Bruce Green, United States Attorney and Paul G. Hess, Assistant U.S. Attorney, Eastern District of Oklahoma, and Michael A. Rotker, Department of Justice, Washington, D.C., with her on the brief), for Respondent-Appellee.

Before TACHA, Chief Judge, SEYMOUR, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Steve Alan Daniels requests leave to file an application for a writ of habeas corpus pursuant to 28 U.S.C. 2255, arguing the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), renders his sentence unconstitutional. Because Mr. Daniels has filed previous applications for habeas relief, we construed his motion as a request to file a second or successive application. We initially consolidated his pro se application with that of Edwin Browning, another prisoner seeking permission to file a second or successive habeas application based upon Apprendi. We appointed joint counsel and heard argument on both applications en banc. We then separated Mr. Browning's application for disposition, holding in that case that Apprendi's new rule has not yet been "made retroactive to cases on collateral review by the Supreme Court," as required by section 2255, and thus may not be used as a basis for second or successive habeas applications. Browning v. United States, 241 F.3d 1262 (10th Cir. 2001).

That holding does not entirely dispose of Mr. Daniels' case, however. Because this is his first habeas application following the amendment of section 2255 by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), he raises an additional question for our consideration: whether, assuming he can meet the pre-AEDPA requirements for raising an Apprendi claim in a successive petition under section 2255, applying AEDPA's standards to his application is impermissibly retroactive. After a detailed consideration of the requirements for raising new claims based on new rules of criminal procedure pre- and post-AEDPA, we conclude that no impermissible retroactive result will arise from the application of AEDPA's rules to Mr. Daniels' request.

I BACKGROUND

Steve Daniels was convicted in 1988 on several counts of racketeering and heroin distribution, receiving a twenty-one-year sentence for the drug charges and concurrent sentences of five to twenty years for the other crimes. He appealed, asserting, inter alia, that his sentence on the drug distribution charges exceeded the period authorized by the statute under which he was indicted. After this court upheld his conviction and sentence on appeal, United States v. Ware, 897 F.2d 1538 (10th Cir. 1990), Mr. Daniels filed two habeas petitions disputing other aspects of his sentence. Each petition was denied. See United States v. Daniels, No. 91-6333, 1992 WL 97997 (10th Cir. May 6, 1992); Daniels v. United States, No. 94-6289, 1995 WL 139398 (10th Cir. Mar. 31, 1995).

In seeking permission to file this latest habeas petition, Mr. Daniels contends his conviction and sentence are unconstitutional under Apprendi, which establishes that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 120 S.Ct. at 2362-63. Although Apprendi did not explicitly include indictment practices in this rule, it suggested that the relevant facts must be included in an indictment as well. See id. at 2356-57. We so held in United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000) (holding drug quantity must be included in indictment after Apprendi). Accord United States v. Keith, 230 F.3d 784, 786-87 (5th Cir. 2000) (same); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000) (same).

The amount of drugs underlying the charges against Mr. Daniels was not stated in his indictment nor presented to the jury for determination as required after Apprendi. He was, however, indicted for and convicted of distributing an identifiable quantity of heroin, which is prohibited under 21 U.S.C. 841(b)(1)(C). This statutory subsection sets forth a maximum sentence of twenty years, one year shorter than the twenty-one-year sentence Mr. Daniels received. Thus, if Apprendi were applied to his case on collateral review, Mr. Daniels would be resentenced within the lower twenty-year maximum on the drug charge. See Jones, 235 F.3d at 1237 (conviction for drug offense proper despite Apprendi violation, but resentencing required because sentence exceeded maximum of section 841(b)(1)(C)).

Under AEDPA, the rule of Apprendi is not applicable to second or successive habeas motions unless and until it has been "made applicable to cases on collateral review by the Supreme Court," as required by 28 U.S.C. 2255. In Browning, we interpreted the phrase "made applicable . . . by the Supreme Court" to require a specific collateral application by the Court, or words to that effect, and noted the Court has been silent with regard to collateral application of Apprendi. 241 F.3d at 1265-66. Under current habeas law, therefore, applications to file second or successive habeas petitions based on Apprendi will be dismissed until such time as the Supreme Court chooses specifically to declare the new rule applicable to cases on collateral review. Id. at 1266-67.

If AEDPA's requirements are applied to Mr. Daniels' application, his petition to assert an Apprendi claim must be denied. He argues, however, that because this is his first section 2255 habeas application after AEDPA's enactment, and because he could meet the pre-AEDPA standard for raising an Apprendi claim in a section 2255 second or successive habeas petition, applying AEDPA's new standard to deny this application would render the standard impermissibly retroactive.

Mr. Daniels filed his prior section 2255 petitions in 1991 and 1993, before section 2255 was amended by AEDPA in 1996. According to Mr. Daniels, when those earlier petitions were filed a prisoner could present a new legal claim in a second or successive petition under section 2255 if he could show both sufficient "cause" for his failure to raise the claim, i.e., "that the factual or legal basis for [the] claim was not reasonably available" earlier, and "actual prejudice" as a result of the claimed legal error. McCleskey v. Zant, 499 U.S. 467, 494 (1991). Mr. Daniels contends that he can meet this "cause and prejudice" test. In contrast, the new standard imposed by AEDPA requires reliance on 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 at para. 8. As discussed in Browning, applications seeking to raise an Apprendi claim must be denied under the new standard. Mr. Daniels therefore contends that applying the new standard will work a retroactive change which takes away his pre-AEDPA right to file a subsequent habeas petition based on Apprendi. As a result, he argues, AEDPA's section 2255 amendments should not be applied to his case.

The government, on the other hand, asserts that applying the AEDPA standard will have no actual retroactive effect because Mr. Daniels could not have satisfied the pre-AEDPA cause and prejudice test to excuse his earlier failure to raise the claim. The government further contends AEDPA's changes were procedural rather than substantive and thus constitute an exception to the usual retroactivity analysis. Finally, the government argues that, even assuming AEDPA altered the substantive standards under which we consider Mr. Daniels' application, there can be no impermissible retroactive effect because Mr. Daniels did not reasonably rely on the continued validity of the old law at the time he filed his initial habeas petition.

We hold, first, that AEDPA's purely procedural "gatekeeping" requirements are applicable to all petitioners seeking to file post-AEDPA second or successive habeas applications, regardless of when their initial habeas petitions were filed. We then assess the substantive requirements for raising claims based on new rules of criminal procedure before and after AEDPA. Ultimately, we conclude there is no retroactive effect in applying post-AEDPA substantive standards to Mr. Daniels.

II POST-AEDPA PROCEDURAL REQUIREMENTS

The AEDPA amendments changed both procedural and substantive aspects of federal habeas law. See In re Minarik, 166 F.3d 591, 599-600 (3rd Cir. 1999) (considering procedural and substantive retroactivity separately); Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997) (observing AEDPA contains both aspects). On a procedural level, a prisoner seeking to file a second or successive application for habeas relief must now apply directly to the court of appeals, which applies the proper AEDPA substantive standard and then grants or denies the prisoner permission to proceed in the district court. Before considering the post-AEDPA substantive standard, we recognize that, for the reasons set out below, there is no impermissible retroactivity in applying AEDPA's procedural amendments to habeas petitions. This is true...