Goode v. U.S.

• Decision Date: 10 May 2002
• Docket Number: No. 01-1340.,01-1340.
• Citation: 305 F.3d 378
• Parties: Kevin Antonio GOODE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

305 F.3d 378

Kevin Antonio GOODE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-1340.

United States Court of Appeals, Sixth Circuit.

Submitted: April 24, 2002.

Decided and Filed: May 10, 2002.^*

COPYRIGHT MATERIAL OMITTED

Kevin Antonio Goode (briefed), Sheridan, OR, pro se.

David J. Debold, Asst. U.S. Atty., Detroit, MI, Mark C. Jones (briefed), Asst. U.S. Atty., Flint, MI, for Respondent-Appellee.

Before MARTIN, Chief Circuit Judge; COLE, Circuit Judge; SHARP, District Judge.^**

OPINION

COLE, Circuit Judge.

This action stems from the conviction and sentence of Petitioner-Appellant Kevin Antonio Goode of four counts involving a conspiracy to distribute cocaine, appealed pursuant to the denial of a 28 U.S.C. § 2255 motion to vacate, set aside, or correct the sentence. In light of Goode's two prior felony drug convictions and the court's finding that he was responsible for 50 grams or more of crack cocaine, Goode was sentenced to life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). Goode argues, pro se, that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his sentence was improper because the drug quantity was not submitted to the jury for determination beyond a reasonable doubt. Specifically, Goode submits that the district court was incorrect in concluding that Apprendi does not apply retroactively to initial § 2255 motions. Goode also argues that the district court erred when it failed to address the merits of his argument that the second superseding indictment is defective because it fails to recite the essential elements required to grant the district court jurisdiction to impose the current sentence.

This appeal presents two issues for our review: (1) whether the rule of Apprendi should be applied retroactively to initial § 2255 motions; and (2) whether the district court committed reversible error in failing to address the effectiveness of the second superseding indictment. We conclude that Apprendi does not apply retroactively to initial § 2255 motions as it is not a watershed rule of criminal procedure. We also conclude that Apprendi does not create jurisdictional problems for the federal district courts to hear cases where the drug quantity is not specified in the indictment. Accordingly, we AFFIRM the judgment of the district court.

I. BACKGROUND

On January 29, 1997, a second superseding indictment filed by the grand jury charged Petitioner Kevin Goode with the following counts: (1) conspiracy to distribute cocaine (count one); (2) possession with intent to distribute cocaine, and aiding and abetting cocaine distribution (count five); (3) felon in possession of a firearm (count six); and (4) possession of a firearm with an obliterated serial number (count seven). Four other individuals also were charged in the indictment for their involvement in a conspiracy alleged to have run from July 1996 through January 1997 in the vicinity of Flint, Michigan. On April 21, 1997, a jury convicted Goode on all counts.

Goode had two prior felony drug convictions.¹ Because of the prior convictions, Goode's sentence was enhanced pursuant to 21 U.S.C. §§ 841 and 851. On October 15, 1997, the district court imposed the following sentence: (1) life imprisonment on count one; (2) 210 months on count five; (3) 120 months on count six; and (4) sixty months on count seven.² The sentences imposed pursuant to counts five, six, and seven were to run concurrent to the life imprisonment sentence imposed on count one. Upon the completion of the term of imprisonment, Goode was sentenced to a ten-year term of supervised release.

Goode's direct appeal of his conviction was unsuccessful, ultimately resulting in the United States Supreme Court denying his writ of certiorari on October 18, 1999.³ On October 17, 2000, Goode filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The district court denied this motion in an opinion and order issued on January 23, 2001. Goode filed a timely notice of appeal on February 23, 2001, and the district court granted his application for a certificate of appealability on March 15, 2001.

II. DISCUSSION

A. Standard of Review

In reviewing a district court's denial of a motion under § 2255, we apply a clearly erroneous standard to its factual findings and review its conclusions of law de novo. See Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999); Rattigan v. United States, 151 F.3d 551, 554 (6th Cir.1998); Nagi v. United States, 90 F.3d 130, 134 (6th Cir.1996); Cardinal v. United States, 954 F.2d 359, 362 (6th Cir.1992). It is a "well-settled principle that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (citation omitted). When the petitioner appealing under § 2255 has procedurally defaulted his contentions by failing to assert them on direct appeal or via a previously litigated habeas application, he must further prove either (1) good cause for failing to do so and that he would suffer actual prejudice if his arguments are deemed precluded; or (2) that he is actually innocent of the subject offense. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Floyd v. Alexander, 148 F.3d 615, 618 (6th Cir.1998).

B. Analysis

1. The rule of Apprendi is not retroactively applicable to initial § 2255 motions, because Apprendi does not create a new "watershed rule" that improves the accuracy of determining the guilt or innocence of a defendant.

Apprendi establishes that "other than the facts of a prior conviction, 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." 530 U.S. at 490, 120 S.Ct. 2348. With respect to drug convictions under 21 U.S.C. § 841, this Court has held that the quantity and type of drugs attributable to a defendant must be submitted to the jury for a determination beyond a reasonable doubt. See United States v. Page, 232 F.3d 536, 542 (6th Cir.2000); United States v. Flowal, 234 F.3d 932, 936 (6th Cir.2000). Because Goode's sentence was increased beyond the thirty year⁴ statutory maximum under § 841(b)(1)(C) based upon the district court's finding by a preponderance of the evidence that Goode was responsible for 50 to 150 grams of cocaine, the district court was correct in concluding that Goode's sentence for count one would be erroneous under Apprendi. United States v. Goode, 143 F.Supp.2d 817, 822-23 (E.D.Mich. 2001).

The retroactive applicability of the Apprendi rule to cases on an initial § 2255 motion is an issue of first impression in this Circuit.⁵ We must decide if we agree with the reasoning and analysis of four other circuits, each of which has concluded that Apprendi does not apply retroactively to initial § 2255 motions. See McCoy v. United States, 266 F.3d 1245 (11th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002); United States v. Moss, 252 F.3d 993 (8th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002); United States v. Sanders, 247 F.3d 139 (4th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001); Jones v. Smith, 231 F.3d 1227 (9th Cir.2000).⁶

As a general rule, new constitutional decisions are not applied retroactively to cases that were finalized prior to a new Supreme Court decision. See, e.g., Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (jury selection rule not applicable to cases on collateral review); Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984) (custodial interrogation rule not applicable to cases on collateral review); Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973) (protective sentencing rule not retroactive); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (interrogation rules not retroactive). The principle of finality within the criminal justice system weighs heavily against retroactive application of new constitutional law, especially in light of the significant percentage of drug trafficking convictions decided in federal court.⁷

In Teague v. Lane, 489 U.S. 288, 310-13, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court articulated two exceptions to the general rule of non-retroactive application for new rules of criminal procedure. An exception that allows for retroactive application of a new rule applies only if the new rule: (1) "places certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe," or (2) "requires the observance of those procedures that ... are implicit in the concept of ordered liberty." Id. at 307, 109 S.Ct. 1060 (internal quotations omitted). The question in this case is whether the Apprendi rule is a "watershed" rule that "implicates the fundamental fairness of trial," under the second exception to the general non-retroactivity rule of Teague.⁸ Id. at 312, 109 S.Ct. 1060 (internal quotations omitted).

Goode argues that the rule of Apprendi should not be analyzed under Teague, reasoning that § 2255 was modified after Teague through the adoption of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the new language did not adopt the Teague approach. Pursuant to AEDPA, Congress deleted the language in § 2255 that read: "A motion for such relief may be made at any time." In its place, the following language was added:

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 becomes final;

(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...