Hernandez v. U.S.A., 00-3048

• Decision Date: 01 September 2000
• Docket Number: No. 00-3048,00-3048
• Parties: (7th Cir. 2000) Salvador A. Hernandez, Petitioner, v. United States of America, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 839

226 F.3d 839 (7th Cir. 2000)

Salvador A. Hernandez, Petitioner, v. United States of America, Respondent.

No. 00-3048

In the United States Court of Appeals For the Seventh Circuit

Submitted August 18, 2000

Decided September 1, 2000^*

On Motion for an Order Authorizing the District Court To Entertain a Second or Successive Motion for Collateral Review.

Before Ripple, Diane P. Wood, and Evans, Circuit Judges.

Diane P. Wood, Circuit Judge.

As he is required to do under 28 U.S.C. sec. 2244(b)(3), Salvador Hernandez has applied for an order from this court authorizing the district court to consider a second or successive motion for collateral review under 28 U.S.C. sec. 2255. In his proposed motion, he wishes to argue that the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), announces a new rule of constitutional law that should apply to his case, implicitly invoking 28 U.S.C. sec. 2255 para. 8(2). See also Castillo v. United States, 120 S. Ct. 2090 (2000). There are two problems with this position: first, the Supreme Court has not yet had an occasion to consider whether Apprendi should be applied retroactively to cases on collateral attack (another requirement of sec. 2255 para. 8(2)), and second, there is no Apprendi problem in any event in Hernandez's particular case. We explain both of these points briefly, and deny Hernandez's application.

The offense and conviction that lie behind Hernandez's present application were for conspiracy to kidnap, 18 U.S.C. sec. 1201(c), and kidnapping, 18 U.S.C. sec. 1201. Under the U.S. Sentencing Guidelines, the base offense level for kidnapping is 24, and that level can be increased depending on a number of specific offense characteristics. See U.S.S.G. sec. 2A4.1. Depending on the criminal history category that applies to the individual defendant, a level 24 carries with it a sentencing range from 51 to 63 months (criminal history category I) to 100 to 125 months (criminal history category VI). Obviously, those ranges increase as the offense level goes up under sec. 2A4.1(b). During the sentencing proceedings, the district court made upward adjustments to Hernandez's offense level under sec. 2A4.1(b)(1) (ransom demand or demand upon government, for six levels), sec. 2A4.1(b)(3) (use of a dangerous weapon, for two levels), and sec. 2A4.1(b)(4)(B) (victim not released before seven days had elapsed, for one level). With these adjustments and his criminal history, his final sentence was for 200 months. This court affirmed both his convictions and his sentence on direct appeal. See United States v. Hernandez, 106 F.3d 737 (7th Cir. 1997).

Hernandez is now trying to file a second or successive motion under 28 U.S.C. sec. 2255. We must first decide whether presentation of a claim under a new Supreme Court decision at a time before the Court has announced whether it is retroactively applicable to cases on collateral attack amounts to an "adjudication" of that claim or not. If the answer is yes then our disposition of Hernandez's application will have an effect on any future applications he may file; if it is no, and if his claim cannot be disposed of otherwise, then he would be entitled to another bite at the apple.

Any claim that was presented in an earlier motion or application must be dismissed, under 28 U.S.C. sec. 2244(b)(1) (for sec. 2254 cases) and 28 U.S.C. sec. 2255 para. 8. What happens, however, if the earlier claim rests on a new rule of constitutional law for which the Supreme Court has not yet announced a decision about retroactivity? It is clear from the language of sec. 2255 para. 8(2) that the earlier application would have had to be denied, for the simple reason that it did not satisfy the statutory requirement of relying on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." (Emphasis added.) See Bennett v. United States, 119 F.3d 470 (7th Cir. 1997). But the real question is whether such a denial should be regarded as analogous to a non- merits dismissal like a failure to exhaust state remedies. In Gray-Bey v. United States, 209 F.3d 986 (7th Cir. 2000), we indicated that a new rule that is retroactive for purposes of collateral attack is not "available" for a sec. 2255 motion until the Supreme Court has clearly ruled that this is the case. Id. at 988 ("[b]ut for purposes of sec. 2255 para. 8(2) a rule is 'unavailable' until the Supreme Court renders its decision, for it is the high court's decision that must be held retroactive (as Bailey [v. United States, 516 U.S. 137 (1995)] was held retroactive by Bousley [v. United States, 523 U.S. 614 (1998)]"). Under that logic, it follows that potentially meritorious claims that rely on new rules of constitutional law are not ripe for presentation until the Supreme Court has ruled on the retroactivity question. Just as we do with applications relying on unexhausted claims, we would dismiss such an application without prejudice...