In re Fashina

• Decision Date: 11 May 2007
• Docket Number: No. 06-3002.,06-3002.
• Citation: 486 F.3d 1300
• Parties: In re: Olutoyin O. FASHINA Petitioner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

486 F.3d 1300

In re: Olutoyin O. FASHINA Petitioner.

No. 06-3002.

United States Court of Appeals, District of Columbia Circuit.

Argued January 18, 2007.

Decided May 11, 2007.

Peter S. Spivack, appointed by the court, argued the cause for petitioner. With him on the briefs was Christopher T. Handman.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for respondent. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and TATEL, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge.

Convicted of various drug-related offenses in 1994, Olutoyin Fashina petitions for leave to file a successive § 2255 habeas petition in which he contends his sentence was unconstitutional in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Fashina filed his first habeas petition prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and claims this request for leave therefore should be evaluated under the pre-AEDPA "cause and prejudice" standard; under the AEDPA, we may entertain a second or successive habeas petition only if it is based upon "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court."

We hold Booker does not apply retroactively. As a result, Fashina is not entitled to another habeas proceeding under the AEDPA and, more to his point, neither can he show the "cause and prejudice" required under pre-AEDPA law. We accordingly deny his petition.

I. Background

In 1994 Fashina was indicted for (1) conspiracy to distribute and possession with intent to distribute 100 grams or more of heroin from October 1991 to March 1993, (2) distribution of over 100 grams of heroin on November 5, 1992, and (3) distribution and possession with intent to distribute over 100 grams of heroin on January 7, 1993. A jury acquitted him of the November 5 distribution charge and convicted him on the other counts. The jury made no finding as to the amount of drugs involved.

At sentencing the district court adopted the factual findings and the sentence recommended in the presentence investigation report, see United States v. Badru, 97 F.3d 1471, 1476-78 (D.C.Cir.1996), which attributed to Fashina 14,007 grams of heroin, some of which had never been in his possession. Fashina argued unsuccessfully that the jury must have meant to attribute to him only the heroin he possessed on January 7, 1993, and his sentencing range under the Guidelines should be correspondingly lower. On appeal we affirmed his conviction and the sentence. Id. at 1479.

In 1995 Fashina filed a habeas petition claiming ineffective assistance of counsel, which the district court denied; we affirmed that judgment as well. In 2006— after enactment of the AEDPA—Fashina sought leave to file a successive habeas petition, this time alleging, among other claims, that he was sentenced in violation of Booker. We ordered briefing on the Booker claim and denied leave with respect to the other claims.

II. Analysis

Under the AEDPA, an appeals court may grant leave to file a second or successive motion for a writ of habeas corpus only if the motion is based upon either:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) 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. Fashina concedes he meets neither of these standards. See In re Zambrano, 433 F.3d 886, 888 (D.C.Cir. 2006) (noting Supreme Court has not made Booker retroactive to cases on collateral review). Instead he maintains that because his motion meets the standards in effect before enactment of the AEDPA, that statute may not be applied retroactively to his case. Unless the Congress has expressly made a statute retroactive, the courts do not apply it retroactively if doing so "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf v. USI Film Products, 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The Government responds that Fashina cannot meet the pre-AEDPA standard and the AEDPA therefore may be applied without prejudice to him. See United States v. Ortiz, 136 F.3d 161, 166 (D.C.Cir.1998).

Pre-AEDPA, if a prisoner raised a claim for the first time in a second or successive habeas petition and the Government, based upon his record of prior petitions, alleged he was abusing the writ, we would entertain the petition only if the prisoner showed "cause for failing to raise [the claim earlier] and prejudice therefrom." McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Fashina contends he had "cause" for not raising his Booker claim in his initial petition because Booker had not yet been decided, and he suffers "prejudice therefrom" because application of Booker to his case would reduce his sentence. The Government counters that Fashina cannot show cause because he could have raised the issue when he filed his first petition, although the likelihood of success was then small, see Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), and he cannot show prejudice because Booker is not retroactive.

We conclude Fashina cannot show "prejudice" because Booker is not retroactive and therefore we need not consider whether he has shown "cause." We recognize that prudence ordinarily dictates that we tackle nonconstitutional issues first, so that, if their resolution is dispositive, we need not reach the constitutional issue. See, e.g., Lambrix v. Singletary, 520 U.S. 518, 524, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). But the principle of avoidance is not an absolute; a court may invert the sequence in appropriate circumstances. See, e.g., Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (qualified immunity analysis requires court first to determine whether constitutional right was violated, and only if so whether right was clearly established); Lockhart v. Fretwell, 506 U.S. 364, 369 n. 2, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) ("Harmless-error analysis is triggered only after the reviewing court discovers that an error [of constitutional law] has been committed"). In Lambrix itself the Supreme Court considered whether its decision in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), should be made retroactive, which required a "detailed analysis of federal constitutional law," although it could have remanded the case to the court of appeals to consider whether the claim was procedurally barred. 520 U.S. at 524, 117 S.Ct. 1517. In doing so, the Court acknowledged that "[c]onstitutional issues are generally to be avoided," id., but that did not mean

the procedural-bar issue must invariably be resolved first; only that it ordinarily should be. Judicial economy might counsel giving the [retroactivity] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.

Id. at 525, 117 S.Ct. 1517. We believe it is likewise appropriate in the present circumstances to address retroactivity first. Similarly, in McCoy v. United States, 266 F.3d 1245, 1255-56 (11th Cir.2001), the Eleventh Circuit, in the interest of judicial economy, first considered the possible retroactivity of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), rather than whether the petitioner was procedurally barred for failing to raise the Apprendi argument on direct appeal, because the retroactivity issue was then being raised in a plethora of habeas motions in that circuit.

In Booker the Supreme Court held the United States Sentencing Guidelines, if mandatory, would violate a defendant's Sixth Amendment right to have all facts necessary to the imposition of a sentence found by a jury applying the reasonable doubt standard; the Court therefore construed the Guidelines as advisory. 543 U.S. at 244-45, 125 S.Ct. 738. The Government concedes that, if Booker has retroactive effect, then Fashina has shown prejudice because the district court increased his sentence based upon its understanding the Guidelines were mandatory and upon facts not found beyond a reasonable doubt by the jury. The question before us, therefore, is whether Booker is indeed to be applied retroactively. As established in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a decision announcing a new rule of law applicable to criminal cases is retroactive only if the rule is (1) substantive or (2) a "watershed" procedural rule. See Whorton v. Bockting, ___ U.S. ___, 127 S.Ct. 1173, 1180-81, 167 L.Ed.2d 1 (2007); Schriro v. Summerlin, 542 U.S. 348, 351-53, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Fashina acknowledges that Booker announced a new rule, and we hold that neither exception to the general rule of nonretroactivity applies to make Booker retroactive.

A. Substantive Rule?

A new substantive rule

alters the range of conduct or the class of persons that the law punishes. In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural. . . . A decision that modifies the elements of an offense is normally substantive rather than procedural.

Summerlin, 542 U.S. at 353-54, 124 S.Ct. 2519 (citations omitted). Fashina contends Booker is substantive because it made "the provisions...