Lloyd v. U.S., 04-3549.

• Decision Date: 17 May 2005
• Docket Number: No. 04-3549.,04-3549.
• Citation: 407 F.3d 608
• Parties: Garry D. LLOYD, Appellant v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

407 F.3d 608

Garry D. LLOYD, Appellant v. UNITED STATES of America.

No. 04-3549.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) April 7, 2005.

Opinion Filed: May 17, 2005.

COPYRIGHT MATERIAL OMITTED

Richard Coughlin, Esq., Anne E. Blanchard, Esq., Office of the Federal Public Defender, Camden, NJ, Counsel for Appellant.

George S. Leone, Esq., Office of the United States Attorney, Newark, NY, Counsel for Appellee.

Before: BARRY, AMBRO, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

All courts of appeals to have considered the issue of whether the rule of law announced in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies retroactively to prisoners who were in the initial § 2255 motion stage as of the date that Booker issued have concluded that it does not. We now join those courts.

I. BACKGROUND

Appellant Garry D. Lloyd was charged with bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, and was convicted by a jury. When determining Lloyd's sentence, the District Court found facts, under a preponderance of the evidence standard, that had not been found by the jury, including (1) that Lloyd had engaged in more than minimal planning; (2) that Lloyd had caused a financial loss of more than $120,000 but less than $200,000; and (3) that Lloyd had committed an obstruction of justice. Application of the Federal Sentencing Guideline enhancements called for by these fact-findings resulted in a total offense level of 17 and, given Lloyd's criminal history category of V, a Guideline imprisonment range of forty-six to fifty-seven months. The District Court sentenced Lloyd, as relevant here, to fifty months imprisonment, followed by five years of supervised release. We affirmed the judgment. See United States v. Lloyd, 58 Fed.Appx. 928 (3d Cir.2003). Lloyd did not seek a writ of certiorari, and his conviction became final on May 6, 2003.

On June 24, 2004, the Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court held that Washington State's determinate sentencing scheme, a scheme similar to the Federal Sentencing Guidelines, violated the Sixth Amendment right to a jury trial. Id. at 2538. Blakely's reasoning was that judges were imposing sentences that were not based solely on facts reflected in the verdict of the jury or admitted by the defendant, and were using a preponderance of the evidence standard to find the facts necessary to that imposition. Id. at 2536-39.

On August 3, 2004, Lloyd filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He argued that the facts supporting the enhancements he received were not found by a jury beyond a reasonable doubt and, thus, that the sentence imposed was in violation of Blakely. Moreover, he argued, although his motion was filed more than a year after his conviction became final, and therefore would otherwise be barred by the one-year limitation period of § 2255, Blakely created a new right. As such, Lloyd reasoned that the one-year period should run from the date of the Blakely decision, thereby rendering his motion timely. See 28 U.S.C. § 2255 para. 6(3).

The District Court disagreed, and dismissed the § 2255 motion. Blakely, the Court explained, did not rule that the Federal Sentencing Guidelines were unconstitutional, but even if it had done so, there had been no determination, as is required under § 2255 para. 6(3), that Blakely applies retroactively to cases on collateral review. Booker, of course, had yet to be decided.

Lloyd now appeals, post-Booker, to this Court. The District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a one-year period of limitation applies to a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255. See 28 U.S.C. § 2244(d)(1). Section 2255 states, in relevant part, that the limitation period shall run from the latest of: "(1) the date on which the judgment of conviction becomes final ... [or] (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255 para. 6. Because Lloyd concededly filed his motion more than a year after his conviction became final, his motion would only have been timely filed if the Supreme Court announced a newly recognized right or a "new rule" that has been made "retroactively applicable to cases on collateral review." See id.

Lloyd initially argued to us that his sentence was imposed in violation of Blakely. That argument is now, of course, governed by the intervening decision, issued on January 12, 2005, in Booker, which concluded that the holding in Blakely applies to the Federal Sentencing Guidelines. 543 U.S. at ___, 125 S.Ct. at 756.¹ We hardly break new ground when we note that Booker was decided by two opinions. The first, authored by Justice Stevens, held that because the Federal Sentencing Guidelines allowed judges to find facts (other than the fact of a prior conviction) that lead to a greater sentence than that authorized by the facts established by a plea of guilty or a jury verdict, the Guidelines were unconstitutional. The second, authored by Justice Breyer, devised the remedy of excising the statutory provision that made the Guidelines mandatory.

Generally, a new rule of criminal procedure "will not be applicable to those cases which have become final before the new [rule is] announced." Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This bar applies equally to a federal habeas corpus petitioner who wishes to collaterally attack his conviction, unless an exception applies. Accordingly, in order for Lloyd to benefit from Booker, it must be determined that the rule announced therein applies retroactively.

Under Teague, the determination of whether a rule of criminal procedure applies retroactively to a case on collateral review requires a three-step inquiry. In terms of this case, then, we must first determine if Lloyd's conviction became final prior to the Supreme Court's decision in Booker. See Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004). Second, we must determine whether the rule announced in Booker qualifies as "new."² See id. Third, if those two conditions are satisfied, we must examine whether the new procedural rule qualifies under one of Teague's two narrow exceptions to the non-retroactive application of such rules. See id. As relevant here, a new rule of criminal procedure will apply retroactively if it is deemed a "watershed [rule] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 2513 (internal quotation and citation omitted).

A.

It bears repeating, and the parties do not dispute, that Lloyd's conviction became final on May 6, 2003. See Kapral v. United States, 166 F.3d 565, 572 (3d Cir.1999) (explaining that when a defendant does not seek a writ of certiorari, the judgment of conviction becomes final upon the expiration of the time allowed for certiorari review); see also 28 U.S.C. § 2101(c) (allowing for ninety days, post-conviction, for certiorari review). This date is thirteen months prior to the issuance of the decision in Blakely, and twenty months prior to the issuance of the decision in Booker. Clearly, then, both Blakely and Booker would have to be given retroactive effect in order for them to be applied to Lloyd's case.

B.

Neither do the parties dispute that the Booker rule constituted a new rule of criminal procedure for purposes of Teague. We agree, and believe it appropriate to briefly explain our reasoning.

To determine if the rule announced in Booker was "new," we are required to review the "legal landscape" at the time Lloyd's conviction became final to see if the rule "was dictated by the then existing precedent-whether, that is, the unlawfulness of respondent's [sentence] was apparent to all reasonable jurists." Beard, 542 U.S. at ___, 124 S.Ct. at 2511 (internal quotation and citation omitted) (emphasis in original). If it was not "dictated" by past precedent, then Booker created a new rule.

Prior to Blakely and Booker, Apprendi established that, at sentencing, a judge could enhance a sentence based on facts not admitted by the defendant or found by the jury, so long as the enhancement did not increase the defendant's sentence beyond the prescribed statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).³ Blakely simply applied Apprendi to a different statutory scheme, clarifying "that `the statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at ___, 124 S.Ct. at 2537 (internal citation omitted) (emphasis in original).⁴ The Booker Court, of course, subsequently applied Blakely's holding to the Federal Sentencing Guidelines.

Every court of appeals to have considered the issue has concluded that, whether denominated as the "Blakely rule" or the "Booker rule," that rule was "new." For example, the Court of Appeals for the Tenth Circuit reasoned that while Blakely interpreted Apprendi, it was not compelled by Apprendi. See United States v. Price, 400 F.3d 844, 848-49 (10th Cir.2005). That is, post-Apprendi but pre-Blakely, a court would not have believed itself compelled to conclude that what became the "Blakely rule" was constitutionally required. Blakely changed courts' understanding of Apprendi's statutory maximum and announced a new rule.

The Court of Appeals for the Sixth Circuit also concluded that what it called the...