McCoy v. U.S., No. 00-16434

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtHULL; BARKETT
Citation266 F.3d 1245
Parties(11th Cir. 2001) CHESTER MCCOY, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee
Docket NumberNo. 00-16434
Decision Date25 September 2001

Page 1245

266 F.3d 1245 (11th Cir. 2001)
CHESTER MCCOY, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.
No. 00-16434
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
September 25, 2001

Page 1246

Copyrighted Material Omitted

Page 1247

Appeal from the United States District Court for the Southern District of Florida, D. C. Docket No. 00-14298-CV-KLR

Before BARKETT and HULL, Circuit Judges, and LIMBAUGH*, District Judge.

HULL, Circuit Judge:

Asserting Apprendi errors, Chester McCoy appeals the district court's order dismissing his initial motion to vacate, filed pursuant to 28 U.S.C. § 2255. After review, we affirm. In doing so, we hold that McCoy's Apprendi claims in his initial § 2255 motion are not jurisdictional and are barred by Teague's non-retroactivity standard. Additionally, we hold that because McCoy did not raise his Apprendi claims on direct appeal, he is procedurally barred from raising them in his initial § 2255 motion.

I. BACKGROUND

An indictment charged McCoy with conspiracy to possess with intent to distribute "a Schedule II narcotic controlled substance, that is, a mixture and substance containing a detectable amount of cocaine in the form of cocaine base, commonly known as crack cocaine," in violation of 21 U.S.C. § 846. McCoy pled guilty to this charge. The plea agreement contained a provision regarding the statutory minimum and maximum terms of imprisonment for the charge, which were based on the provisions of 21 U.S.C. § 841(b)(1)(A) applicable to cocaine base offenses involving more than 50 grams, as follows:

The defendant understands and agrees that the court must impose a minimum term of imprisonment of ten years and may impose a statutory maximum term of life imprisonment, followed by a term of supervised release.

The district court sentenced McCoy to ten years' imprisonment. McCoy did not file a direct appeal of his sentence, which became final on January 20, 1999.

On October 3, 2000, McCoy filed a motion to vacate pursuant to 28 U.S.C. § 2255, the only one he has filed, arguing that his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, McCoy contended that the indictment, because it did not allege a specific drug quantity, violated the Fifth Amendment indictment clause, thus depriving the court of jurisdiction to sentence him to a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A).

On October 19, 2000, without seeking a response from the government, the magistrate judge to whom McCoy's motion was

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referred recommended that the district court deny McCoy's § 2255 petition on the ground that "[t]he Eleventh Circuit Court of Appeals has held that Apprendi has not been made retroactive to cases on collateral review," citing In re Joshua, 224 F.3d 1281 (11th Cir. 2000). McCoy objected to the magistrate judge's recommendation, arguing that In re Joshua applied only to cases involving successive § 2255 motions and that the retroactivity of Apprendi to his initial § 2255 motion is governed solely by Teague v. Lane, 489 U.S. 288 (1989). On November 16, 2000, the district court summarily adopted the magistrate judge's recommendation and denied McCoy's § 2255 motion.

On appeal, the government concedes that the district court was incorrect in applying In re Joshua to McCoy's § 2255 motion.1 However, the government contends (1) that McCoy's Apprendi claim is barred by Teague's non-retroactivity standard, and (2) that McCoy cannot establish cause and prejudice for his failure to assert his claims on direct appeal, pursuant to United States v. Frady, 456 U.S. 152 (1982).2

II. DISCUSSION

A. Nature of an Apprendi Claim

As a threshold matter, McCoy characterizes his claim that the indictment did not allege drug quantity as required by Apprendi as "jurisdictional." He argues that his Apprendi claim can thus be raised in his § 2255 motion notwithstanding the Teague and procedural-bar doctrines. We have held that a jurisdictional defect may not be procedurally defaulted and that therefore a defendant need not show cause and prejudice to justify his failure to raise such a defect. See Harris v. United States, 149 F.3d 1304, 1309 (11th Cir. 1998) (stating that a defendant "need not show cause and prejudice to collaterally attack the enhanced sentence because jurisdictional claims cannot be procedurally defaulted"). We have never held that the Teague doctrine does not apply to jurisdictional claims, but even assuming arguendo for present purposes that a claim of a jurisdictional defect avoids the Teague doctrine as well as the procedural- bar doctrine,

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McCoy's claim of Apprendi error is not jurisdictional.

A jurisdictional defect is one that "strip[s] the court of its power to act and ma[kes] its judgment void." Escareno v. Carl Nolte Sohne GmbH & Co., 77 F.3d 407, 412 (11th Cir. 1996). Because parties cannot by acquiescence or agreement confer jurisdiction on a federal court, a jurisdictional defect cannot be waived or procedurally defaulted - instead, a judgment tainted by a jurisdictional defect must be reversed. See Harris, 149 F.3d at 1308-09; see also United States v. Griffin, 303 U.S. 226, 229 (1938).

The constitutional right to be charged by a grand jury is a personal right of the defendant and does not go to the district court's subject matter jurisdiction because it may be waived. See Fed. R. Crim. P. 7(b).3 Thus, the constitutional right to be charged by grand jury indictment simply does not fit the mold of a jurisdictional defect, because it is a right that plainly may be waived.

This conclusion finds implicit confirmation in a host of cases dealing with Apprendi and analogous errors. If Apprendi and analogous errors were jurisdictional, this Court could not of course affirm despite error; jurisdictional errors are not subject to plain- or harmless-error analysis. But our decisions have consistently applied plain- or harmless-error review, depending on the timing of the objection, to Apprendi-based arguments that an indictment failed to include specific drug quantity.4 Indeed, this Court in applying plain error review has affirmed convictions and sentences for a § 841(a) offense where the indictment failed to specify drug quantity even though the defendant received a greater sentence than the statutory maximum provided in § 841(b)(1)(C) without regard to quantity. See, e.g., United States v. Pease, 240 F.3d 938, 943-44 (11th Cir. 2001) (finding plain error in the defendant's thirty-year sentence based on an indictment that failed to allege specific drug quantity, but finding no effect on the defendant's substantial rights); United States v. Swatzie, 228 F.3d 1278, 1282-84 (11th Cir. 2000) (stating "we assume arguendo that there was error, and that it was plain," where the defendant's life sentence was based on an indictment that failed to allege drug quantity, but finding no effect on the defendant's substantial rights).5

The majority of circuits to consider the issue, moreover, have applied plain error review to Apprendi-based claims that an

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indictment fails to specify drug quantity, even when the defendant was sentenced to a greater sentence than that provided by the statutory maximum in § 841(b)(1)(C) for a § 841(a) offense. See United States v. Terry, 240 F.3d 65, 74-75 (1st Cir. 2001) (finding no plain error in the defendant's 324-month sentence based on indictment which did not allege drug quantity), cert. denied, 121 S. Ct. 1965 (2001); United States v. Patterson, 241 F.3d 912, 914 (7th Cir. 2001) (noting that "the indictment was silent on the quantity of drugs the conspirators sold, but we cannot see why that matters to plain-error analysis" and affirming sentences exceeding twenty years); United States v. Nance, 236 F.3d 820, 824 (7th Cir. 2000) (finding the defendant's 262-month sentence based on an indictment that did not specify drug quantity was plain error under Apprendi which affected defendant's substantial rights, but finding that it did not seriously affect the integrity of the judicial proceedings). See also United States v. Mojica-Baez, 229 F.3d 292, 307 (1st Cir. 2000) (finding that sentencing a defendant to more than ten years for an aggravated firearm offense under 18 U.S.C. § 924(c) where the indictment failed to allege the type of firearm used was plain error, but finding no prejudice), cert. denied, 121 S. Ct. 2215 (2001).6 The Tenth Circuit recently held en banc that "the failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction; rather, such a failure is subject to harmless error review." United States v. Prentiss, 256 F.3d 971, 981 (10th Cir. 2001).7

Our conclusion is not only consistent with the decisions of those other circuits, but also with Supreme Court precedent.

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In Neder v. United States, 527 U.S. 1 (1999), the Supreme Court held that "the omission of an element [in a jury instruction] is an error that is subject to harmless-error analysis." Id. at 15.8 An indictment's error in not including an element of the offense is "analogous to the instructional error the Court considered in Neder." United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000). Like the Seventh and First Circuits, we are "compelled by the Supreme Court's decision in Neder to subject the indictment error in this case to plain error review." Mojica-Baez, 229 F.3d at 311. As the court in Mojica-Baez explained:

It is true . . . that Neder was explicitly concerned with the failure to submit an element of an offense to the petit jury at trial and not with the failure to present an element to the grand jury to secure an indictment. But we do not think that distinction is significant where the indictment provided the defendant with fair notice of the charges against him.

Id. (citations omitted); see also Prentiss, 256 F.3d at 984 (quoting with approval Mojica-Baez). As the...

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