Sepulveda v. U.S.

• Decision Date: 29 May 2003
• Docket Number: No. 01-2755.,01-2755.
• Citation: 330 F.3d 55
• Parties: George SEPULVEDA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

330 F.3d 55

George SEPULVEDA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 01-2755.

United States Court of Appeals, First Circuit.

Heard April 9, 2003.

Decided May 29, 2003.

COPYRIGHT MATERIAL OMITTED

Elizabeth L. Prevett, Federal Defender Office, for petitioner.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Gerard B. Sullivan, Assistant United States Attorney, were on brief, for respondent.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

SELYA, Circuit Judge.

Invoking 28 U.S.C. § 2255 (2000), petitioner-appellant George Sepulveda, a federal prisoner, mounted a collateral attack on his conviction and sentence for witness intimidation. The district court repulsed the attack. The petitioner's ensuing appeal presents two questions of first impression within this circuit. The first asks whether the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), applies retroactively to cases on collateral review. The second, relevant only if Apprendi lacks such retroactivity, asks whether the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), rendered the doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), inapplicable to initial petitions for post-conviction relief under section 2255. Concluding, as we do, that Apprendi has no retroactive effect and that Teague is not a dead letter in the AEDPA context, we affirm the denial of the petitioner's habeas corpus application.

I. BACKGROUND

The petitioner, known in some circles as "King Paradise," was convicted of multiple crimes arising out of his activities as the leader of the Providence chapter of the Almighty Latin King Nation. We affirmed those convictions in United States v. Lara, 181 F.3d 183 (1st Cir.1999). Here, we reconstruct only the factual terrain pertinent to the issues before us, referring those who seek a more detailed topographic model to our earlier opinion. See id. at 190-91.

A grand jury empaneled in the District of Rhode Island returned a thirteen-count indictment against the petitioner and several others. After a lengthy trial, a petit jury convicted the petitioner of racketeering, conspiracy to commit racketeering, murder in aid of racketeering, witness intimidation, and possessing a firearm as a convicted felon. See 18 U.S.C. §§ 1962(c), 1962(d), 1959(a), 1512(b)(3), 922(g)(1). The district court imposed three concurrent life sentences, a concurrent twenty-year incarcerative term, and a concurrent ten-year incarcerative term. We affirmed the convictions and sentences, Lara, 181 F.3d at 206, and the Supreme Court eschewed further review, 528 U.S. 1127, 120 S.Ct. 960, 145 L.Ed.2d 833 (2000).

A federal criminal conviction becomes final when the Supreme Court denies certiorari. See Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003). Approximately five months after the denial of certiorari in the petitioner's case, the Court decided Apprendi. The central holding of Apprendi is that "[o]ther than the fact 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. This clarion call arguably conflicted with the procedure employed by the district court in sentencing the petitioner on the witness intimidation count. We explain briefly.

The witness intimidation count arose from an incident wherein the petitioner ordered the "termination" of Manuel Pacheco, a state prisoner who was assisting the authorities in their investigation of the Latin Kings.¹ Lara, 181 F.3d at 200. The petitioner's order passed through various channels to henchmen (incarcerated Latin King members) within the penitentiary in which Pacheco was housed. Id. At the first opportunity, these acolytes beat Pacheco savagely. Id. at 200-01.

A defendant convicted of witness intimidation typically faces a maximum prison term of ten years. See 18 U.S.C. § 1512(b). At sentencing, however, the government asked the lower court to enhance the petitioner's sentence pursuant to the Criminal Street Gangs Act, which authorizes a ten-year bump in the sentence of an individual convicted of certain offenses — including witness intimidation — if it is determined that the individual committed the offense "intend[ing] to promote or further the felonious activities of [a] criminal street gang or maintain or increase his or her position in the gang." Id. § 521(d). The sentencing court found that the petitioner's conviction fit within these confines and, accordingly, imposed a twenty-year sentence (double the maximum otherwise authorized under the statute of conviction).

On December 29, 2000, the petitioner filed a federal habeas application — technically an application to vacate, set aside, or correct his sentence — under section 2255. See Ellis v. United States, 313 F.3d 636, 641 (1st Cir.2002) (observing that, as to federal prisoners, section 2255 is in essence "a surrogate for the historic writ of habeas corpus"). In it, he argued that he had been sentenced to a term of imprisonment above the default statutory maximum for the crime of conviction based on a judge's factual finding that the circumstances attendant to his commission of that crime warranted the enhancement, and that the resultant sentence violated the Apprendi rule. The district court denied the application, holding that Apprendi could not be applied retroactively to cases on collateral review.

The petitioner moved for a certificate of appealability (COA). See 28 U.S.C. § 2253. We granted the request with respect to the effect, if any, that the Apprendi decision might have on the petitioner's conviction for witness intimidation. This appeal followed.

II. ANALYSIS

It is beyond cavil that the petitioner's sentence for witness intimidation exceeds the default statutory maximum for that crime, and that this overage rests on the sentencing court's finding that the petitioner had acted with the intention of furthering the felonious activities of a criminal street gang and/or maintaining his leadership position in such a gang. Thus, the petitioner has made at least a prima facie showing of a violation of the Apprendi rule.² But the petitioner's conviction had already become final before Apprendi was handed down, and the threshold question is whether the new rule applies to his case. See Derman v. United States, 298 F.3d 34, 39 (1st Cir.2002). The petitioner advances two theories in support of the retroactive application of the Apprendi rule. We address these theories sequentially.

A. The Teague Exceptions.

The Supreme Court's decision in Teague v. Lane constitutes a general bar to the retroactive application of newly announced rules of criminal procedure. Tyler v. Cain, 533 U.S. 656, 665, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (citing Teague, 489 U.S. at 311-13, 109 S.Ct. 1060). The Teague bar admits of two exceptions. The first allows retroactive application of new rules that either (a) prohibit criminal punishment for certain types of primary conduct, or (b) forbid the imposition of certain categories of punishment for particular classes of defendants. O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). This exception is patently inapposite here: Apprendi neither places any particular type of conduct beyond the reach of the criminal law nor pretermits any particular type of punishment for a specific class of defendants. Accord McCoy v. United States, 266 F.3d 1245, 1256 (11th Cir.2001). Thus, the petitioner's challenge necessarily stands or falls on the strength of the second exception.

The second Teague exception allows retroactive application of "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (internal quotation marks omitted). For this exception to flourish, the new rule must pass two tests. First, "[i]nfringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction." Tyler, 533 U.S. at 665, 121 S.Ct. 2478 (citations and internal quotation marks omitted). Second, the new rule must itself alter the accepted understanding of the bedrock procedural elements essential to the integrity and fairness of a criminal proceeding. Id.

Nothing in the Apprendi decision indicates to us that infringements of its rule will seriously diminish the accuracy of convictions (which, by definition, must take place before any such infringement occurs). The case before us provides a practical illustration of why this is so. The petitioner was tried before a jury and convicted of witness intimidation upon proof of his guilt beyond a reasonable doubt. There is no indication that, in the course of his trial, he received less than the process that was due. The procedural error to which the petitioner adverts may raise questions as to the length of his sentence, but inaccuracies of this nature, occurring after a defendant has been duly convicted, are matters of degree and do not trump what the Justices have termed "the general rule of nonretroactivity." Tyler, 533 U.S. at 665, 121 S.Ct. 2478.

We add, moreover, that the length of the petitioner's sentence was not plucked out of thin air, but, rather, was determined by a federal judge based upon discrete findings of fact established by a fair preponderance of the evidence. We agree with the Seventh Circuit that findings by federal judges, though now rendered insufficient in certain instances by Apprendi, nonetheless "are adequate to make reliable decisions about punishment." Curtis v. United States, 294 F.3d 841, 844 (7th Cir.2002). After all, even in the post-...