Talbott v. State

• Decision Date: 07 September 2000
• Docket Number: Nos. 00-3080,s. 00-3080
• Citation: 226 F.3d 866
• Parties: (7th Cir. 2000) Richard Dale Talbott, Applicant, v. State of Indiana, Respondent. & 00-3085
• Court: U.S. Court of Appeals — Seventh Circuit

Page 866

226 F.3d 866 (7th Cir. 2000)

Richard Dale Talbott, Applicant, v. State of Indiana, Respondent.

Nos. 00-3080 & 00-3085

In the United States Court of Appeals For the Seventh Circuit

Submitted August 29, 2000

Decided September 7, 2000

Applications for Leave to Commence Successive Collateral Attacks. [Copyrighted Material Omitted] Before Bauer, Easterbrook, and Manion, Circuit Judges.

Easterbrook, Circuit Judge.

Richard Talbott is among the throngs of state and federal prisoners who believe that Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), undermines their sentences. Prisoners who already have filed and lost a collateral attack need this court's approval to launch another. Not one of the Apprendi-based applications for permission to file has been granted, however, and none is going to be granted in the near future, for a fundamental reason: a new decision of the Supreme Court justifies a second or successive collateral attack only if it establishes "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. sec.sec. 2244(b)(2)(A), 2255 para.8(2). We held in Bennett v. United States, 119 F.3d 470 (7th Cir. 1997), that retroactive application must be declared by the Supreme Court itself. Although West v. Vaughn, 204 F.3d 53, 59-63 (3d Cir. 2000), disagrees with Bennett and holds that a decision of the Supreme Court is "retroactive to cases on collateral review" if its logic implies retroactivity under the approach of Teague v. Lane, 489 U.S. 288 (1989), we are not willing to depart from Bennett. Congress said that only new rules "made retroactive . . . by the Supreme Court" (emphasis added) support successive petitions under sec.2244(b)(2)(A) or sec.2255 para.8(2). Teague establishes standards that guide the Supreme Court in deciding whether a decision is retroactive; sec.2244(b)(2)(A) or sec.2255 para.8(2) depart from pre-1996 law by specifying that only the Supreme Court may make that decision for purposes of successive collateral attacks. In West the third circuit confused a substantive question ("which decisions apply retroactively?") with a procedural question ("which court makes the retroactivity decision?"). Cf. Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). Justices don't have to recite the statutory language verbatim, but the choice between prospective and retroactive application belongs to the Supreme Court rather than to the court of appeals.

Apprendi does not state that it applies retroactively to other cases on collateral review. No other decision of the Supreme Court applies Apprendi retroactively to cases on collateral review. So, given Bennett, no application based on Apprendi can be authorized under sec.2244(b)(2)(A) or sec.2255 para.8(2). Accord, United States v. Sustache-Rivera, 2000 U.S. App. Lexis 18079 (1st Cir. July 25, 2000). If the Supreme Court ultimately declares that Apprendi applies retroactively on collateral attack, we will authorize successive collateral review of cases to which Apprendi applies. Until then prisoners should hold their horses and stop wasting everyone's time with futile applications. (They are futile, not fatal under 28 U.S.C. sec.2244(b)(1). As we held in Hernandez v. United States, No. 00-3048 (7th Cir. Sept. 1, 2000), a dismissal based on the fact that a case has not been declared retroactive is without prejudice for purposes of sec.2244(b)(1).) What is more, prisoners now peppering district judges with initial collateral attacks based on Apprendi should reconsider: the itch to invoke the latest decision of the Supreme Court can be costly, because a loss will require this court's approval to launch a later collateral attack if better grounds for relief become available. Federal law allows only one round of collateral review as of right, so prisoners should choose their issues wisely.

Many of the applications we have received have serious problems in addition to Bennett. Prisoners seem to think that Apprendi reopens every sentencing issue decided by a federal court in the last generation. It does not. All Apprendi holds is that most circumstances increasing a statutory maximum sentence must be treated as elements of the offense--and, if the defendant has demanded a jury trial, this means that they must be established beyond a reasonable doubt to the jury's satisfaction. Apprendi does not affect application of the relevant-conduct rules under the Sentencing Guidelines to sentences that fall within a statutory cap. Thus, for example, when the statutory maximum is life imprisonment, Apprendi is beside the point. United States v. Smith, 223 F.3d 554, 564-66 (7th Cir.2000); Hernandez, F.3d at, slip op. 4. When a drug dealer is sentenced to less than 20 years' imprisonment--the limit under 21 U.S.C. sec.841(b)(1)(C) for even small-scale dealing in Schedule I and II controlled substances--again Apprendi is irrelevant even if we eventually conclude, as United States v. Aguayo-Delgado, 2000 U.S. App. Lexis 17243 (8th Cir. July 18, 2000), has held, that United States v. Jackson, 207 F.3d 910, 920-21 (7th Cir. 2000), erred in concluding that the drug type-and-quantity rules of sec.841(b) are sentencing factors rather than elements of the offense. To put this otherwise, Apprendi does not affect the holding of Edwards v. United States, 523 U.S. 511 (1998), that the judge alone determines drug types and quantities when imposing sentences short of the statutory maximum. And, more to the point of Talbott's application, Apprendi does not affect the holding of Custis v. United States, 511 U.S. 485 (1994), that the validity of prior convictions is not open to reexamination at sentencing for a new offense, unless the defendant lacked counsel when convicted of the prior offenses.

Richard Talbott is serving a lengthy federal sentence for possessing ammunition despite multiple prior felony convictions. 18 U.S.C. sec.922(g)(1). See United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996), decision after remand, No. 96-2712 (Feb. 13, 1997) (unpublished order). The length of the sentence, more than 22 years' imprisonment, stems from his prior felony convictions, which led to his classification as an armed career criminal under 18 U.S.C. sec.924(e). We held on Talbott's prior appeals that the sec.924(e) recidivist enhancement is proper. Talbott wants to revisit this subject, arguing that, under Apprendi, one of his prior felony convictions really should have been a misdemeanor conviction. As he inter...