U.S. v. Clark

• Decision Date: 26 July 2001
• Docket Number: No. 99-50485,99-50485
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PATRICK CLARK, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 382

260 F.3d 382 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PATRICK CLARK, Defendant - Appellant.

No. 99-50485

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

July 26, 2001

Joseph H. Gay, Jr., Asst. U.S. Atty., Angela S. Raba, San Antonio, TX, for Plaintiff-Appellee.

Patrick Zedell Clark, Leavenworth, KS, pro se.

Appeal from the United States District Court For the Western District of Texas

Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON^*, District Judge.

EMILIO M. GARZA, Circuit Judge:

In light of the impact that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) has wrought in sentencing above maximum statutory limits, we REMAND to the district court to reconsider its ruling denying Patrick Clark an amendment to his § 2255 motion based on futility in light of Apprendi.¹

ROBERT M. PARKER, Circuit Judge, dissenting:

I dissent from the panel's decision to remand this case for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). This case presents a purely legal question that requires no further action by the district court and I would therefore decide, prior to remand, this issue which has been squarely presented and adequately briefed.

Patrick Clark (federal prisoner # 61006-080) appeals the denial of his motion to vacate, set aside or correct his sentence filed pursuant to 28 U.S.C. § 2255. We granted Clark a certificate of appealability to determine whether the district court erred in denying him leave to amend his § 2255 motion based on the futility of his claim that the amount of cocaine base is an element of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) that must be alleged in the indictment.

In 1994, a federal grand jury charged Clark in a two-count indictment with conspiracy to possess with intent to distribute cocaine base and with possession "with intent to distribute cocaine base, a Schedule II Controlled Substance in violation of Title 21 United States Code, Section 841(a)(1)." Clark pleaded guilty pursuant to a plea agreement to Count Two, possession with intent to distribute cocaine base, and was sentenced to a term of life imprisonment. This court determined that he had waived his right to appeal in his plea agreement and dismissed his direct appeal. See United States v. Clark, No. 94-50730 (5th Cir. Mar. 28, 1996)(unpublished).

In 1997, Clark filed the present § 2255 motion. The magistrate judge found no cognizable constitutional errors and recommended that the motion be denied. Clark filed objections to the magistrate judge's findings and recommendation, arguing for the first time that his indictment was defective because it failed to allege the applicable penalty provision under § 841(b). The district court treated the objection as a motion to amend the § 2255 motion. On March 26, 1999, the district court determined that it would be futile to allow the amendment, relying on case law that held that the amount of drugs involved in an offense was a sentencing factor and not an element of the offense that was required to be alleged in the indictment. The order specifically noted that "the movant's argument has been rejected by every circuit that has addressed it." The district court then adopted the magistrate judge's findings that Clark's other claims lacked merit and denied the motion. The district court's order was entered two days after the Supreme Court decided Jones v. United States, 526 U.S. 227 (1999), but made no mention of that opinion.

Clark appealed and the district court denied him a certificate of appealability (COA). On March 30, 2000, Clark applied to this court for a COA, asserting that Jones supported his argument that the district court committed procedural error in denying him leave to amend his § 2255 motion based on the futility of his claim that the amount of cocaine base involved should have been alleged in the indictment. We granted COA on August 9, 2000, citing the then recent Supreme Court opinion in Apprendi, 120 S. Ct. 2348 (decided on June 26, 2000).

In Apprendi, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment requires that a factual determination, other than the fact of a prior conviction, authorizing an increase in the maximum prison sentence for an offense must be made by a jury on the basis of proof beyond a reasonable doubt. Apprendi, 120 S. Ct. at 2351. The Government argues that the district court did not abuse its discretion in denying Clark the opportunity to amend his § 2255 petition to attack his sentence on the basis of Jones and Apprendi because that claim was in fact futile under the law prevailing at the time Clark's conviction became final. Given that Clark's conviction was final prior to the date that Supreme Court decided Apprendi, I agree that the Apprendi decision controls our analysis only if it can be applied retroactively on collateral review.¹

In Teague v. Lane, 489 U.S. 288, 310 (1989) the Supreme Court stated that, as a general rule, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." The Court established a three-step inquiry to determine when new rules of criminal procedure apply retroactively on collateral review. Teague, 489 U.S. at 288. First, we must determine the date on which the defendant's conviction became final. O'Dell v. Netherland, 521 U.S. 151, 156 (1997). Second, we must decide whether the Supreme Court's ruling constitutes a new rule of constitutional criminal procedure; Teague is inapplicable unless we find both that the rule is new and that it involves a procedural rather than a substantive change. Bousley v. United States, 523 U.S. 614 (1998). Third, a new procedural rule may nonetheless apply if it falls within one of two narrow exceptions to Teague's general rule barring retroactivity. See United States v. Sanders, 247 F.3d 139, 148 (4th Cir. 2001) (emphasizing the narrowness of the exceptions and pointing out that the Supreme Court has yet to find a single rule that qualifies under the second exception). The first exception, that a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Teague, 489 U.S. at 311, has no application to the case at bar. The second exception, that a new rule should be applied retroactively if it requires the observance of procedures that are "implicit in the concept of ordered liberty," id., is fulcrum on which Clark's argument turns.

Initially, I note that the parties do not dispute that Clark's conviction was final in 1996, well before the Supreme Court's 2000 decision in Apprendi was announced.

Teague's second step asks whether the rule is "new" and whether the rule is properly characterized as substantive or procedural. On the question of whether Apprendi announced a "new" rule, we have been directed to "survey the legal landscape as it then existed, and determine whether a[ ] court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Lambrix v. Singletary, 520 U.S. 518, 526 (1997). As the district court correctly noted, prior to Apprendi, Clark's argument had been rejected by this circuit, see, e.g., United States v. Hare, 150 F.3d 419, 428 n.2 (5th Cir. 1998)(noting that because proof of quantity is not an element of the offense, a defendant charged with a violation of § 841(a)(1) is on notice that the district court is not bound by the quantity of drugs mentioned by the indictment and that his sentence will be calculated under the sentencing guidelines), overruled by United States v. Doggett, 230 F.3d 160 (5th Cir. 2000), and every other circuit that had addressed it. See, e.g., United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1998); United States v. Silvers, 84 F.3d 1317 (10th Cir. 1996); United States v. Olness, 9 F.3d 716 (8th Cir. 1993). The Government has conceded and I find that Apprendi announced a new rule.

Next, I consider whether Apprendi involves a matter of substantive law or whether it announces a new rule of criminal procedure. Not all cases are easily categorized as being either substantive or procedural. If the new rule gleaned from Apprendi is the holding that every element of a crime must be submitted to the jury, then it is a procedural rule which should be analyzed under Teague standards. If, on the other hand, Apprendi is read as refining the definition of an element of a federal offense, it is a substantive decision governed by Davis v. United States, 417 U.S. 333, 346-47 (1974)(holding that a defendant may assert in a § 2255 proceeding a claim based on an intervening substantive change in the interpretation of a federal criminal statute). The Government has taken no position on this question in the brief filed in the case at bar.

This circuit has twice in recent years applied new Supreme Court decisions retroactively on collateral review based on our conclusion that the decisions were substantive rather than procedural. In United States v. Lopez, 248 F.3d 427 (5th Cir. 2001), Lopez filed a § 2255 motion attacking his conviction for engaging in a continuing criminal enterprise. He argued that the Supreme Court's decision in Richardson v. United States, 526 U.S. 813 (1999), handed down after his sentence became final, should be retroactively applied to his case and that his sentence was therefore void. Lopez, 248 F.3d at 429. Richardson held that a jury must be instructed to reach a unanimous verdict on each of the specific violations that comprise the alleged continuing series of violations charged in the indictment. Richardson, 526 U.S. at 821, 119 S.Ct. 1707. We concluded that Richardson was a "new rule," Lopez, 248 F.3d at...