U.S. v. Sanchez-Cervantes

• Decision Date: 01 March 2002
• Docket Number: No. 98-35897.,98-35897.
• Citation: 282 F.3d 664
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan SANCHEZ-CERVANTES, aka Hugo Quirox, Quiroc, Quiroz, Quiroz Trejo, and Quiroz Tapia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 664

UNITED STATES of America, Plaintiff-Appellee, v. Juan SANCHEZ-CERVANTES, aka Hugo Quirox, Quiroc, Quiroz, Quiroz Trejo, and Quiroz Tapia, Defendant-Appellant.

No. 98-35897.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2001.

Filed March 1, 2002.

As Amended March 15, 2002.

William S. Labahn, Law Offices of William S. Labahn, P.C., Eugene, OR, for the defendant-appellant.

Michael A. Rotker, Assistant United States Attorney, Washington, DC, and Christopher L. Cardani, Assistant United States Attorney, Eugene, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CV-97-6091-MRH.

Before: HUG, T.G. NELSON, and GOULD, Circuit Judges.

T.G. NELSON, Circuit Judge.

Juan Sanchez-Cervantes appeals from the district court's denial of his initial petition for relief pursuant to 28 U.S.C. § 2255. Sanchez-Cervantes argues that his conviction and sentence for federal drug violations should be vacated because of the rule announced in Apprendi v. New Jersey¹ and because he received ineffective assistance of counsel at trial. We hold that the new rule of criminal procedure announced in Apprendi does not apply retroactively on initial collateral review, and Sanchez-Cervantes' counsel did not render ineffective assistance. Therefore, we affirm the district court's dismissal of Sanchez-Cervantes' habeas petition.

I.

On March 18, 1993, Juan Sanchez-Cervantes was indicted on one count of possession with intent to distribute methamphetamine, one count of possession with intent to distribute cocaine, one count of conspiracy to distribute controlled substances all in violation of 21 U.S.C. § 841(a)(1), and one count of illegal reentry into the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). At trial, the Government introduced evidence that Sanchez-Cervantes conducted numerous drug deals and that he illegally reentered the country, as well as evidence of Sanchez-Cervantes' prior drug convictions. Sanchez-Cervantes testified at trial and admitted to illegally reentering the United States and to being a small-time drug dealer. However, he denied any involvement in a conspiracy. Of the seven co-defendants on trial, Sanchez-Cervantes was the only one to testify.

The jury convicted Sanchez-Cervantes on all counts, but made no findings as to drug quantities. After determining, based on the presentence drug report, that Sanchez-Cervantes was responsible for 280.6 grams of methamphetamine, 1,387.3 grams of cocaine, and 176 grams of marijuana, the judge sentenced Sanchez Cervantes to 295 months' imprisonment and a five-year term of supervised release.

Sanchez-Cervantes appealed his conviction and sentence, which we affirmed on April 26, 1996. He then filed a pro se § 2255 petition, which the district court denied. He appealed the denial of his § 2255 petition. We granted his motion to sever his appeal from the appeals of his co-defendants and remanded to the district court to consider his ineffective assistance of counsel claim, which was based on trial counsel's advice encouraging Sanchez-Cervantes to testify at trial. The district court granted Sanchez-Cervantes' application for a court-appointed attorney, and his new attorney moved to sever his petition from those of his co-defendants. The district court severed Sanchez-Cervantes' petition from those of his co-defendants and agreed to hear the ineffective assistance of counsel claim.

While the case was pending in the district court, the Supreme Court decided Apprendi. Sanchez-Cervantes sought to amend his petition, arguing that his sentence violated the ruling in Apprendi because the court did not submit the drug quantity determination to the jury to be found beyond a reasonable doubt. The district court allowed Sanchez-Cervantes to amend his petition in light of Apprendi.

On November 21, 2000, the district court held an evidentiary hearing on the ineffective assistance of counsel claim. After the hearing, the district court denied Sanchez-Cervantes' petition as to both the ineffective assistance of counsel claim and the Apprendi claim. The court ruled that Sanchez-Cervantes made a knowing and voluntary decision to testify and that his counsel's advice was based on a strategic decision that was not objectively unreasonable. The court also held that Apprendi cannot be applied retroactively to cases on initial collateral review. Sanchez-Cervantes filed this appeal. We review a district court's decision to deny a § 2255 petition de novo.²

II.

At the time of Sanchez-Cervantes' trial and sentencing, all of the circuits in the country allowed a judge to determine the drug quantity for which the defendant was responsible by a preponderance of the evidence. After Sanchez-Cervantes filed his § 2255 petition, the Supreme Court ruled in Apprendi 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."³ Sanchez-Cervantes asserts that by allowing the judge to determine the drug quantities, his sentence violated the rule established in Apprendi.⁴ Before we can reach the merits of his claim, we must determine whether the ruling in Apprendi applies retroactively to initial petitions for collateral review. We decide that it does not. Accordingly, we affirm the district court's decision and do not reach the merits of Sanchez-Cervantes' claim.

In Teague v. Lane,⁵ the Supreme Court held that new constitutional rules of criminal procedure that had not been announced at the time the defendant's conviction became final cannot be applied retroactively on collateral review unless they fit within one of two narrow exceptions.⁶ These exceptions exist if a new rule (1) "places certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe," or (2) "requires the observance of those procedures that ... are implicit in the concept of ordered liberty."⁷ Thus, in order to apply the rule of Apprendi retroactively, we must determine that Apprendi is a new rule of criminal procedure that fits into one of Teague's exceptions.

Before we apply the Teague analysis, we must address Sanchez-Cervantes' argument that Teague does not apply in this case because Teague involved a state prisoner's § 2254 petition, not a federal prisoner's § 2255 petition. This argument fails. Although we have not specifically held that Teague applies to § 2255 petitions, we have applied it in that context.⁸ To clarify our position, we now hold, along with the Second, Fourth, Seventh, and Tenth Circuits, that Teague does apply to federal prisoners.⁹ The rule against retroactive application of new laws supports important interests of finality that pertain to both the federal system and the state system.¹⁰ It would seem inequitable to impose a federal/state dichotomy onto the Teague analysis and allow Teague's general rule against retroactivity to deny use of a new rule to state prisoners but allow such use to federal prisoners because Teague does not apply to them. The history of the Supreme Court's jurisprudence supports this conclusion. Teague was based on earlier opinions by Justice Harlan that considered the retroactivity analysis in the context of § 2255 petitions.¹¹ Thus, the Teague retroactivity doctrine applies to both § 2254 and § 2255 habeas petitions.

In Jones v. Smith,¹² we applied the Teague retroactivity analysis to the rule established in Apprendi.¹³ In Jones, an element of the crime was omitted from the state court information, but the jury instructions were proper as to all the elements.¹⁴ In analyzing whether Apprendi was retroactive, we held that Apprendi was a new rule of criminal procedure, thus satisfying the first step of the analysis.¹⁵ We went on to hold that the Apprendi rule, "at least as applied to the omission of certain necessary elements from the state court information," did not fit into either Teague exception.¹⁶ Thus, we declined to apply Apprendi retroactively. Because Jones limited its analysis and holding regarding the Teague exceptions to the facts of that case, it guides but does not control our decision here. We must now examine whether Apprendi, by requiring the jury to make drug quantity findings beyond a reasonable doubt, fits within one of Teague's exceptions. We hold that it does not.

Pursuant to Teague's first exception, the first category of rules that will be applied retroactively include those placing "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority."¹⁷ Apprendi neither decriminalized drug possession or drug conspiracies nor placed such conduct beyond the scope of the state's authority to proscribe. Thus, the first exception does not apply here. The other circuits that have addressed this exception in the context of the drug statutes agree.¹⁸ The matter rests on whether requiring the jury to make drug quantity determinations beyond a reasonable doubt falls within Teague's second exception.

The second exception in Teague allows courts to apply certain "watershed rules of criminal procedure" retroactively.¹⁹ These rules must be applied retroactively if a failure to adopt them will result in an impermissibly large risk that the innocent will be convicted and if the procedure at issue implicates the fundamental fairness of the trial.²⁰ The Supreme Court has stated that to qualify under Teague, these rules must not only improve the accuracy of the trial but also alter our understanding of the "bedrock procedural elements essential to the fairness of a proceeding."²¹ The sweeping rule announced in Gideon v. Wainwright,²² that counsel shall be provided in all criminal trials for serious offenses, is the prototypical example of a watershed rule.²³

We do not believe...