U.S. v. Walls

• Decision Date: 12 August 2002
• Docket Number: No. Civ.A. 00-2192-LFO.,No. CR.A. 92-234-LFO.,CR.A. 92-234-LFO.,Civ.A. 00-2192-LFO.
• Citation: 215 F.Supp.2d 159
• Parties: UNITED STATES of America, v. Riley S. WALLS, Defendant.
• Court: U.S. District Court — District of Columbia

215 F.Supp.2d 159

UNITED STATES of America, v. Riley S. WALLS, Defendant.

No. CR.A. 92-234-LFO.

No. Civ.A. 00-2192-LFO.

United States District Court, District of Columbia.

August 12, 2002.

COPYRIGHT MATERIAL OMITTED

Patrick S. Kim, U.S. Attorney's Office, Chrisellen Rebecca Kolb, U.S. Attorney's Office, Appellate Division, Washington, DC, for U.S.

Richard Steven Stern, Washington, DC, for Defendant.

MEMORANDUM

OBERDORFER, District Judge.

Pending is one claim remaining from Defendant Riley Walls's pro se 28 U.S.C. § 2255 motion, in which Walls challenges his life sentence for various drug offenses on the basis of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

I.

A jury convicted Walls of one count of conspiracy to distribute fifty grams or more of cocaine base, three counts of distribution of fifty grams or more of cocaine base, and various related offenses. As of sentencing, Walls had fifteen prior criminal convictions, more than two of which were drug felonies. Finding that the drug conspiracy involved distribution of 538 grams of crack cocaine, I sentenced Walls to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).¹ See United States v. Walls, 841 F.Supp. 24 (D.D.C.1994), aff'd, 70 F.3d 1323 (D.C.Cir. 1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996).

Walls filed a § 2255 motion on September 8, 2000, claiming that: 1) he received ineffective assistance of counsel; 2) the government did not properly notify him of its intention to seek an enhanced sentence; and 3) his life sentence contravenes Apprendi. On May 9, 2002, I denied Walls's § 2255 motion as untimely with respect to his two non-Apprendi claims. See United States v. Walls, 841 F.Supp. 24 (D.D.C. 2002). As of that time, the government had not responded to Walls's Apprendi claim. I therefore ordered the government to respond to Walls's Apprendi claim and to address, in particular, whether Apprendi is retroactively applicable to cases on collateral review and, if so, whether Walls is procedurally barred from using it to challenge his sentence.²

II.

In Apprendi, the Supreme Court held, "Other 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." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In the context of drug cases, this means that when drug quantity causes a defendant's sentence to exceed the statutory maximum, it must be stated in the indictment and proven to a jury beyond a reasonable doubt. See United States v. Fields, 251 F.3d 1041, 1043 (D.C.Cir.2001). Apprendi thus invalidated the previous understanding that drug quantity is a sentencing factor to be determined by a judge. See United States v. Fields, 242 F.3d 393, 395-96 (D.C.Cir.2001) (overruling United States v. Lam Kwong-Wah, 966 F.2d 682, 685-86 (D.C.Cir.1992)).

Invoking Apprendi, Walls asserts that a specific drug quantity attributable to him was neither alleged in his indictment nor submitted to a jury and proven beyond a reasonable doubt. Accordingly, Walls argues he faces a maximum sentence of twenty years' imprisonment pursuant to 21 U.S.C. § 841(b)(1)(C), which governs sentences for drug offenses without regard to drug quantity. Walls, however, received a life sentence based in part on my finding that he had distributed and conspired to distribute 538 grams of crack cocaine, triggering the sentencing scheme set forth in 21 U.S.C. § 841(b)(1)(A). See Walls, 841 F.Supp. at 26. He thus asks that he be resentenced in accordance with 21 U.S.C. § 841(b)(1)(C).

The government contends that Apprendi does not apply retroactively to cases on initial collateral review, and thus Walls cannot use it to challenge his life sentence.³ Generally, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced," unless they fall within one of two exceptions. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The first exception involves rules that forbid "criminal punishment of certain primary conduct" or prohibit "a certain category of punishment for a class of defendants because of their status or offense." O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (internal quotation marks and citation omitted). The second exception describes "watershed" rules of criminal procedure that are "aimed at improving the accuracy of trial" and "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (internal quotation marks and citations omitted).

Whether Apprendi applies retroactively to an initial § 2255 motion is an open question in this circuit. See United States v. Hicks, 283 F.3d 380, 389 (D.C.Cir.2002) (declining to decide the issue).⁴ The seven circuits that have addressed the issue are unanimous that it does not. These circuits generally have held that while Apprendi created a "new rule" of constitutional criminal procedure, it is not a "watershed" rule capable of triggering Teague's second exception.⁵ See Curtis v. United States, 294 F.3d 841, 844 (7th Cir.2002); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002); McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001); United States v. Moss, 252 F.3d 993, 1001 (8th Cir.2001); United States v. Sanders, 247 F.3d 139, 151 (4th Cir.2001); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir.2000); Goode v. United States, 39 Fed.Appx. 152, 2002 WL 987905 (6th Cir.2002).

I conclude that Apprendi is not retroactively applicable to an initial § 2255 motion, and thus it cannot serve to invalidate Walls's life sentence. As an initial matter, Apprendi clearly set forth a "new rule" of criminal procedure. The Supreme Court has explained that "[a] holding constitutes a `new rule' within the meaning of Teague if it `breaks new ground,' `imposes a new obligation on the States or the Federal Government,' or was not `dictated by precedent existing at the time the defendant's conviction became final.'" Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060). Apprendi's rule that certain facts previously considered sentencing factors must now be submitted to a jury as elements of an offense certainly qualifies under this definition. See, e.g., Sanders, 247 F.3d at 147.

I am not convinced, however, that Apprendi announced a "watershed" rule that "implicates the fundamental fairness of trial" as required by Teague's second exception. The Supreme Court has explained that Teague's second exception "is clearly meant to apply only to a small core of rules." Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). To illustrate the type of rule that qualifies for this narrow exception, the Court has cited Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which held that the Sixth Amendment guarantees an indigent defendant in a state criminal prosecution the right to court-appointed counsel. See, e.g., Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).

I find that Apprendi is not of the same magnitude as Gideon so as to qualify as a "watershed" rule. Apprendi shifted from the judge to the jury the responsibility for determining "any fact that increases the penalty for a crime beyond the prescribed statutory maximum." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In so doing, Apprendi also subjected such facts to proof beyond a reasonable doubt, rather than by a preponderance of the evidence. This reallocation of fact-finding duties and heightened standard of proof will, presumably, result in more accurate trials in some cases.⁶ However, it cannot be considered to have "alter[ed] our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Sawyer, 497 U.S. at 242, 110 S.Ct. 2822. Apprendi's procedural changes do not apply to every criminal trial. Rather, even after Apprendi, a judge may still decide facts relevant to sentencing by a preponderance of the evidence, as long as the resulting sentence does not exceed the statutorily prescribed maximum sentence for the crime in question. See United States v. Fields, 251 F.3d 1041, 1044-45 (D.C.Cir.2001) ("Apprendi does not apply to enhancements under the Sentencing Guidelines when the resulting sentence remains within the statutory maximum.").

Furthermore, a failure to observe Apprendi's requirements is not necessarily fatal to a conviction. Recently, in United States v. Cotton, ___ U.S. ___, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the Supreme Court held that when a defendant does not challenge at the trial level the omission of a specific drug quantity from the indictment and the failure to submit it to a jury, his sentence is subject to plain error review, even when it violates Apprendi. See id. at 1786.⁷ In Cotton, the Supreme Court held that several defendants were sentenced in violation of Apprendi because drug quantity was not alleged in their indictments or proven to a jury, but that this error "did not seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. The Court explained that "the fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments." Id. at 1787. The Court continued, "The real threat then to the `fairness, integrity, and public reputation of judicial proceedings' would be if respondents, despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at...