USA v. Newman

• Decision Date: 09 March 2000
• Docket Number: No. 97-50508,97-50508
• Citation: 203 F.3d 700
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellant, v. ERWIN DARRELL NEWMAN,AMENDED OPINION Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 700

203 F.3d 700 (9th Cir. 2000)

UNITED STATES OF AMERICA,Plaintiff-Appellant, v. ERWIN DARRELL NEWMAN,AMENDED OPINION Defendant-Appellee.

No. 97-50508

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 10, 1999

Decided February 9, 2000

As Amended on Grant of Rehearing March 9, 2000

COUNSELL: Ronald L. Cheng, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellant.

Korey House, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California. Robert M. Takasugi, District Judge, Presiding. D.C. No. CR-94-00717-RMT

Before: Melvin Brunetti and A. Wallace Tashima, Circuit Judges, and William W Schwarzer, ¹ District Judge.

BRUNETTI, Circuit Judge:

The government's petition for rehearing is granted and the opinion is amended as follows: The government appeals from the district court's decision granting Erwin Darrell Newman's habeas petition for credit towards his sentence for time spent at a residential drug treatment center while on pre-trial release. On June 5, 1995, the Supreme Court decided Reno v. Koray, 515 U.S. 50, 52 (1995), which held that a defendant's prison sentence could not be reduced, pursuant to 18 U.S.C. S 3585(b), by the duration of his confinement to a community treatment center as a condition of his release on bail. The district court declined to apply Koray, which was decided after Newman's pre-trial release on bail to the drug treatment center and after he pled guilty but before he was sentenced, because it determined that the retroactive application of Koray to Newman's habeas petition would violate due process.

On August 26, 1994, Newman was indicted on the charge of unarmed bank robbery. A few weeks later, on September 13, 1994, he was released on a $10,000 secured bond with a condition of participating in residential drug treatment. On December 9, 1994, Newman pled guilty to the charge of unarmed bank robbery, and on July 17, 1995, he was sentenced to forty-six months imprisonment, three years supervised release, and a $50 special assessment. Pursuant to a request by Newman, service of the sentence was delayed until February 21, 1996 to allow him to complete the drug treatment program. However, on November 29, 1995, a warrant was sought for Newman's arrest because he had tested positive for cocaine use.

On October 28, 1996, Newman filed a letter with the court seeking an order awarding him sentence credit for the time spent on pre-trial release at the residential drug treatment program prior to June 5, 1995, the date Koray was issued by the Supreme Court. The district court treated Newman's letter challenging the Bureau of Prisons' calculation of credit for time served as a motion for habeas corpus under 28 U.S.C. S 2241. On August 26, 1997, the district court issued a written order granting Newman's credit request.

In reaching its decision, the district court reasoned that departure from the general rule that judicial decisions are to be applied retroactively was warranted under the three-factor test set forth in United States v. Robinson, 958 F.2d 268, 271 (9th Cir. 1992). Under this test, an exception to the rule of retroactivity of judicial decisions was permitted where (1) the judicial decision established a new rule of law, (2) the retroactive application will retard the purposes of the rule in question, and (3) applying the new decision will produce substantial inequitable results. Id. Applying this test, the district court found that Koray established a new rule of law, retroactive application of Koray will produce substantial inequitable results, and any policy of uniformity of the new rule is outweighed by Newman's constitutional right to due process.

On appeal, both sides agree that the district court erred in relying on Robinson's three-factor test. The government argues that Robinson's three-factor test, which is the same test set forth by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), has been discredited by the subsequent Supreme Court decisions of Griffith v. Kentucky , 479 U.S. 314 (1987), and Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993). We agree. Griffith held that a decision announcing a new constitutional rule of law is to be applied retroactively to all criminal cases pending on direct review, with no exception for cases in which the new rule constitutes a "clear break" from the past. 479 U.S. at 328. Harper expressly rejected Chevron Oil's three-part test for exceptions to the general rule of retrospective effect for judicial decisions in the civil context. 509 U.S. at 97-98. It held that when the Supreme Court "applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the Supreme Court's] announcement of the rule." Id. at 97.

Because habeas petitions are civil rather than criminal in nature, Harper governs this case, although Harper dealt with "cases still open on direct review," and not specifically with habeas cases. 509 U.S. at 97. Under Harper , the retroactive application of Koray to Newman's habeas petition is proper because Koray applied the federal rule decided in that case to the parties before it. See Koray, 515 U.S. at 65; see also Tanner v. Sivley, 76 F.3d 302 (9th Cir. 1996) (applying Koray retroactively without any discussion of the retroactive application issue).

Newman's argument that retroactive application of Koray would violate his due process rights is without merit. In Bouie v. City of Columbia, 378 U.S. 347, 352-55 (1964), the Supreme Court held that an unforeseeable judicial enlargement of a criminal statute, applied retroactively, is barred by the due process clause. Here, Newman apparently contends that Koray, applied retroactively, would enlarge the penalty for his crime under section 3585(b) because it denies credit for time spent pre-trial in residential drug treatment even though credit was available...