USA. v. Roberson

• Decision Date: 19 November 1998
• Docket Number: No. 97-7309,97-7309
• Citation: 194 F.3d 408
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA, v. KEVIN ROBERSON, Appellant Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 408

194 F.3d 408 (3rd Cir. 1999)

UNITED STATES OF AMERICA, v. KEVIN ROBERSON, Appellant

No. 97-7309

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: November 19, 1998

Filed October 14, 1999

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. No. 88-cr-00173)(District Court Judge: Honorable William W. Caldwell)

WILLIAM A. BEHE ERIC PFISTERER (ARGUED) OFFICE OF THE UNITED STATES ATTORNEY

Federal Building 228 Walnut Street Harrisburg, PA, Counsel for Appellee.

STEPHEN M. LATIMER (ARGUED) LOUGHLIN & LATIMER 131 Main Street Suite 235 Hackensack, NJ, Counsel for Appellant

Before: GREENBERG and ALITO, Circuit Judges, and GODBOLD, Senior Circuit Judge^*

OPINION OF THE COURT

ALITO, Circuit Judge:

The question presented for our review is whether applying AEDPA's gatekeeping provisions to a 28 U.S.C. S 2255 motion filed after AEDPA's effective date would have an impermissible retroactive result if the movant filed his first S 2255 motion prior to AEDPA's enactment. We conclude that the application of AEDPA's gatekeeping provisions to Kevin Roberson's second S 2255 motion would have no impermissible retroactive result, and thus we hold that amended SS 2244(b)(3)(A) and 2255 require us to deny Roberson's request for authorization to proceed with his second motion.

I.

On March 3, 1989, Kevin Roberson pleaded guilty to a felony information charging him with conspiracy to distribute crack cocaine, in violation of 21 U.S.C. SS 841(a)(1) and 846, distribution of crack cocaine, in violation of 21 U.S.C. S 841(a)(1), and aiding or abetting the distribution of crack cocaine, in violation of 21 U.S.C. S 841(a)(1) and 18 U.S.C. S 2. The District Court sentenced Roberson to 30 years of imprisonment on both the conspiracy and the distribution counts and ordered Roberson to serve the terms concurrently. By means of a judgment order, we affirmed Roberson's conviction on appeal and rejected his contention that the District Court lacked a reasonable factual basis to find by a preponderance of the evidence that his offense involved the distribution of at least 500 grams of cocaine base.

On July 17, 1991, Roberson, acting pro se, filed a motion under 28 U.S.C. S 2255 to vacate, set aside, or correct his sentence. See App. at 10-38. One of his arguments was that the sentencing court "lacked sufficient facts upon which to fairly or reasonably conclude that the defendant was responsible for the distribution of 500 grams or more of `crack', either individually or as a member of the conspiracy." App. at 24. On October 7, 1991, the District Court denied Roberson's S 2255 motion, holding that Roberson could not raise this argument in his collateral attack because we previously had rejected the same argument on direct appeal. Appellant's Br. at Tab 6. Roberson appealed, App. at 183, and we dismissed his appeal on January 31, 1992, for failure to prosecute. App. at 184.

On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which, among other things, revised the standards and procedures governing S 2255 petitions. Prior to AEDPA's enactment, federal courts denied second or successive S 2255 motions if the government could demonstrate that the motion constituted an abuse of the writ. See McCleskey v. Zant, 499 U.S. 467, 494 (1991). Courts excused an abuse of the writ only if: (1) the applicant could establish cause and prejudice -i.e., that "some objective factor external to the defense impeded counsel's efforts" to raise the claim earlier and that "actual prejudice result[ed] from the errors of which he complain[ed,]" id. at 493-94 (internal quotation marks and citations omitted); or (2) the applicant could demonstrate that "a fundamental miscarriage of justice would result from a failure to entertain the claim," id.

AEDPA, however, replaced the abuse-of-the writ doctrine articulated in McCleskey. Under AEDPA's new "gatekeeping" provisions, an applicant seeking to file a second or successive S 2255 motion must obtain from "the appropriate court of appeals . . . an order authorizing the district court to consider the application," 28 U.S.C.A. SS 2244(b)(3)(A), 2255 (West Supp. 1999), and a court of appeals may grant such an order only if the motion contains:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) 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.A. S 2255.

On May 28, 1997, Roberson filed a second S 2255 motion in which he raised two grounds for relief. First, he claimed that the sentencing court erred by applying United States Sentencing Guidelines ("U.S.S.G.") S 2D1.1(c)'s enhancement for cocaine base because the government had failed to prove by a preponderance of the evidence that the controlled substance involved in his offense was "crack," as opposed to some other form of cocaine base. App. at 9. Second, he claimed that his counsel at sentencing and on direct appeal was constitutionally ineffective for failing to raise this argument. Id.

The District Court dismissed Roberson's petition, holding that it did not have authority under AEDPA to entertain Roberson's second S 2255 motion unless we issued an order authorizing it to do so. Appellant's Br. at Tab 4. Roberson appealed. As we stated above, AEDPA's amendments require S 2255 movants to file a motion in the appropriate court of appeals for an order authorizing the district court to consider a second or successive application. See 28 U.S.C.A. S 2244(b)(3)(A). Recognizing that the application of AEDPA's new gatekeeping provisions to Roberson's second S 2255 motion might be impermissibly retroactive, we requested that the parties address the following question: whether applying AEDPA's gatekeeping provisions to a second S 2255 motion, which the applicant filed after AEDPA's effective date, would produce an impermissible retroactive result if the applicant filed his first S 2255 motion before AEDPA's enactment.¹

II.

We recently addressed a similar retroactivity question in In re Minarik, 166 F.3d 591 (3d Cir. 1999). In that case, the prisoner filed his first federal habeas petition under 28 U.S.C. S 2254 prior to AEDPA's passage, but filed his second S 2254 motion after AEDPA's effective date. We held that the application of AEDPA's gatekeeping provisions to Minarik's second petition had no impermissible retroactive effect. Id. at 608. In reaching this result, we were guided by two Supreme Court decisions: Landgraf v. USI Film Prods., 511 U.S. 244 (1994), and Lindh v. Murphy, 521 U.S. 320 (1997). We interpreted these cases as establishing the following three principles:

1. There is a strong presumption against applying a statute in a manner that would attach "new legal consequences" to events completed before the statute's enactment, i.e., a manner that would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties." Landgraf, 511 U.S. at 280, 114 S.Ct. 1483.

2. If Congress has focused on the issue, "has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness," and has provided unambiguous evidence of its conclusion by directing that retroactive effect be given, then, and only then, will the presumption be overridden.

3. Consistent with these principles, normal rules of statutory construction "may apply to remove . . . the possibility of retroactivity." Nothing short of an unambiguous directive, however, will justify giving a statute a retroactive effect. Thus, when normal rules of statutory construction indicate that a statute is intended to be applied in a manner involving no retroactive effect, a Court need inquire no further. On the other hand, if such construction suggests that a retroactive effect may have been intended, the traditional presumption nevertheless bars retroactive application unless an unambiguous congressional directive is found.

In re Minarik, 166 F.3d at 597-98.

Informed by these principles, we turn to Roberson's argument that applying AEDPA's gatekeeping provisions to his second S 2255 motion is impermissibly retroactive. We begin our analysis by noting that the gatekeeping provisions at issue here, as in Minarik, are part of AEDPA's chapter 153 amendments. See AEDPA, SS 105-06, Pub.L. No. 104-132, 110 Stat. 1220-21 (1996). Congress did not provide unambiguous evidence of its intent to apply AEDPA's chapter 153 amendments to cases in which a prisoner filed his first S 2255 or S 2254 motion prior to AEDPA's effective date. See Lindh, 521 U.S. at 327-29; Minarik, 166 F.3d at 599; United States v. Ortiz, 136 F.3d 161, 165 (D.C. Cir. 1998); In re Hanserd, 123 F.3d 922, 924 (6th Cir. 1997); Burris v. Parke, 95 F.3d 465, 468 (7th Cir. 1996) (en banc).

Furthermore, we held in Minarik that normal rules of statutory construction do not remove the possibility of retroactivity where a prisoner's first and second S 2254 petitions straddle AEDPA's effective date. See 166 F.3d at 598. We stated:

Lindh held that AEDPA's text, read in light of normal principles of statutory interpretation, evidences a congressional intent that AEDPA's chapter 153 amendments should generally be applied to petitions, like Minarik's, filed after April 24, 1996, the effective date of the Act, but not to petitions, like Lindh's, filed before. This does not resolve the issue before us, however. The finding of congressional intent in Lindh was based on the drawing of a negative inference from Congress's express mandate that AEDPA's new rules regarding certain death penalty cases apply to pending cases. Because Congress had...