Ware v. U.S.

• Decision Date: 08 December 2000
• Docket Number: No. 3:00-0262.,3:00-0262.
• Citation: 124 F.Supp.2d 590
• Parties: Robert WARE, Jr., Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

124 F.Supp.2d 590

Robert WARE, Jr., Petitioner, v. UNITED STATES of America, Respondent.

No. 3:00-0262.

United States District Court, M.D. Tennessee, Nashville Division.

December 8, 2000.

COPYRIGHT MATERIAL OMITTED

Robert Ware, Memphis, TN, Pro se.

Michael L. Roden, Mercedes C. Maynor-Faulcon, Office of the United States Attorney, Nashville, for Respondent.

MEMORANDUM

WISEMAN, Senior District Judge.

Petitioner Robert Ware, Jr., seeks review of his sentence under 28 U.S.C. § 2255. For the reasons set forth below, his petition is denied.

I.

On March 7, 1997, a jury convicted Petitioner Robert Ware, Jr., for three drug offenses. This Court sentenced him to 360 months in prison. The Court of Appeals for the Sixth Circuit affirmed his conviction on December 3, 1998. The Supreme Court denied certiorari on March 29, 1999.

On March 27, 2000, Ware filed a petition under 28 U.S.C. § 2255, seeking review of his sentence. The Court later permitted him to file an amended petition. He asserts, pursuant to the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the Government should have specified the amount of drugs in each count charged in the indictment and that the Court should have submitted the issue of the weight of the drugs to the jury for proof beyond a reasonable doubt.¹ He also asserts that the indictment violated the Double Jeopardy Clause, that his Base Offense Level was set according to an unconstitutional standard, and that he received ineffective assistance of counsel.

II.

In Apprendi, the Supreme Court announced that "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." 530 U.S. at ___ _ ___, 120 S.Ct. at 2363-64. Courts are now recognizing that this rule changes how the weight of drugs must be treated in drug convictions. Courts can no longer treat the weight of the drugs as a sentencing factor that the trial judge can determine under a preponderance of the evidence standard. Instead, when the amount of drugs will increase the sentence beyond the maximum penalty that applies regardless of weight, the Government must charge the weight of the drugs in the indictment and must prove the weight of the drugs to a jury beyond a reasonable doubt. See United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000); United States v. Angle, 230 F.3d 113 (4th Cir. 2000); United States v. Doggett, 230 F.3d 160 (5th Cir.2000).

Under Apprendi, it was error not to specify the weight of the drugs in Ware's indictment and not to allow a jury to determine the weight of the drugs beyond a reasonable doubt. However, the Supreme Court decided Apprendi on June 26, 2000, more than a year after Ware's case became final. Thus, the question is whether this Court should apply Apprendi retroactively to cases on collateral review.

In Teague v. Lane, the Supreme Court adopted a test for retroactivity that Justice Harlan had developed in a prior case: new constitutional rules of criminal procedure "should always be applied retroactively to cases on direct review, but ... generally ... should not be applied to criminal cases on collateral review." 489 U.S. 288, 303, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (citing Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)) (separate opinion of Harlan, J.). The Court announced two exceptions to this rule. First, a new rule should apply retroactively if it prevents the law-making authority from criminalizing certain kinds of individual conduct. Id. at 307, 109 S.Ct. 1060. Second, the rule should apply retroactively if it "requires the observance of the procedures `implicit in the concept of ordered liberty.'" Id. (citations omitted). The Court has also described this exception as applying to "watershed rules fundamental to the integrity of the criminal proceeding." Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Only the second exception is potentially applicable to this case.

To summarize, the rule in Apprendi will apply retroactively if it is not a "new" rule as defined by the Supreme Court. If it is a "new" rule, it still might apply retroactively if it is a substantive rule instead of a procedural rule: Teague only bars retroactive application of the latter. If it is both "new" and a rule of criminal procedure, it will apply retroactively only if it is a "watershed rule fundamental to the integrity of the criminal proceeding" within the meaning of the second Teague exception.

(A) Did Apprendi announce a "new" rule?

In Teague, the Court explained that "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or Federal Government.... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301, 109 S.Ct. 1060. This requirement ensures that gradual developments in the law ("new laws") will not be used to upset good-faith interpretations of precedent existing at the time of the conviction. Sawyer, 497 U.S. at 234, 110 S.Ct. 2822. It also recognizes that "the purpose of federal habeas corpus is to ensure that convictions comply with federal law in existence at the time the conviction became final, and not to provide for a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrines." Id.

To determine whether a rule is new, the court must assess the state of the law as it existed at the time the conviction became final and then determine whether the trial court should have felt compelled to adopt the rule at issue. O'Dell v. Netherland, 521 U.S. 151, 159, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). If, in light of existing law, the trial court acted reasonably by not adopting the rule, the rule is "new" under Teague. See id. ("Teague asks state-court judges to judge reasonably, not presciently."); see also Cain v. Redman, 947 F.2d 817, 821 (6th Cir.1991) (a rule sought by federal habeas petition is "new" as long as the correctness of the rule is susceptible to debate among reasonable minds) (citing Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 1217 (1990)). The most frequently cited pronouncement of a "new" rule is Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which announced the right to counsel in all criminal trials for serious offenses.

The rule in Apprendi is "new" under Teague. To begin with, the sheer number of opinions in Apprendi indicates that existing law did not compel the rule announced therein. O'Dell, 521 U.S. at 159, 117 S.Ct. 1969 ("The array of views expressed in Simmons itself suggests the rule announced there was, in light of this court's precedent, `susceptible to debate among reasonable minds.'"). Specifically, five justices joined in the opinion of the court, and two of those — Thomas and Scalia — issued concurring opinions, Thomas arguing for an even broader rule than that adopted by the majority. Four justices dissented in two opinions.

Although Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), articulated the principle that any fact that increases the maximum penalty for a crime must be charged in the indictment and submitted to the jury — and in that sense can be said to prefigure Apprendi — the Supreme Court has clearly held that a rule can still be new even if a prior decision informs, controls, or governs the case that announces the rule. Sawyer, 497 U.S. at 236, 110 S.Ct. 2822; see Michigan v. Payne, 412 U.S. 47, 56 n. 12, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973). To prevent a rule from being considered "new," prior case law must actually compel the result, which was not the case here.² The Supreme Court noted in Jones that its "prior cases suggest rather than establish" the principle that any fact that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. 526 U.S. at 243 n. 6, 119 S.Ct. 1215. Also, before Apprendi, numerous courts had held that the amount of drugs was not an element of the offense to be submitted to the jury under 21 U.S.C. § 841, but instead was a sentencing factor under the statute's penalty provisions. United States v. Cisneros, 112 F.3d 1272 (5th Cir.1997); United States v. Dorlouis, 107 F.3d 248 (4th Cir.1997); United States v. Silvers, 84 F.3d 1317 (10th Cir.1996); United States v. Moreno, 899 F.2d 465 (6th Cir.1990); United States v. Gibbs, 813 F.2d 596 (3rd Cir.1987); United States v. Wood, 834 F.2d 1382 (8th Cir.1987). Furthermore, numerous courts continued to find that the quantity of drugs was a sentencing factor under 21 U.S.C. § 841 even in light of the Jones decision. United States v. Hester, 199 F.3d 1287, 1291-92 (11th Cir.2000); United States v. Thomas, 204 F.3d 381, 382 (2nd Cir.2000); United States v. Jones, 194 F.3d 1178, 1186 (10th Cir.1999); United States v. Williams, 194 F.3d 100, 106-7 (D.C.Cir.1999). The fact that so many courts have consistently followed a practice contrary to the rule announced in Apprendi serves as proof that the rule is new. See Cain v. Redman, 947 F.2d 817, 821 (6th Cir.1991) (pervasive use of a jury instruction that was contrary to what the Supreme Court eventually deemed a rule was evidence that the Supreme Court decision broke new ground and imposed new criteria for such instructions). Hence, though the statement in Jones anticipated or supported what became a rule in Apprendi, prior case law did not dictate the result reached therein.

Ultimately, at the time of Ware's conviction, it was reasonable for the amount of drugs not to be charged in the indictment or submitted to the jury. Thus, the rule in Apprendi is new.

(B) Is the rule in Apprendi a rule of criminal procedure?

Teague only bars retroactive application of new procedural rules.³...