On Appeal From the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 92-06899).
Before: Becker, Nygaard and Weis, Circuit Judges.
This appeal from an order of the district court dismissing a petition for writ of habeas corpus presents the question whether the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, as applied through the Fourteenth Amendment, prohibits an enhanced sentence in a state resentencing proceeding brought pursuant to Pennsylvania's Drug Trafficking Mandatory Minimum Sentencing Statute, 18 Pa.Cons.Stat.Ann. § 7508 (1990), after the initial sentence was reversed on appeal. Resolution of this issue requires us to decide which of two arguably controlling Supreme Court decisions determines the outcome. In Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), the Supreme Court held that the Double Jeopardy Clause precluded the state from seeking the death penalty at a second capital sentencing proceeding after the defendant's first jury declined to impose such a penalty. In contrast, in United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980), the Court found no violation of the Double Jeopardy Clause resulting from a sentence enhancement under former 18 U.S.C. § 3576 following appellate review in a noncapital case. We conclude that DiFrancesco is controlling and hold that the Double Jeopardy Clause does not bar the Pennsylvania proceeding at issue. We therefore affirm the order of the district court dismissing the habeas corpus petition.
Petitioner, Joseph Wilmer, was convicted following a bench trial in the Court of Common Pleas of Philadelphia County of possessing crack cocaine with intent to deliver. Wilmer had been found with 61 clear plastic vials with orange caps containing an off-white substance. Two of the vials were analyzed by the Commonwealth's chemist and found to contain cocaine, 37 and 43 milligrams respectively.*fn1 The Commonwealth timely notified Wilmer of its intent to proceed under the mandatory sentencing provisions of 18 Pa.Cons.Stat.Ann. § 7508, Pennsylvania's Drug Trafficking Mandatory Minimum Sentencing Statute.*fn2
At a sentencing hearing on April 5, 1990, the issue was whether petitioner was subject to § 7508(a)(3)(i), which provided for a mandatory minimum sentence of one year and a $5,000 fine when "the amount of the substance involved is at least 2.0 grams and less than ten grams."*fn3 The evidence presented at the sentencing hearing (established through stipulation) showed that the aggregate weight of the substance when the contents of the sixty-one vials were mixed was 2.6 grams. The state did not show what portion of the 2.6 grams was actually cocaine as opposed to a non-cocaine substance used to dilute the mixture.*fn4
The trial court held that the Commonwealth had not proved by a preponderance of the evidence that the amount of cocaine involved was 2.0 grams. Only 2 of 61 vials had been analyzed, and the amount of cocaine discovered in these two vials, in the court's view, did not justify an extrapolation to 2.0 grams of cocaine in the 61 vials. The court therefore refused to apply § 7508(a)(3)(i) and instead sentenced Wilmer to 9 to 18 months confinement to be followed by one year of probation. The Commonwealth appealed the sentence pursuant to § 7508(d), which authorizes an appeal by the Commonwealth when the sentencing court fails to apply the mandatory minimum sentence required by that statute. The Pennsylvania Superior Court reversed and remanded the case for imposition of the more severe sentence, holding that the sampling of only 2 of 61 vials was adequate to support the extrapolation. Wilmer's request for allocatur was denied by the Pennsylvania Supreme Court.
On December 2, 1992, Wilmer filed a petition for a writ of habeas corpus in the District Court for the Eastern District of Pennsylvania. The sole claim raised was the alleged impingement of the constitutional right not to be placed twice in jeopardy by reason of being subjected to a second sentence enhancement proceeding under 18 Pa.Cons.Stat.Ann. § 7508. Respondents*fn5 answered the petition, addressing its merits.*fn6 The district court dismissed the petition, and this appeal followed. On June 10, 1993, a motions panel of this court granted Wilmer's request for a certificate of probable cause to appeal and appointed counsel. After briefs were filed, the Supreme Court granted certiorari in Caspari v. Bohlen, 125 L. Ed. 2d 660, 113 S. Ct. 2958 (1993), which presented an issue virtually identical to this appeal. This (merits) panel stayed the appeal pending the outcome of Caspari v. Bohlen, 127 L. Ed. 2d 236, 114 S. Ct. 948 (1994). We then requested and received supplemental briefing on Caspari 's impact on the case.*fn7
We must initially determine whether the Supreme Court's decision in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)(plurality opinion), bars consideration of the double jeopardy issue. Under Teague, a federal court is precluded from "granting habeas corpus relief to a state prisoner based on a [new] rule announced after his conviction and sentence became final." Caspari v. Bohlen, 114 S. Ct. at 953 (citation omitted). The Teague analysis is ordinarily the first step when reviewing a federal habeas case. Schiro v. Farley, 127 L. Ed. 2d 47, 114 S. Ct. 783, 788 (1994). The rule, however, is not jurisdictional, and "a federal court may, but need not, decline to apply Teague if the State does not argue it." Caspari, 114 S. Ct. at 953.
In this case, respondents failed to raise a Teague argument in the district court or in their brief on appeal. The issue was not raised until we, sua sponte, requested supplemental briefs addressing the nonretroactivity principle. Not surprisingly, the respondents now argue that Teague forecloses any habeas relief. Relying primarily on the Supreme Court's recent opinion in Caspari, they contend that Wilmer's double jeopardy argument, if accepted, would constitute a new rule which cannot be applied retroactively in a collateral proceeding.*fn8
The respondents' argument has obvious force. In Caspari, the habeas petitioner claimed that the Double Jeopardy Clause prohibited the state from subjecting him to successive noncapital sentence enhancement proceedings. The State argued, as it had in the lower courts and in its brief on the merits, that the nonretroactivity principle articulated in Teague barred the relief sought by the petitioner. Agreeing with the state, the Supreme Court declined to address the merits of the double jeopardy claim. Instead, the Court held that granting the petitioner's request for relief "required the announcement and application of a new rule of constitutional law." Id. at 957. The Court found that "neither of the two narrow exceptions to the nonretroactivity principle applied to the case," since the "new rule" was neither the type that placed "certain kinds of primary, private individual conduct beyond the ...