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December 19, 2000


The opinion of the court was delivered by: Bartle, District Judge.


Before the court is the pro se motion of Terrence Gibbs ("Gibbs") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. While Gibbs raises a number of issues, the significant question presented is whether the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is to be given retroactive application on collateral review.

Gibbs, along with 16 other defendants, was indicted for crimes associated with a violent drug organization which sold cocaine. At trial the Government presented evidence that he was one of the ringleaders and organizers. On May 12, 1997 a jury found him guilty of conspiracy to distribute cocaine, bribery of a public official, operating a continuing criminal enterprise, use of a telephone to facilitate a drug felony, and money laundering conspiracy. Gibbs was subsequently sentenced to life in prison on the conspiracy count, 15 years on the bribery count, 4 years for each of 15 telephone counts, and 20 years for both money laundering conspiracy counts. His conviction and sentences were affirmed by the Court of Appeals, see United States v. Gibbs, 190 F.3d 188 (3d Cir. 1999), and the Supreme Court thereafter denied certiorari. See Gibbs v. United States, 528 U.S. 1131, 120 S.Ct. 969, 145 L.Ed.2d 840 (January 18, 2000).*fn1


Gibb was tried before Apprendi was handed down. At the close of the evidence the court instructed the jurors that they need not decide the actual or exact amount of drugs for which he was responsible in order to find him guilty of conspiracy to distribute cocaine. In accordance with the law as it then existed, this court determined the drug quantity at the sentencing hearing and did so by a preponderance of the evidence. See United States v. Gibbs, 813 F.2d 596, 600 (3d Cir. 1987); see also United States v. Angle, 230 F.3d 113 (4th Cir. 2000); United States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000). We found that Gibbs was responsible for more than 150 kilograms of cocaine and more than 1.5 kilograms of crack cocaine. Consequently, he was sentenced under § 841(b)(1)(A)*fn4 which provides that a violation of § 841 involving 5 kilograms or more of cocaine is punishable by a term of imprisonment ranging from 10 years to life. Without a finding of a specific drug quantity, the court would have been obligated to impose Gibbs' sentence under § 841(b)(1)(C).*fn5 This subsection sets forth a maximum term of 20 years imprisonment absent death or serious bodily injury. Gibbs argues that since the finding of drug quantity at his sentencing resulted in a sentence greater than the 20 year statutory maximum, both his due process rights under the Fifth Amendment and his right to a jury trial under the Sixth Amendment were violated and his life sentence on Count I should therefore be vacated.

As a result of Apprendi it is clear that if Gibbs were being tried today the Government would be compelled to prove the drug quantity to a jury beyond a reasonable doubt in order for the court to be able to impose a sentence of imprisonment greater than the statutory maximum of 20 years set forth in § 841(b)(1)(C).*fn6 Gibbs, of course, is not being tried today. He is before this court on collateral review after his conviction and sentence were affirmed on direct appeal. It has long been recognized that the purpose of collateral review is limited. "It is not designed as a substitute for direct review." Mackey v. United States, 401 U.S. 667, 682, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). The narrowness of the habeas remedy is based on the importance of finality in our criminal justice system. As a plurality of the Supreme Court explained in Teague v. Lane, "[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect." 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). In keeping with the limited purpose of the writ of habeas corpus, the Supreme Court has established a very strict test for determining whether a recently announced change in the law is to be applied retroactively to cases on collateral review.

The test was first articulated by a plurality of the Court in Teague, but it has now been adopted by a majority of the justices. See O'Dell v. Netherland, 521 U.S. 151, 156-57, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997); Caspari v. Bohlen, 510 U.S. 383, 389-90, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). A new rule is not applicable to cases which have become final before the announcement of the new rule unless it falls within one of two exceptions:

First, a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe." Second, a new rule should be applied retroactively if it requires the observance of "those procedures that . . . are implicit in the concept of ordered liberty."

Teague, 489 U.S. at 307, 109 S.Ct. 1060 (quoting Mackey, 401 U.S. at 692-93, 91 S.Ct. 1160) (some internal quotations omitted). In subsequent cases the Court enunciated a three-step analysis under the Teague test. See O'Dell, 521 U.S. at 156, 117 S.Ct. 1969; Caspari, 510 U.S. at 390, 114 S.Ct. 948. First, the date on which the defendant's conviction became final must be ascertained. Second, the habeas court must decide whether the holding in question constitutes a new rule. Finally, if the rule is new, we must determine whether it falls "within one of the two narrow exceptions to the Teague doctrine." O'Dell, 521 U.S. at 156-57, 117 S.Ct. 1969.

Gibbs conviction became final on January 18, 2000, the day the Supreme Court denied certiorari. This was prior to the issuance of the Apprendi decision on June 26, 2000. Thus, we must decide if it announces a new rule. A rule is new if it "breaks new ground or imposes a new obligation on the States or the Federal Government," or if the result of the rule "was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301, 109 S.Ct. 1060. The holding in Apprendi was not dictated by precedent and clearly imposes a new obligation on the Government. It requires it to prove certain facts to a jury beyond a reasonable doubt when previously it needed only to prove such facts to a judge at sentencing by a preponderance of the evidence. We conclude that Apprendi announces a new rule as defined under Teague. Other courts addressing the issue are in accord. See Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000); United States v. Pittman, 120 F. Supp.2d 1263 (D.Or. 2000).

Our inquiry now turns to the question whether the new rule announced in Apprendi falls within one of the two Teague exceptions so as to be applied retroactively. The first exception relates to a situation rendering certain acts non-criminal and is not relevant here. Apprendi therefore cannot affect Gibbs' case unless its holding is a "watershed rule[] of criminal procedure" that is "implicit in the concept of ordered liberty." Teague, 489 U.S. at 311, 109 S.Ct. 1060 (internal quotations omitted). The "precise contours of this exception . . . [are] difficult to discern." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). For a rule to qualify under the second exception "the procedure at issue must implicate the fundamental fairness of the trial," and be such that without it "the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 312, 313, 109 S.Ct. 1060. However, "[a] rule that qualifies under this exception must not only improve accuracy, but also 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 quotations omitted). The Supreme Court has repeatedly pointed to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), as illustrative. There the Court held that "a defendant has the right to be represented by counsel in all criminal trials for serious offenses." Saffle, 494 U.S. at 495, 110 S.Ct. 1257.

Regardless of the difficulty of defining the boundaries of the second exception, there are not "many such components of basic due process . . . yet to emerge" that would fall within it. Teague, 489 U.S. at 313, 109 S.Ct. 1060. Supreme Court decisions since Teague have borne this out. It has yet to invoke the second exception. The Court has repeatedly held that the new rules before it do not fit within the second exception for watershed rules of criminal procedure.*fn7 For example, in O'Dell the Court declined to apply to actions already final the new rule announced in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), that "a capital defendant must be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues that he presents a future danger." O'Dell, 521 U.S. at 153, 117 S.Ct. 1969. The Court rejected the argument that the rule was "on par" with Gideon, holding that "the narrow right of rebuttal that Simmons affords to defendants in a limited class of capital cases has hardly `alter[ed] our understanding of the bedrock procedural elements essential to the fairness of a proceeding.'" Id. at 167, 114 S.Ct. 2187 (quoting Sawyer, 497 U.S. at 242, 110 S.Ct. 2822) (some internal quotations omitted). Similarly, in Sawyer the Court held that another new rule was not retroactive. There the new rule, announced in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), prohibited the imposition of a death sentence by a jury that "has been led to the false belief that the responsibility for determining the appropriateness of the defendant's capital sentence rests elsewhere." Sawyer, 497 U.S. at 233, 110 S.Ct. 2822. The Court reasoned that while the Caldwell holding did enhance the accuracy of a capital sentencing, it did not come within Teague's second exception since it was simply "added to an existing guarantee of due process protection against fundamental unfairness." Id. at 244, 110 S.Ct. 2822.

Despite the narrowness of the second Teague exception, courts, other than the Supreme Court, have found it to apply on occasion. Most notably, several circuits have retroactively applied the rule of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), which held that a jury charge that incorrectly lowered the reasonable doubt standard violated the Due Process Clause of the Fourteenth Amendment. See, e.g., Humphrey v. Cain, 138 F.3d 552, 552 (5th Cir. 1998) (en banc); Adams v. Aiken, 41 F.3d 175, 178-79 (4th Cir. 1994); Nutter v. ...

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