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January 18, 2001


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


Presently before this Court is the motion of Paul S. Levan ("Petitioner" or "Levan") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2555, which was filed on April 25, 2000. For the reasons set forth below, this motion will be denied. Our review of the case leads us to consider whether the recent decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), applies on collateral attack.


On May 1, 1997, Levan was arrested by agents of the Drug Enforcement Agency ("DEA") on a charge of Conspiracy to Manufacture Methamphetamine. He was later indicted and charged with a single count pursuant to 21 U.S.C. § 846. The government contended that Levan conspired with Mr. Walter Slotcavage ("Slotcavage") to manufacture methamphetamine. Slotcavage was arrested, indicted and later pled guilty to the same charge Levan was convicted of.

Levan proceeded to trial on July 22, 1997, with Edson Bostic, Esq. representing him. United States Attorney Alan Kaiser represented the government. This trial ended in a mistrial, as the jury was unable to agree to a verdict.*fn1 The trial was rescheduled for August of 1997. Due to the unavailability of Mr. Bostic, Carlos Martir, Esq. was assigned to represent Levan. Mr. Bostic and Mr. Martir were both staff attorneys of the Federal Defender's office. Levan expressed a concern that Mr. Martir did not have adequate time to prepare the case for retrial. We held a hearing on August 11, 1997. Levan expressly decided to have Mr. Martir, rather than Mr. Bostic, or another lawyer, represent him at trial. Transcript of Hearing dated August 11, 1997. We also rescheduled the trial for September 15, 1997. Id. This trial eventually resulted in Levan's conviction. Levan, then represented by David McColgin, Esq. of the Federal Defender's Office, filed a timely appeal. The Court of Appeals affirmed the conviction and sentence on January 27, 1999.

Levan, now represented by Paul Yatron, Esq., filed the instant motion on April 25, 2000, seeking a new trial, or, in the alternative, the vacation of his sentence and a re-sentencing pursuant to applicable law. This motion was supplemented on July 28, 2000, following the Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).*fn2 On July 27, 2000, the government filed a response to the initial motion. Then, on September 11, 2000, the government filed a response to the supplement. We granted Petitioner's request for a hearing which was held on November 14, 2000. On November 21, 2000, the government submitted a letter discussing the retroactive application of Apprendi. On December 15, 2000, at this Court's request, Petitioner submitted a supplemental brief to which the government responded on January 2, 2001.

In his initial motion, Petitioner makes two arguments. First, he contends that his trial counsel was ineffective both during trial and at sentencing. Second, he contends that the government failed to turn over Brady material which prejudiced him. Levan, through counsel, then filed supplementary materials arguing that Apprendi applied here and that he was denied due process and trial by jury because the Court and not the jury determined the quantity of drugs involved.


A. Apprendi applies to Drug Quantity Determinations*fn3

Under the narcotics laws in effect at the time of Levan's trial, he faced a maximum sentence of twenty years for conspiring to manufacture any amount of methamphetamine. 21 U.S.C. § 841(b)(1)(C). The maximum sentence increased to forty years if a finding was made that the offense involved 100 grams or more of a mixture or substance containing methamphetamine. 21 U.S.C. § 841(b)(1)(B). At sentencing, this Court found that Levan's offense involved over 3,600 grams of methamphetamine. Consequently, we sentenced him under 21 U.S.C. § 841(b)(1)(B) to 293 months. Levan, relying on Apprendi, argues that his Constitutional rights were violated, since the finding of the drug quantity by the Court resulted in a sentence greater than the 240 months statutory maximum for an unspecified amount of methamphetamine. Pet. Supp. Motion (7/28/00) at ¶¶ 5-7; Pet. Supp. Br. (12/15/00) at 9-12.

The Third Circuit has yet to declare that Apprendi applies to drug quantity cases generally, or to the specific determination of the amount of methamphetamine. However, in United States v. Mack, 229 F.3d 226 (3d Cir. 2000), Chief Judge Becker discussed, in dicta, a Ninth Circuit case applying Apprendi to drug quantity determinations. Id. at 241 n. 6 (Becker, J. concurring) (discussing United States v. Nordby, 225 F.3d 1053, 1056 (9th Cir. 2000)). Nordby held that the amount of drugs for which a defendant is sentenced under 21 U.S.C. § 841(b)(1) is a fact that: "increases the prescribed statutory maximum penalty to which a criminal defendant is exposed." 225 F.3d at 1056. In Nordby, the defendant was convicted of manufacturing marijuana and possession of marijuana with an intent to distribute it under § 841(a). Id. The district court instructed the jury that the government was not required to prove the amount or quantity of marijuana manufactured as long as the government proved beyond a reasonable doubt that the defendant manufactured a measurable or detectable amount of marijuana. Id. The defendant was convicted by the jury and sentenced to life imprisonment by the court. Id. The Ninth Circuit held that the defendant's sentence could only be based on facts found by the jury. Id. Since the jury did not make a quantity finding, the defendant's life sentence exceeded the prescribed statutory maximum. Id. See also United States v. Doggett, 230 F.3d 160 (5th Cir. 2000) (applying Apprendi to drug quantity challenge on direct appeal); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000); United States v. Gibbs, 125 F. Supp.2d 700 (E.D.Pa. 2000).

While Apprendi applies to any factual determination used to justify the application of a higher statutory maximum penalty, it does not apply to a district court's determination of sentencing guideline issues or factual determinations made under the guidelines that increase a sentence within the applicable statutory maximum. In Doggett, the Fifth Circuit explained that drug quantity for any sentence beyond a statutory maximum penalty was an element of the offense which must be established beyond a reasonable doubt while the drug quantity determination for all other purposes remained an issue for the sentencing court under the preponderance of the evidence standard. 230 F.3d at 163-164. Accord United States v. Angle, 230 F.3d 113 (4th Cir. 2000); Hernandez v. United States, 226 F.3d 839, 841 (7th Cir. 2000); Aguayo-Delgado, 220 F.3d at 933. The Court in Doggett based its conclusion, in part, upon a determination that Apprendi did nothing to overrule the Court's prior holding in Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998), that the sentencing judge properly determines drug quantity and relevant conduct when imposing a sentence within the relevant range. 230 F.3d at 166.

B. Apprendi Should Not Apply to Cases on Collateral Review

Collateral challenges are not reviewed as favorably as direct appeals. See United States v. Frady, 456 U.S. 152, 164-165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). An error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. Id. In addition to this less favorable review standard, petitioners seeking relief under 28 U.S.C. § 2255 do not always receive the benefit of new rules decided after their convictions become final. Out of respect for the doctrine of finality, new procedural rules are generally not applied retroactively. Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This Circuit adheres to the approach set forth in Teague to evaluate when to apply a new rule to a habeas petition. West v. Vaughn, 204 F.3d 53, 61 (3d Cir. 2000).

The Third Circuit has not yet decided the issue of whether Apprendi may be applied retroactively to habeas corpus petitions. Several other Circuits have held that Apprendi may not be applied retroactively to successive habeas corpus petitions because the Supreme Court has not specifically declared that the decision to be retroactive. Hernandez, 226 F.3d at 840; Talbott v. Indiana, 226 F.3d 866, 868-70 (7th Cir. 2000); Rodgers v. United States, 229 F.3d 704, 706 (8th Cir. 2000) (per curiam); In Re Joshua, 224 F.3d 1281, 1282 (11th Cir. 2000); Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000). These courts have reasoned that the language of the successive petition provision of the AEDPA, 28 U.S.C. § 2255, mandates that the Supreme Court actually hold a new rule retroactive before it can be applied retroactively by lower courts. See id.

The parties have not cited, nor have we found, any authority extending the holdings of these decisions to initial habeas corpus petitions. However, at least one circuit has refused to apply Apprendi to an initial habeas corpus petition. Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000). In Jones, the Court applied the Teague test to an initial 28 U.S.C. § 2254 petition and concluded that the new rules announced in Apprendi did not satisfy the requirements for retroactivity.*fn6 Id. at 1237-1238. Several district courts have also determined that Apprendi does not apply to initial habeas corpus petitions. Gibbs, 125 F. Supp.2d at 702-03; United States v. Pittman, 120 F. Supp.2d 1263 (D.Or. 2000) (refusing to apply Apprendi to a case in which a prisoner attacked a sentence based on the fact that the judge determined the weight of the drugs by a preponderance of the evidence); United States v. Johnson, 126 F. Supp.2d 1222, 1225 (D.Neb. 2000); Ware v. United States, 124 F. Supp.2d 590, 593 (M.D.Tenn. 2000); United States v. Brown, No. 3:97-CV-913-P, 2000 WL 1880280, *1 (N.D.Tex. Dec.28, 2000) (denying leave to amend a § 2555 motion because Apprendi claim was not cognizable on collateral review); West v. United States, 123 F. Supp.2d 845 (D.Md. 2000).*fn7 See also United States v. Joseph, No.Crim. A. 96-275, 2000 WL 1789989, *2 (E.D.La. Dec.5, 2000) (refusing to apply Apprendi retroactively but noting that the sentence was not above the statutory maximum); Klein v. United States, 125 F. Supp.2d 460, 466 (D.Wyo. 2000) (same).

We cannot rely on the Supreme Court's failure to call for retroactive application of Apprendi as a basis for refusing to apply the rule here. See West, 204 F.3d at 61. Under the Third Circuit's approach: "federal courts may retroactively apply new rules of law on habeas petitions if the rules are watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, that alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Id. at 59-60 (internal quotations and citations omitted). This test is identical to that set forth in Teague. See 489 U.S. at 303, 109 S.Ct. 1060. It consists of a three-stage inquiry. Id. The first question is whether the conviction became final before the new decision. Id. It is undisputed that Mr. Levan's conviction became final in 1999, well before Apprendi was decided.

The second inquiry is whether the decision adopts a new rule of criminal procedure. Apprendi constitutes a procedural rule because it dictates what fact-finding procedure must be employed to ensure a fair trial. Teague, 489 U.S. at 312, 109 S.Ct. 1060; Apprendi, 120 S.Ct. at 2354 ("the substantive basis for New Jersey's enhancement is . . . not at issue; the adequacy of New Jersey's procedure is").*fn8 Apprendi also announces a new rule. A new rule is one that is not dictated by precedent existing at the time the defendant's conviction became final. Teague, 489 U.S. at 301, 109 S.Ct. 1060. No prior precedent dictated that any factor that increased the maximum punishment for an offense must be charged in the indictment and found by the jury beyond a reasonable doubt. United States v. Gibbs, 190 F.3d 188 (3d Cir. 1999). Prior to Apprendi, every Circuit Court in the country considered drug quantity penalties under § 841(b) to be sentencing factors for a judge to determine based upon a preponderance standard of proof. See, e.g., id.; United States v. Lindia, 82 F.3d 1154, 1160-1161 (1st Cir. 1996); United States v. Deisch, 20 F.3d 139, 146 (5th Cir. 1994). 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); Bilzerian v. United States, 127 F.3d 237, 240 (2nd Cir. 1997). Thus, we conclude that Apprendi satisfies the Teague test for evaluating whether a case announces a new rule of criminal procedure. See Jones, 231 F.3d at 1236 ("Apprendi certainly established a new rule"); United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000) (explaining why Apprendi constitutes a "new" rule); Pittman, 120 F. Supp.2d at 1269; Gibbs, 125 F. Supp.2d 700; Ware, 124 F. Supp.2d at 594.

While the "precise contours" of the second Teague exception are "difficult to discern," the Supreme Court has limited the class of new rules to those which constitute: "watershed rules of criminal procedure implicating fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). A rule that qualifies under this exception must: "not only improve accuracy but also alter our understanding of the bedrock ...

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