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.
In Apprendi, the Supreme Court overturned a sentencing scheme
that allowed a state judge to enhance a defendant's penalty
beyond the prescribed statutory maximum upon finding, by a
the evidence, that the defendant: "acted with a purpose to
intimidate an individual or group of individuals because of race,
color, gender, handicap, religion, sexual orientation or
ethnicity." 120 S.Ct. at 2351 (quoting N.J.S.A. § 2C:44-3(e)).
The Supreme Court reversed, holding 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." Id. at 2363-64. Despite the factual
distinctions between determining motivating factors and
quantities of narcotics, the Court's holding in Apprendi is
broadly worded to cover any fact, other than a prior
conviction, which increases the statutory maximum.*fn4 Id.
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
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 ...