109 S.Ct. 1060. New rules are applied retroactively only in two
limited instances. The first exception covers situations where
the new rule places "certain kinds of primary, private individual
conduct beyond the power of the criminal law." Teague, 489 U.S.
at 311, 109 S.Ct. 1060. Petitioner concedes that this exception
does not apply here. Pet. Supp. Br. at 9. The second exception to
the non-retroactivity rule applies when the rule implicates
fundamental fairness in a way that seriously affects the
likelihood of an accurate conviction. Id. at 312-313, 109 S.Ct.
1060. For the reasons set forth below, we find that Apprendi
does not fit this exception either.
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 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
In Teague, Justice O'Connor stated that it is unlikely that
there could be many such rules. 489 U.S. at 313, 109 S.Ct. 1060.
In United States v. Mandanici, 205 F.3d 519 (2nd Cir. 2000),
the Second Circuit noted that the Supreme Court has repeatedly,
"underscored the narrowness of the second Teague exception."
Id. at 528. The Second Circuit examined eleven new rules
announced by the Supreme Court and analyzed under the Teague
framework and noted that in all eleven cases, the Court held that
the rule at issue should not be applied retroactively. Id. at
529. New rules held not to constitute watershed developments
include: a defendant's right not to have a jury consider certain
invalid aggravating circumstances, Lambrix v. Singletary,
520 U.S. 518, 539-540, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997), a
defendant's right to inform a sentencing jury that he is
ineligible for parole under certain circumstances, O'Dell v.
Netherland, 521 U.S. 151, 167, 117 S.Ct. 1969, 138 L.Ed.2d 351
(1997), and the failure to instruct a jury that it could not
convict a defendant if it found a mitigating mental state.
Gilmore v. Taylor, 508 U.S. 333, 345-46, 113 S.Ct. 2112, 124
L.Ed.2d 306 (1993). Several courts have also refused to
retroactively apply United States v. Gaudin, 515 U.S. 506, 115
S.Ct. 2310, 132 L.Ed.2d 444 (1995), which held that in a
prosecution for false statements under federal law, the jury and
not the court, must decide materiality. See, e.g., Bilzerian,
127 F.3d at 241; United States v. Shunk, 113 F.3d 31, 36 (5th
Cir. 1997); United States v. Swindall, 107 F.3d 831, 836 (11th
The Supreme Court has emphasized that: "the choice between
retroactivity and non-retroactivity in no way turns on the value
of the constitutional guarantee involved." Johnson v. New
Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
While, the right to a jury determination of guilt beyond a
reasonable doubt is an important constitutional protection, the
importance of this new safeguard must be evaluated against a
backdrop of the
protections which the defendant did in fact receive. Solem v.
Stumes, 465 U.S. 638, 644, 104 S.Ct. 1338, 79 L.Ed.2d 579
(1984). The Supreme Court has repeatedly declined to apply new
constitutional standards retroactively to prior cases if the
defendants in those cases had the benefit of preexisting, albeit
less specific or less stringent, standards protecting the same
interests. See, e.g., id. A rule which fits the second Teague
exception must be aimed at correcting a structural error so
severe that the integrity of the guilty verdict is questioned.
West, 204 F.3d at 61; Gibbs, 125 F. Supp.2d 700.
We find that the two new rules announced in Apprendi that:
(1) a jury, rather than a judge must determine facts supporting a
statutory sentencing enhancement, and (2) that this determination
must be made beyond a reasonable doubt — are not the type of
watershed rules implicating fundamental fairness that necessitate
retroactive application on collateral review.*fn10 Shifting an
element of the offense from jury to judge and utilizing a
preponderance rather than a beyond a reasonable doubt standard
does not implicate fundamental fairness or relate to the accuracy
of the conviction or sentence. See Jones, 231 F.3d at
1237-1238; Pittman, 120 F. Supp.2d at 1269. See also
Bilzerian, 127 F.3d at 240.*fn11 The fact that the application
of a different standard of review might lead to different results
is insufficient. Mackey v. United States, 401 U.S. 667, 672, 91
S.Ct. 1160, 28 L.Ed.2d 404 (1971). In Mackey, the Supreme Court
expressly rejected a claim that the mere probability that a
different result would be reached by application of a new rule
was sufficient to trigger retroactive application. 401 U.S. at
672, 91 S.Ct. 1160. The Apprendi rule is neither implicit in
the concept of ordered liberty nor an absolute prerequisite to a
fair trial. See Jones, 231 F.3d at 1238.
Although not controlling, we also note that courts which have
considered the application of Apprendi on direct review have
applied harmless error analysis. See, e.g., United States v.
Garcia-Guizar, 234 F.3d 483, 488 (9th Cir. 2000) ("Apprendi
error was harmless beyond a reasonable doubt"); United States v.
Sheppard, 219 F.3d 766, 768-69 (8th Cir. 2000); United States
v. Nance, 236 F.3d 820, 824-25 (7th Cir. 2000); United States
v. Page, 232 F.3d 536 (6th Cir. 2000); United States v. Nealy,
232 F.3d 825 (11th Cir. 2000). The standard for invoking
structural error on direct review is similar to the Teague
test; that is the error must implicate the fundamental fairness
and accuracy of a criminal proceeding. See Sullivan v.
Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182
(1993). Thus, the reasoning of these courts supports our decision
not to retroactively apply Apprendi. See Pittman, 120 F. Supp.2d
at 1270, Gibbs, 125 F. Supp.2d at 705.
The evidence which dictated this Court's drug quantity
determination was presented without dispute to the jury at trial.
There is no reason to believe that the jury would have found a
different quantity than we did, much less a quantity beneath the
100 gram threshold.*fn12 The lack of a jury
finding as to the single element of drug quantity and the lack of
such a finding made beyond a reasonable doubt does not call into
question the validity of the verdict. See Gibbs, 125 F. Supp.2d
at 705-06, relying on Neder v. United States, 527 U.S. 1, 119
S.Ct. 1827, 144 L.Ed.2d 35 (1999). In Neder, the judge, rather
than the jury made a finding that the evidence established
materiality. 527 U.S. at 9, 119 S.Ct. 1827. The Supreme Court
acknowledged that the jury had not rendered a complete verdict
because it did not make a finding of materiality. 527 U.S. at 11,
119 S.Ct. 1827. Nonetheless, the Court applied harmless error
analysis because the mistake "did not vitiate all of the jury's
findings." Id. Neder is instructive here because in the instant
case a fact issue due to be resolved by the jury using a
reasonable doubt standard instead went to the judge who used a
less exacting standard. Since this error is limited to a single
element, we have a basis on which to imagine what a fully
instructed jury would have done. See Neder, 527 U.S. at 16, 119
S.Ct. 1827; United States v. Swatzie, 228 F.3d 1278, 1283 (11th
The evidence presented against Levan was significant and there
is simply no basis for concluding that the "likelihood of an
accurate conviction" will be "seriously diminished" by not
applying Apprendi retroactively. See Gibbs, 125 F. Supp.2d at
705, quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060.
Accordingly, we will not overturn Levan's sentence for conspiracy
to distribute methamphetamine.
C. Ineffective Assistance of Counsel
To obtain relief for ineffective assistance of counsel,
Petitioner must show that: (1) his counsel's conduct was
deficient and "fell outside the wide range of professionally
competent assistance," and (2) that he was prejudiced as a result
of that deficient conduct. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States
v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993).*fn13 Under
Strickland, the proper measure for evaluating counsel's
performance is: "reasonableness under prevailing norms." Id. at
688, 104 S.Ct. 2052. Petitioner must overcome the presumption
that his lawyer's actions constituted sound trial strategy. Id.
at 689-690, 104 S.Ct. 2052. Ineffective counsel claims also need
to satisfy a "but for" test. Under this test, there must be a
reasonable probability that "but for" counsel's unprofessional
errors, the result of the proceeding would have been different.
Id. at 695, 104 S.Ct. 2052; Frey v. Fulcomer, 974 F.2d 348,
358 (3d Cir. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368,
122 L.Ed.2d 746 (1993).
1. Alleged Failures to Identify or Call Certain Potential
Levan claims that his counsel was ineffective because he failed
to interview and call certain potential witnesses. Pet. Br. at 5;
Pet. Supp. Br. at 2-4. Mr. Martir did not interview three
witnesses who testified on Petitioner's behalf at the first
trial: Leininger, Ditzler and Ruffner. Id. Two of these
witnesses, Leininger and Ditzler, did not testify at the retrial.
Id. Levan concedes that Mr. Martir was aware of the substance
of the testimony given by these witnesses. Id. However, he
contends that the failure to interview these witnesses personally
amounted to ineffective assistance. Id. Levan also contends
that his counsel never interviewed the following