Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2003

USA v. Swinton
Precedential or Non-Precedential: Precedential

Docket No. 01-1004




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                          PRECEDENTIAL

                                   Filed June 23, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 01-1004


           UNITED STATES OF AMERICA
                         v.
                 ANDRE SWINTON,
                             Appellant

   On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
               (D.C. No. 94-cr-00008-1)
        District Judge: Hon. Harvey Bartle, III

      Submitted Under Third Circuit LAR 34.1(a)
                 December 19, 2002
Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

                (Filed June 23, 2003)

                   David Rudovsky
                   Kairys, Rudovsky, Epstein &
                    Messing
                   Philadelphia, PA 19l07
                     Attorney for Appellant
                             2


                      Patrick L. Meehan
                       United States Attorney
                      Laurie Magid
                       Deputy United States Attorney
                       for Policy and Appeals
                      Craig Margolis
                       Assistant United States Attorney
                      Robert A. Zauzmer
                       Assistant United States Attorney
                       Senior Appellate Counsel
                      Robert K. Reed
                      Office of United States Attorney
                      Philadelphia, PA 19l06
                        Attorneys for Appellee


                OPINION OF THE COURT

SLOVITER, Circuit Judge.
  The issue presented in this appeal is whether the rule of
law announced by the Supreme Court in Apprendi v. New
Jersey, 

(2000), applies retroactively to cases
on collateral review. The courts of appeals that have
considered the issue have uniformly held that Apprendi
does not apply retroactively to cases on collateral review.
We also so hold. See also United States v. Jenkins, No. 01-
1722 (3d Cir. June 18, 2003).

                             I.

                      BACKGROUND
   Appellant Andre Swinton was charged with various drug
offenses in a six-count superseding indictment returned in
1994. He was found guilty after a jury trial of one count of
conspiracy to distribute more than fifty grams of cocaine
base (crack), in violation of 21 U.S.C. § 846 (Count One),
one count of distribution of more than fifty grams of
cocaine base (crack) within 1,000 feet of a school, in
violation of 21 U.S.C. § 860 (Count Three), two counts of
                               3


distribution of more than fifty grams of cocaine base
(crack), in violation of 21 U.S.C. § 841(a)(1) (Counts Four
and Five), and retaliation against a witness/informant in
violation of 18 U.S.C. § 1513 (Count Six).
  The District Court sentenced Swinton to 324 months
incarceration on Counts One, Three, Four, and Five, and
120 months incarceration on Count Six, all terms to run
concurrently, followed by ten years of supervised release. It
also imposed a $5,000 fine and a $250 special assessment.
On appeal, this court affirmed the judgment and sentence.
United States v. Swinton, 

(3d Cir. 1998)
(unpublished table decision). The United States Supreme
Court denied Swinton’s petition for a writ of certiorari on
October 5, 1998. Swinton v. United States, 

(1998).
   On August 12, 1999, within a year of the final judgment
in his case, Swinton filed a pro se motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255,
raising various ineffective assistance of counsel claims.
However, because Swinton did not properly complete the
requisite forms for filing a § 2255 motion, the District Court
ordered him to do so within thirty days. Swinton did file the
necessary forms on October 8, 1999, but once again he
failed to follow the requisite procedure. Instead of listing his
grounds for relief on the § 2255 motion form as required by
the local rules, Swinton referred the court to an attached
memorandum. The District Court dismissed the motion
without prejudice. On November 29, 1999, only slightly
more than two weeks after the District Court’s dismissal,
Swinton filed another § 2255 motion setting forth his
ineffective assistance of counsel claims on the motion form
and, on August 2, 2000, the District Court ordered the
Government to file a response.
   On September 8, 2000, before the Government filed its
response, Swinton filed a document titled “Supplement to
Petitioner’s Motion to Vacate, Set Aside or Correct Sentence
Pursuant to 28 U.S.C. § 2255” (the “Supplemental Motion”)
in which he moved the District Court to allow him to
incorporate an additional issue into his § 2255 motion.
Swinton claimed that his rights to due process and a jury
trial were violated because the jury was instructed that the
                             4


Government need not prove the quantity and identity of the
drugs involved in his case. Although not mentioned in his
filing, this claim was based on the Supreme Court’s
decision in Apprendi v. New Jersey, 

(2000),
decided June 26, 2000, less than three months earlier. In
Apprendi, the Court held that “[o]ther than the fact of a
prior conviction, 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.” 

  The Government filed a response to the § 2255 motion,
contending that there was no merit to Swinton’s ineffective
assistance of counsel claims. The Government further
argued that the Supplemental Motion should be denied
because Apprendi has not been made retroactive to cases
on collateral review, and accordingly the Supplemental
Motion was time-barred under the statute of limitations
provision of § 2255. Also, it argued that even if Apprendi
were applicable, Swinton’s claim would fail because the
District Court did not commit plain error in sentencing
Swinton based on a drug quantity that was supported by
credible and undisputed evidence.
   The District Court held that the November 29, 1999
§ 2255 motion was untimely because Swinton filed it more
than one year after his judgment of conviction became final.
In the alternative, it ruled that Swinton’s ineffective
assistance of counsel claims lacked merit. The District
Court also ruled that Swinton’s Supplemental Motion
raising his Apprendi claim is a second or successive § 2255
motion that requires authorization from this court before it
can be filed in the District Court. It denied the
Supplemental Motion without prejudice and with leave to
file the necessary motion in this court. Swinton filed a
timely notice of appeal and a request for a certificate of
appealability with this court.
   We granted a certificate of appealability limited to the
following issues:
    (1)   [W]hether the language “made retroactively
          applicable to cases on collateral review” in the
          statute of limitations set forth in 28 U.S.C.
                                    5


              § 2255(3) is distinguishable from the language
              “made retroactive to cases on collateral review by
              the Supreme Court” in the requirement for
              authorization to file a second or successive Section
              2255 motion, as that language was discussed in
              Tyler v. Cain, 

(2001) and In re:
              Turner, 

, 227-28 (3d Cir. 2001).
       (2)    If the language is distinguishable, is the Supreme
              Court’s opinion in Apprendi v. New Jersey, 

(2000), retroactively applicable on
              collateral review, and does it make Swinton’s
              Supplemental Section 2255 motion timely under
              § 2255(3).
The court appointed counsel to represent Swinton.1

                                    II.

             JURISDICTION AND STANDARD OF REVIEW
   The District Court had jurisdiction pursuant to 28 U.S.C.
§ 2255. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 28 U.S.C. § 2253(a). We review issues of statutory
interpretation de novo. Kapral v. United States, 

, 567 (3d Cir. 1999).

                                   III.

                             DISCUSSION
  A.     Statute of Limitations Under 28 U.S.C. § 2255
   Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a one-year period of limitation applies to
a motion to vacate a sentence filed under § 2255. Paragraph
6 of § 2255 provides that the limitation period shall run
from the latest of:

1. Although the parties address in their briefs the issue of whether the
Supplemental Motion is second or successive, we did not grant a
certificate of appealability on this issue and thus we will not address it.
                              6


    (1)   the date on which the judgment of conviction
          becomes final;
    (2)   the date on which the impediment to making a
          motion created by governmental action in violation
          of the Constitution or laws of the United States is
          removed, if the movant was prevented from
          making a motion by such governmental action;
    (3)   the date on which the right asserted was initially
          recognized by the Supreme Court, if that right has
          been newly recognized by the Supreme Court and
          made retroactively applicable to cases on collateral
          review; or
    (4)   the date on which the facts supporting the claim
          or claims presented could have been discovered
          through the exercise of due diligence.
28 U.S.C. § 2255 (emphasis added).
   Swinton filed his Supplemental Motion more than one
year after his judgment of conviction became final.
However, because he claims a violation of Apprendi,
Swinton argues that the Supplemental Motion was timely
under subparagraph (3) above because he filed it within a
year after Apprendi was decided. Swinton can take
advantage of that provision only if Apprendi creates a “right
[that] has been [1] newly recognized by the Supreme Court
and [2] made retroactively applicable to cases on collateral
review.” 

defendant, who pled guilty to various state
firearm offenses, was sentenced to an enhanced sentence
under the New Jersey hate crime law. That statute provides
for an extended term of imprisonment if the trial judge
finds by a preponderance of 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. In the state courts
and then in the Supreme Court of the United States,
Apprendi challenged the constitutionality of the statute,
arguing that “the Due Process Clause of the United States
Constitution requires that the finding of bias upon which
his hate crime sentence was based must be proved to a jury
                              7


beyond a reasonable doubt.” 

.
The Supreme Court agreed and held that “[o]ther than the
fact of a prior conviction, 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.” 

   The decision in Apprendi impacts both the statutory
provision in paragraph 6 of 28 U.S.C. § 2255, which
requires tolling the statute of limitations for certain claims
of new rights recognized by the Supreme Court, and
paragraph 8 of § 2255, which requires that second or
successive claims must be certified by the court of appeals
before they can be filed in the district courts. There are
several requirements under each of those provisions and
the language is somewhat different. Under paragraph 6 the
right at issue must have been “newly recognized by the
Supreme Court” whereas paragraph 8 refers to “a new rule
of constitutional law.” 28 U.S.C. § 2255.
   The parties do not dispute that Apprendi establishes a
constitutional right under the applicable language of both
provisions. In Ashley v. United States, 

, 672
(7th Cir. 2001), where the court construed paragraph 6, the
same issue before us, i.e. when the statute of limitations
begins to run on newly recognized rights, the court stated,
“[n]o one could doubt that Apprendi ‘newly’ or ‘initially’
recognizes a constitutional right. Apprendi caused this
court to overrule numerous cases, a sign that something
novel occurred.” In In re Turner, 

, 227-28 (3d
Cir. 2001), this court considered the related issue under
paragraph 8 of section 2255 and concluded that Apprendi
establishes a “new rule of constitutional law” for purposes
of filing a second or successive habeas application
pursuant to 28 U.S.C. §§ 2255 and 2244.
   Having concluded that Apprendi recognized a new rule of
constitutional law, we reach the issue of the retroactive
application of Apprendi and must first decide whether that
is an issue reserved to the Supreme Court or whether the
lower federal courts also have authority to determine
whether Apprendi can be applied retroactively to cases on
collateral review. In Turner, where, as noted above, the
issue arose in the context of a second or successive motion,
                              8


we denied the petitioner authorization to file a second
§ 2255 motion because the Supreme Court had not made
Apprendi retroactive to cases on collateral review. 

The language of paragraph 8 is explicit as it refers to
“a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, . . .” 28 U.S.C.
§ 2255 ¶ 8 (emphasis added). By the time of the Turner
opinion, the Supreme Court had already decided in Tyler v.
Cain, 

, 663 (2001), that it is the only court
that can make a new rule retroactive for purposes of filing
a second or successive habeas corpus application. In Tyler,
the Court was construing § 2244(b)(2)(A), which applies to
state prisoners, and which contains the same language as
in § 2255, which applies to federal prisoners. Our decision
in Turner followed as a matter of course.
  Tyler is not dispositive of the issue before us because of
the difference in the language between paragraph 6 and
paragraph 8. Paragraph 6 merely states that the limitation
period shall run from “the date on which the right asserted
was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review [.]” 28
U.S.C. § 2255. Significantly, paragraph 6 does not include
the phrase “by the Supreme Court” when referring to the
retroactivity decision.
  It was this difference in statutory language that led the
Court of Appeals for the Seventh Circuit to hold that courts
of appeals and district courts may determine whether a
novel decision of the Supreme Court applies retroactively,
and thus whether a collateral attack is timely under § 2255.

. The reasoning of the Ashley
court is persuasive and, because we cannot improve it, we
adopt it:
    An initial petition may be filed within a year of a
    decision that is “made retroactively applicable to cases
    on collateral review[.]” A second petition, by contrast,
    depends on “a new rule of constitutional law, made
    retroactive to cases on collateral review by the Supreme
    Court” (emphasis added). Both statutes make it clear
    that only the Supreme Court may issue the new
    decision. But who decides whether that new decision
                               9


    applies retroactively? The first formulation (“made
    retroactive”) leaves that question open. The second
    formulation (“made retroactive . . . by the Supreme
    Court”) answers it. To treat the first formulation as
    identical to the second is not faithful to the difference
    in language. By omitting the restriction contained in
    ¶ 8(2), ¶ 6(3) implies that courts of appeals and district
    courts may “make” the retroactivity decision. Tyler
    concludes that the word “made” in ¶ 8(2) means “held.”
    ___ U.S. at ___, 121 S.Ct. at 2483. District and
    appellate courts, no less than the Supreme Court, may
    issue opinions “holding” that a decision applies
    retroactively to cases on collateral review. The
    jurisdictional (and precedential) scope of that holding
    differs, but it is a holding nonetheless.

   The court set forth three reasons justifying the difference
between the statute of limitations and the second or
successive provisions. First, permitting a district or
appellate court to make the retroactivity decision for an
initial petition may be essential to put the question before
the Supreme Court for final resolution. 

“[h]ow
else would a retroactivity question get before the Supreme
Court so that it could make the decision that would in turn
authorize second or successive petitions?” 

court of appeals only has thirty days to decide whether a
second or successive petition may be filed. 

no such time limit applies to an initial petition for collateral
review and courts have time to conduct a retroactivity
analysis. 

conditions for filing successive
petitions are substantively and procedurally more
restrictive because the prisoner has already had one
opportunity to raise his collateral claims. 

United States v. Lopez, 

(5th
Cir.), cert. denied, 

(2001), the court of appeals
was required to decide whether it could make the
retroactivity determination of Richardson v. United States,

(1999), the Supreme Court’s decision holding
a jury must be instructed to reach a unanimous verdict on
each of the specific violations that comprise the “continuing
series of violations” charged as a continuing criminal
                             10


enterprise. Using reasoning similar to that in Ashley, the
court, noting the omission of the words “by the Supreme
Court” in paragraph 6 of § 2255, the statute of limitations
provision, held that Ҥ 2255(3) does not require that the
retroactivity determination must be made by the Supreme
Court itself.” 

; see also Garcia v.
United States, 

, 1212-13 (11th Cir.)
(assuming that the Supreme Court need not make the
retroactivity determination required in the statute of
limitations provision and recognizing cases holding same),
cert. denied, 

(2002).
   The Supreme Court also has stated that “ ‘[w]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’ ” Duncan
v. Walker, 

, 173 (2001) (citations omitted). In
Duncan, the Supreme Court considered whether a federal
habeas corpus petition is an “application for State post
conviction or other collateral review” for purposes of tolling
the statute of limitations under 28 U.S.C. § 2244(d)(2). 

In construing the statutory language and
concluding that Congress did not intend federal petitions to
toll the limitation period, the Court explained that Congress
used both the words “State” and “Federal” to denote state
and federal proceedings in other portions of the statute. 

The same principle applies here.
  We conclude — and the parties agree — that the statute
of limitations provision of § 2255 allows district courts and
courts of appeals to make retroactivity decisions. We turn
now to whether Apprendi applies retroactively to cases on
collateral review.
  B.   Apprendi Retroactivity Analysis
  When analyzing the retroactivity of a new rule of law, we
must decide whether the rule is substantive or procedural
in nature because “ ‘the Supreme Court has created
separate retroactivity standards for new rules of criminal
procedure and new decisions of substantive criminal law.’ ”

(quoting United States v. Woods,

, 676 (3d Cir. 1993)). “Under the substantive
                             11


retroactivity standard, the appropriate inquiry is whether
the claimed legal error was a ‘fundamental defect which
inherently results in a complete miscarriage of justice,’ and
whether ‘it presents exceptional circumstances where the
need for the remedy afforded’ by collateral relief is
apparent.’ ” 

(citations omitted).
   In Teague v. Lane, 

(1989), the Supreme
Court set forth the general principles regarding retroactivity
for new rules of criminal procedure. It explained that
because of the interest in finality of judgments in the
criminal justice system, a new rule of criminal procedure
does not apply retroactively to cases that have become final
before the new rule is announced. 

There are
two narrow exceptions. A new rule of criminal procedure
will apply retroactively if it (1) places certain kinds of
primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe; or (2) requires
the observance of those procedures that are implicit in the
concept of ordered liberty. 

Teague’s second
exception is reserved for watershed rules of criminal
procedure that not only improve the accuracy of trial, but
also “ ‘alter our understanding of the bedrock procedural
elements’ ” essential to the fairness of a proceeding. Sawyer
v. Smith, 

, 242 (1990) (citations omitted).
   Swinton, seeking the retroactive application of Apprendi,
argues that Apprendi announced a rule of substantive
criminal law and that Teague is inapplicable. He contends
that Apprendi redefines when a particular fact is deemed to
be an element of an offense and argues that the fact that
Apprendi has the procedural consequence of proof to a jury
beyond a reasonable doubt does not render it a rule of
procedure. Swinton states, “it is illogical to say that this
procedural implication is Apprendi’s ‘new rule,’ because it
has always been the case that a defendant is entitled to ‘a
jury determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable
doubt.’ ” Appellant’s Br. at 22-23. The Government, on the
other hand, argues that Apprendi is a new rule of criminal
procedure that does not apply retroactively under Teague.
It states that Apprendi did not address the substance of a
statute but “merely established the necessary procedures
                             12


for establishing those facts” which increase the penalty for
a crime. Appellee’s Br. at 38.
  The courts of appeals that have considered this issue
have held that Apprendi establishes a procedural rule. In
United States v. Brown, 

, 310 (5th Cir. 2002),
cert. denied, 

(U.S. Apr. 28, 2003), for
example, the court held that the principles articulated in
Teague were applicable to Apprendi claims asserted on
collateral review and that Apprendi does not apply
retroactively to initial motions under § 2255. In so holding,
the court rejected the petitioner’s argument that the rule
announced in Apprendi is substantive, rather than
procedural. 

It relied on the Supreme Court’s
own description in Apprendi of the issue before it as
procedural, where the Court stated that “ ‘[t]he substantive
basis for New Jersey’s [sentencing] enhancement is thus
not at issue; the adequacy of New Jersey’s procedure is.’ ”

(quoting 

). The Brown
court also noted that in Apprendi the Court stated that
having the jury decide the elements of an offense under a
reasonable doubt standard “ ‘has a vital role in our criminal
procedure for cogent reasons.’ ” 

530
U.S. at 484). The court in Brown further explained that
Apprendi focused on the right to have a jury decide whether
the sentence should be enhanced, not whether the
enhancement was essential to a conviction. 

words, Apprendi did not change what the government must
prove, it only changed the requirement that it must be the
jury, rather than the judge, who decided the question of
drug quantity. 

  Similarly, in Curtis v. United States, 

(7th
Cir.), cert. denied, 

(2002), the court stated,
    Yet Apprendi is about nothing but procedure — who
    decides a given question (judge versus jury) and under
    what standard (preponderance versus reasonable
    doubt). Apprendi does not alter which facts have what
    legal significance, let alone suggest that conspiring to
    distribute marijuana is no longer a federal crime
    unless the jury finds that some particular quantity has
    been sold.
                            13


    . . .
    Because Apprendi is concerned with the identity of the
    decision-maker, and the quantum of evidence required
    for a sentence, rather than with what primary conduct
    is unlawful, it identifies a new rule of criminal
    procedure that falls within the set of legal changes to
    which the Teague standard 

; see also McCoy v. United States, 

, 1257 n.16 (11th Cir. 2001) (“The application of
Apprendi merely changes the method or procedure for
determining drug quantity and [McCoy’s] sentence; it does
not make McCoy’s conduct not criminal[.]”), cert. denied,

(2002); United States v. Sanders, 

, 147 (4th Cir.) (“Apprendi constitutes a procedural rule
because it dictates what fact-finding procedure must be
employed to ensure a fair trial.”), cert. denied, 

(2001).
  We agree with our sister circuits that Apprendi
announced a new rule of criminal procedure, as has the
panel in Jenkins, No. 01-1722 (3d Cir. June 18, 2003), an
opinion filed last week. Thus, we must apply a Teague
analysis    to   determine     whether Apprendi   applies
retroactively on collateral review.
   As stated above, Teague enunciated the principle that
“[u]nless they fall within an exception to the general rule,
new constitutional rules of criminal procedure will not be
applicable to those cases which have become final before
the new rules are 

. The
Supreme Court explained that “a case announces a new
rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government.” 

It stated, “a case announces a new rule if the result
was not dictated by precedent existing at the time the
defendant’s conviction became final.” 

opinion in Caspari v. Bohlen, 

, 390
(1994), the Supreme Court set forth the steps a federal
court should take when faced with a habeas petition
seeking relief based on a rule announced after the
defendant’s conviction became final. The court must survey
“ ‘the legal landscape’ ” as it existed on the date the
                             14


defendant’s conviction became final and then determine if
a “ ‘court considering [the defendant’s] claim at the time his
conviction became final would have felt compelled by
existing precedent to conclude that the rule [he] seeks was
required by the Constitution.’ ” 

Even
if the court determines that the defendant seeks the benefit
of a new rule, the court must decide whether that rule falls
within one of the two narrow exceptions to the non-
retroactivity principle set forth above. 

does not argue that Apprendi did not
announce a “new rule” for purposes of a Teague analysis,
we will address this issue briefly. At the time Swinton’s
conviction became final on October 5, 1998, the Supreme
Court had held that a state did not need to prove the
existence of a sentencing factor beyond a reasonable doubt.
McMillan v. Pennsylvania, 

, 84-86 (1986). It was
the general understanding of federal courts that drug
quantity was a sentencing factor to be determined by the
judge based on a preponderance of the evidence. See

(citing cases). Thus, at the time
Swinton’s conviction became final, a reasonable jurist
would not have felt compelled to rule 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.
   The decision in Apprendi, of course, dramatically changed
that understanding. Accordingly, courts considering this
issue have held that Apprendi established a “new rule”
under Teague. In McCoy, the Court of Appeals for the
Eleventh Circuit concluded that the rule in Apprendi was
not dictated by precedent existing before Apprendi was
decided, and that before Apprendi, the courts of appeals
had been upholding sentences that were greater than the
otherwise applicable maximum sentences based on a drug
quantity not charged in the indictment, submitted to the
jury and proved beyond a reasonable 

; see also United States v. Moss, 

, 997
(8th Cir. 2001) (“Apprendi is obviously a ‘new rule’ subject
to the general rule of non-retroactivity.”), cert. denied, 

(2002); 

. We also hold
now that Apprendi established a new rule for purposes of
                             15


Teague. Because Apprendi had not been decided at the time
Swinton’s conviction became final, it does not apply
retroactively on collateral review unless it satisfies one of
Teague’s two narrow exceptions.
  Swinton argues that Teague’s second exception, that the
new rule requires the observance of those procedures that
are implicit in the concept of ordered liberty, applies. Other
courts of appeals that have addressed this issue have
consistently held to the contrary. In Brown, for example,
the Court of Appeals for the Fifth Circuit agreed with the
reasoning of those courts that the rule in Apprendi is not a
“watershed” rule that improved the accuracy of determining
the guilt or innocence of a 

.
Rather, the accuracy improved by Apprendi is in the
imposition of a proper sentence, and Apprendi did not alter
our understanding of bedrock elements essential to a
fundamentally fair proceeding. 

Curtis, the Court of Appeals for the Seventh
Circuit addressed whether the rights identified in Apprendi
are so fundamental that any system of ordered liberty is
obliged to include 

. The court looked
to the Supreme Court’s decision in United States v. Cotton,

, 

(2002), where the defendants
argued on direct appeal that their sentences were invalid
under Apprendi because the drug quantity was not alleged
in the indictment or submitted to the petit jury. Applying a
plain error standard of review, the Supreme Court held that
the error did not seriously affect the fairness, integrity or
public reputation of the judicial proceedings given the
overwhelming and undisputed evidence that the defendants
were involved in a vast drug 

-
87. Because an Apprendi violation does not necessarily
undermine the fairness of judicial proceedings, the court in
Curtis concluded that Apprendi did not alter a bedrock rule
of procedure. 

.
  The Court of Appeals for the Eighth Circuit reached the
same conclusion in Moss. The court stated that the
accuracy element of the watershed exception derives from
the function of habeas corpus to “ ‘assure that no man has
been incarcerated under a procedure which creates an
impermissibly large risk that the innocent will be
                             16


convicted.’ 

(quoting 

). It questioned whether Apprendi increases the
reliably of the guilt-innocence determination at all because
the rule does not protect the innocent from conviction, but
limits the sentencing exposure of those who have been
validly convicted. 

The court further noted the
narrow application of this exception and concluded that
Apprendi does not impart a fundamental procedural right
that is a necessary component of a fair trial. Id.; see also
United States v. Sanchez-Cervantes, 

, 670 (9th
Cir.) (“Sending the drug quantity determination to the jury
cannot be fundamental to the fairness of the proceeding if
the judge is allowed to make such findings in some
circumstances.”), cert. denied, 

(2002); United
States v. Mora, 

, 1219 (10th Cir.) (noting that
Apprendi is “clearly not on the same level as a truly
landmark decision such as Gideon [v. Wainwright, 

(1963)].”), cert. denied, 

(2002); 

(holding Apprendi does not satisfy second
exception in Teague); 

(same).
Just recently, the Court of Appeals for the Second Circuit
joined this array. Coleman v. United States, 2003 U.S. App.
LEXIS 8646 (2d Cir. May 7, 2003).
   I do not differ with the view, expressed in Judge Rosenn’s
dissent, of the importance to a criminal defendant of the
protections that the Apprendi decision requires the courts
to provide. In fact, it was that view that led me to dissent
from the majority of the en banc court in United States v.
Vazquez, 

, 117 (3d Cir. 2001) (Sloviter, J.,
dissenting), cert. denied, 

(2002), when it held
that the Apprendi violations did not seriously affect the
fairness, integrity, or public reputation of judicial
proceedings because the court concluded that a jury would
have found, beyond a reasonable doubt, that the required
amount of drugs was involved. I wrote, for the minority of
the en banc court, that the increase in prison time that
resulted after the Apprendi violation affected the
defendant’s substantial rights. But I was not writing for the
court.
  Although the issue before us now is a different one, a
similar issue arises in considering whether to apply the
                                  17


exception to Teague for fundamental rights. I gather that
Judge Rosenn would treat the Apprendi rights in that
fashion. But our en banc court has not done so. Nor has
any of our sister circuits done so. Nothing in the panel
decision of our court on which Judge Rosenn relies, Woods
v. United States, 

(3d Cir. 1993), suggests that
we should do so.
  We agree with these courts that Apprendi does not satisfy
Teague’s second exception to non-retroactivity. Accordingly,
we hold that Apprendi does not apply retroactively to cases
on collateral review.2

                                 IV.

                           CONCLUSION
  For the reasons discussed above, we will affirm the order
of the District Court denying Swinton’s Supplemental
Motion, albeit for different reasons than given by the
District Court.




2. Because Apprendi does not apply retroactively to cases on collateral
review, we need not further address whether Swinton’s Supplemental
Motion raising the Apprendi claim was timely.
                                   18


ROSENN, Circuit Judge, dissenting:
  At stake in this appeal is not merely a decision on an
important question of law, but the right of a defendant to
challenge his sentence for crimes for which he was not
convicted by a jury. The majority concludes that the
decision of the Supreme Court in Apprendi v. New Jersey,

(2000), decided while Swinton’s pro se motion
to vacate or correct his sentence was pending, had no
retroactive effect on his amended motion presenting his
Apprendi claim. I am constrained to disagree. Although the
majority applies decisions of several other courts of appeals
that have reached a similar conclusion, I believe that their
decisions are flawed and inconsistent with the precedent of
our court. They give inappropriate weight to the right to a
jury trial and the beyond-a-reasonable-doubt standard as
constitutional bulwarks of fairness and the presumption of
innocence. I, therefore, respectfully dissent.

                                    I.
   According to the statutory scheme of 21 U.S.C. § 841
under which Swinton was convicted, a defendant guilty of
distributing even a minimal amount of a controlled
substance is subject to a maximum sentence of twenty
years imprisonment. Under § 841(b)(1)(B) of the statute, a
defendant guilty of distributing more than 500 grams of
cocaine is subject to a maximum sentence of forty years. A
defendant guilty of distributing 50 grams of cocaine base
(crack), or more than 5 kilograms of cocaine, is subject to
a maximum sentence of life imprisonment under
§ 841(b)(1)(A). Thus, the drug type and the quantity of the
drug distribution can mean twenty or more additional years
of lost liberty.
  Prior to Apprendi, to convict under the enhanced-penalty
provisions of § 841, once the existence of some quantity of
some controlled substance is proven to the jury, the
Government had to prove the precise drug type and
quantity only before the sentencing judge and then only by
a preponderance of the evidence. See United States v. Monk,

, 27 (2d Cir. 1994). Apprendi held that
consistent with the Sixth and Fourteenth1 Amendments of

1. In the case of a federal criminal proceeding, the controlling principle
is the Fifth Amendment due process clause, rather than the Fourteenth.
                                     19


our Constitution, a defendant is entitled to a jury finding
on each element of a crime that increases his or her
maximum statutory sentence. In the case of § 841
prosecutions occurring after Apprendi, the Government
unquestionably must prove the drug type and quantity
beyond a reasonable doubt before a jury in order to obtain
a correspondingly enhanced sentence. See United States v.
Vazquez, 

, 96 (3d Cir. 2001) (en banc) (holding
that post-Apprendi, drug quantity is an element of the
offense to be proven to jury). The critical question here is
whether this change ought to be applied retroactively to
convictions such as Swinton’s, occurring before the rule
was announced.2
   By way of background I note the following facts. Although
the issues of drug type and quantity were placed before the
jury in Swinton’s trial, the jury instructions were vague and
inconsistent as to the standard of proof required for these
elements. At times, the judge told the jury that it had to
find beyond a reasonable doubt that the drug was crack
and that the amount was over 50 grams in order to impose
a more serious sentence. However, at another point in the
jury instructions, the judge stated, “It’s sufficient if the
evidence is shown that he knew the substance was one of
the drugs whose distribution Congress has made unlawful.”
The jury was also told it could find the existence of the
requisite quantum of drugs if the Government showed the
accuracy of the alleged amount “with a reasonable degree of
certainty.”
  At sentencing, Swinton contested the sufficiency of the
evidence as to drug type. The trial judge convened a
hearing, at which witnesses were called, to determine
whether the drug in question was crack. At this sentencing
hearing, the Government asserted that its burden was a
preponderance of the evidence. Although it was unclear
what standard he applied, the judge found that the

2. The issue specified in the Certificate of Appealability is strictly a legal
one, whether Apprendi should be applied retroactively. It would,
therefore, be a matter for the District Court, if Apprendi were deemed
retroactive, to determine whether Swinton’s sentence should be corrected
or whether he should be granted a new trial.
                             20


evidence “overwhelmingly”     showed    that   the   drug   in
question was crack.

                             II.
   Deeply embedded in our constitutional jurisprudence is
the proposition that a defendant may not be punished for
a crime unless every element thereof is proven to a jury
beyond a reasonable doubt: “[T]he proscription of any
deprivation of liberty without ‘due process of law,’ Amdt.
14, and the guarantee that ‘[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public
trial, by an impartial jury,’ Amdt. 6, [t]aken together, . . .
indisputably entitle a criminal defendant to ‘a jury
determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable
doubt.’ ” 

(citing United States
v. Gaudin, 

, 510 (1995)) (alterations in
original). Apprendi addressed the novel issue of whether,
once a jury finds guilt of an underlying offense, additional
facts that determine the defendant’s maximum statutory
sentence can be left for the judge to decide by a
preponderance of the evidence, or whether they too are
elements of the crime to be determined by the jury by proof
beyond a reasonable doubt. See 

(Scalia, J., concurring).
   The Supreme Court concluded that a factual
determination made after a defendant’s conviction of an
underlying offense that dictates maximum statutory
sentence goes to “the degree of criminal culpability” for the
offense and is therefore an element of the crime that must
be proven beyond a reasonable doubt before a jury. The
threat of heightened sentence is indistinguishable from the
threat of conviction for a separate offense:
    If a defendant faces punishment beyond that provided
    by statute when an offense is committed under certain
    circumstances but not others, it is obvious that both
    the loss of liberty and the stigma attaching to the
    offense are heightened; it necessarily follows that the
    defendant should not—at the moment the State is put
    to proof of those circumstances—be deprived of [the
                              21


    constitutional] protections that have, until that point,
    unquestionably attached.

. In some cases, many years of
additional imprisonment hang on the determination of the
enhanced sentencing factors.
  The right to a jury trial and the beyond-a-reasonable-
doubt standard of proof “provide concrete substance for the
presumption of innocence, and . . . reduce the risk of
imposing . . . deprivations erroneously.” 

(internal citations and quotations omitted). The
protections extend to enhanced maximum penalties, just as
surely as to an “underlying” offense, because a defendant
should “never get more punishment than he bargained for
when he did the crime.” 

(Scalia, J., concurring)
(emphasis in original). Before the Court announced the
Apprendi rule, then, defendants were subject to a
constitutionally intolerable risk of being sentenced for a
period of time in excess of the legislatively prescribed
sentence.
  Thus, Congress, by making a defendant’s liberty
contingent on drug type and quantity in § 841
prosecutions, effectively mandated that these elements be
proven to a jury, because our Constitution bars the
deprivation of liberty on any other basis. See 

n.19. (“[W]hen the term ‘sentence enhancement’
is used to describe an increase beyond the maximum
authorized statutory sentence, it is the functional
equivalent of an element of a greater offense than the one
covered by the jury’s guilty verdict.”). Because our
Constitution entrusts the jury to ascertain the truth of all
criminal allegations and does not permit conviction based
on anything less than a jury finding (unless there is a
waiver of jury trial) of all relevant facts beyond a reasonable
doubt, drug type and quantity must be submitted to the
jury.

                              III.
  As the majority correctly observes, the § 2255
retroactivity inquiry generally involves a preliminary
determination of whether the new rule is substantive or
                                   22


procedural, because different retroactivity analyses apply
depending on its categorization.3 In Davis v. United States,

(1974) the Supreme Court suggested that
failure to retroactively apply substantive new rules,
“inherently results in a complete miscarriage of justice and
presents exceptional circumstances that justify collateral
relief under § 2255.” 

(1974) (internal
quotations omitted). Unlike substantive new rules, which
are essentially automatically retroactive, Teague v. Lane,

(1988), set forth very narrow criteria under
which a procedural rule ought to be given retroactive effect.
The Court held that an exception to the general rule
forbidding retroactivity would be a “watershed” new rule
raising an issue of fundamental fairness that is “implicit in
the concept of ordered liberty.” 

311. The Court
also noted that it could envision very few such new rules
that had not yet come into existence. 

Unless a
new procedural rule falls within this exception to the
general rule, it “will not be applicable to those cases which
have become final before the new rule[ ] [is] announced.”4

  The threshold question before us then, is whether
Apprendi is substantive or procedural. In Davis, the Court
deemed substantive a new rule under which “[defendant’s]
conviction and punishment are for an act that the law does
not make criminal.” 

. Bousley v.
United States, 

(1998) reiterated the
paradigmatic “substantive” new rule: it held that Supreme
Court decisions altering the “substantive” terms of a federal
statute, i.e., which hold that a statute “does not reach
certain conduct . . . [,] necessarily carry a significant risk
that a defendant stands convicted of an act that the law
does not make criminal,” and were to be applied
retroactively. 

(internal citations and quotations

3. As the majority correctly holds, the instant case announces a new rule
because it imposes upon the prosecution a new obligation to prove
beyond a reasonable doubt to a jury that the defendant committed the
enhancing factors that warranted additional sentencing.
4. Teague also set forth another exception, involving rules which place
certain primary conduct beyond the power of the legislature to proscribe.
This exception has no relevance to this case.
                             23


omitted). Procedural new rules are generally characterized
by the introduction of novel mechanisms to improve
fairness and the ascertainment of truth in criminal
proceedings. See Woods v. United States, 

, 678
(3d Cir. 1993).
   In Woods v. United States, our court also considered the
question of retroactivity in a criminal adjudication arising
out of a change in the law after the defendant’s conviction.
The central issue there was the retroactivity of the Supreme
Court’s Hughey decision, Hughey v. United States, 

(1990), which dealt with the imposition of the penalty
of restitution based on alleged wrongdoing that was found
by a judge and not a jury. The statute at issue in Hughey
had been interpreted to allow for judge-decreed restitution
on the basis of related credit card fraud crimes, once the
defendant was indicted and convicted of a single credit card
fraud offense under the statute. Hughey held that, as a
matter of statutory construction, conviction of each
instance of fraud was required before corresponding
restitution could be 

. The
Woods court, in considering a motion under Rule 35 of the
Rules of Criminal Procedure to correct an unlawful
sentence, turned to the Supreme Court’s retroactivity
jurisprudence developed under §§ 2254 and 2255 habeas
corpus proceedings to determine Rule 35 retroactivity.

.
  Woods observed that the Hughey rule did not fit neatly
into either the “substantive” or “procedural” categories as
set forth by the Supreme Court: “In contrast to Davis . . .,
Hughey has in no way implied that Woods was convicted
for acts that the . . . statute did not make criminal.” 

. Therefore, because it did not render
previously unlawful primary conduct lawful, Hughey was
not substantive. Yet, our court noted,
    Hughey’s holding also cannot readily be defined as a
    new rule of criminal procedure. In its retroactivity
    analysis the Court has treated as new rules of criminal
    procedure such developments as the application to the
    states of the Fourth Amendment exclusionary rule in
    Mapp v. Ohio, 

, 

, 

(1961), the prohibition on race-based peremptory
                             24


    challenges of Batson v. Kentucky, 

, 

, 

(1986), and the
    requirements of Miranda v. Arizona, 

, 

, 

(1966). In our view,
    Hughey’s limitation on a district court’s authority to
    order restitution bears little resemblance to what the
    Court has commonly characterized as a new criminal
    procedural rule for retroactivity purposes.

-678 (internal citations omitted).
Unlike the Gideon rule, considered the paradigmatic
watershed procedural rule, or these other procedural rules,
there is nothing especially new about the procedure in
Apprendi: “The new part of the Apprendi rule . . . is the
Supreme Court’s novel application of this long-recognized
constitutional principle.” Rosario v. United States, 

, at *3 (S.D.N.Y.,2001) (emphasis in original).
  We are confronted, then, with a rule requiring that all
facts correlated to a defendant’s sentence be subject to the
constitutional protections of our criminal factfinding
procedure — the jury and the beyond-a-reasonable-doubt
standard. And yet, much like the case of the Hughey rule,
the existing framework for determining the retroactivity of
new rules is inadequate to address the significant
deprivations our system has imposed on drug offenders in
the absence of factfinding surety. Drug offenders convicted
prior to Apprendi may have surrendered twenty or more
years of their liberty on the basis of findings which have
been deemed constitutionally inadequate to support a
conviction. Although I recognize the limited circumstances
set forth in Davis/Bousley and Teague for determining
retroactivity, I do not believe that the Supreme Court
intended to foreclose retroactivity in instances of such grave
injustice as this.
   Therefore, in accordance with Judge Becker’s rationale in
Woods, I believe that the retroactivity of Swinton ought to
be viewed in light of the considerations that undergird the
retroactivity doctrines. The selectiveness with which
retroactivity is applied reflects the underlying importance of
finality of adjudication in our legal system. However, there
are countervailing factors which sometimes warrant
retroactivity. Davis “concluded that the injustice that would
                             25


occur but for the retroactive application of the new circuit
court decision was sufficiently egregious to warrant
retroactivity.” Woods, at 676-77. Moreover, Bousley was
concerned with the possibility of actual innocence of the
defendant and the impermissibly large risk that the
innocent will be convicted. 

. What
underlies these cases is the fear of unjust punishment
based on unreliable factfinding. Substantive new rules are
most likely to give rise to such risk, but this principle
should not be so narrowly circumscribed. Similarly, a new
procedural rule may partly qualify under the Teague
exception if it improves accuracy of the trial and sentence,
and confidence in our judicial process. Sawyer v. Smith,

, 242 (1990). Thus we can divine basic
principles from these decisions.
   Here, therefore, as in Woods, “rather than risk applying
what may be a wooden or unduly formulaic approach, we
will analyze [ ] retroactivity with a view toward the common
animating principles underlying the two retroactivity
doctrines.” 

. In Woods, Judge
Becker concluded that the two separate doctrinal standards
that the Court has created “for the retroactive application of
new rules of substantive and procedural law are not, at
bottom, all that different. Rather, there are common
animating principles underlying the two.” 

Both
doctrinal procedural and substantive standards, he wrote,
reflect the principle that “new decisions will not be
retroactively applied without substantial justification.” 

he set out to balance the interest in finality with
the interest in avoiding unjust punishments. In making this
determination, Judge Becker considered the risk of
inaccurate factfinding and the severity of the punishment.
Observing that the judge-rendered determination of guilt in
restitution offenses provided some assurance of accuracy
and, most importantly, that the right at stake was one of
property and not liberty, Woods held that the interest in
finality outweighed the risk of unjust conviction. Judge
Becker therefore concluded that Hughey was not to be
retroactively applied to the defendant in Woods. 

  By contrast, in the instant case, mere money is not at
stake; liberty is. This court noted, significantly, that
                             26


“restitution cannot . . . be considered the same as
incarceration for retroactivity purposes. [A scenario
involving incarceration] would present us with far stronger
considerations in favor of retroactive relief. When liberty is
not at stake, the reasons to apply a new decision
retroactively, and hence to bend the usual rules of finality,
are not necessarily lacking, but are more likely to be
missing.” 

Thus Woods, despite holding the
restitution rule non-retroactive, adumbrates a different
outcome in cases, such as Swinton’s, where a liberty
interest is at stake. In the instant case, the prosecution has
never presented proof to a jury and beyond a reasonable
doubt that Swinton was guilty of distributing the type of
drug and the quantity by which his sentence was
enhanced. Imposing an additional twenty years of
confinement without having the facts pertaining to
sentencing enhancement submitted to a jury for fact
finding beyond a reasonable doubt, as required by
Apprendi, constitutes a miscarriage of justice that trumps
the judicial preference for finality.
  Swinton cites us to authority that Apprendi announced a
substantive new rule in the recent decision of the Supreme
Court in Ring v. Arizona, 

(2002). The case
held that Arizona’s sentencing scheme was incompatible
with the Sixth Amendment because the scheme permitted
a judge to make the factual determination that statutory
aggravating factors existed warranting the death sentence.
The question presented in Ring was whether that
aggravating factor may be found by the judge, as Arizona
law specified, or whether the Sixth Amendment’s jury trial
guarantee, made applicable to the states by the Fourteenth
Amendment, requires that the aggravating factor be
entrusted to the jury. 

In deciding this
question, the Ring court painstakingly reviewed its decision
in Apprendi, noting the fusion therein of the core crime with
the hate crime enhancement. The court held that, as in
Apprendi, the death sentence violated the defendant’s right
to a jury determination that he is guilty of every element of
the crime with which he is charged. 

the similarity in issues and treatment to
Apprendi, provides little illumination on whether the
                              27


Apprendi rule is substantive or procedural. However,
significant to the case now before us, the Supreme Court in
Ring rejected the proposition “that judicial authority over
the finding of aggravating factors may be a better way to
guarantee against the arbitrary imposition of the death
penalty,” holding instead that
    [t]he Sixth Amendment jury trial right, however, does
    not turn on the relative rationality, fairness, or
    efficiency of potential factfinders. Entrusting to a judge
    the finding of facts necessary to support a death
    sentence might be an admirably fair and efficient
    scheme of criminal justice designed for a society that is
    prepared to leave criminal justice to the State. The
    founders of the American Republic were not prepared
    to leave it to the State, which is why the jury-trial
    guarantee was one of the least controversial provisions
    of the Bill of Rights. It has never been efficient; but it
    has always been free.

(internal quotations and citations
omitted). Although Ring involved capital punishment, the
Court made clear that the same legal considerations would
apply to a non-capital criminal case.
   Thus, one does glean from Ring that the Court would
consider the right to a jury trial a question of “fundamental
fairness” — “implicit in the concept of ordered liberty.” See

. Although trying elements of a
crime before a judge may have some efficiency benefits, and
may not be an entirely inaccurate factfinding mechanism,
the Ring court suggests that the right to a jury trial is,
nonetheless, essential to popular confidence in the fairness
of the system. Teague suggests that such new rules,
implicating “fundamental fairness,” are not barred from
retroactive application.
   Moreover, the Apprendi decision gives meaning to the
venerable      presumption     of  innocence      in   criminal
proceedings. “An Apprendi claim in the context of § 841,
. . . asserts that while a defendant is guilty of possessing an
unspecified quantity of a controlled substance, he is
actually innocent of possessing the quantity necessary to
be found guilty and sentenced under the more onerous
                             28


provisions of 21 U.S.C. § 841(b).” United States v. Clark,

, 388 (5th Cir. 2001) (R.M. Clark, J.,
dissenting). In this vein, the Supreme Court has portrayed
the right to a finding of guilt beyond a reasonable doubt as
follows:
    The standard of proof beyond a reasonable doubt,
    “plays a vital role in the American scheme of criminal
    procedure,” because it operates to give “concrete
    substance” to the presumption of innocence to ensure
    against unjust convictions, and to reduce the risk of
    factual error in a criminal 

, 90 S.Ct., at 1072. At the same time by impressing
    upon the factfinder the need to reach a subjective state
    of near certitude of the guilt of the accused, the
    standard symbolizes the significance that our society
    attaches to the criminal sanction and thus to liberty
    itself. 

90 S.Ct., at 1076 (Harlan, J.,
    concurring).
Jackson v. Virginia, 

, 315 (1979) (quoting In re
Winship, 

(1970)). Similarly, the Supreme
Court has also recognized the centrality of the right to a
trial by jury as a guardian against unjust conviction:
    Providing an accused with the right to be tried by a
    jury of his peers gave him an inestimable safeguard
    against the corrupt or overzealous prosecutor and
    against the compliant, biased, or eccentric judge. If the
    defendant preferred the common-sense judgment of a
    jury to the more tutored but perhaps less sympathetic
    reaction of the single judge, he was to have it.
Duncan v. Louisiana, 

, 156 (1968).
   Therefore, even though Apprendi fits snugly into neither
the substantive nor procedural analytic categories, it is
distinguished by the fundamental character of the rights it
confers. It both ensures that the presumption of innocence
is given substance and that public confidence in the
fairness of criminal proceedings is maintained, particularly
where loss of liberty is at stake. Under these
circumstances, Apprendi is the kind of rule that
retroactivity doctrine was intended to capture in a case
such as this.
                              29


                              IV.
   [F]ailing to apply Apprendi [in § 841 cases] retroactively
. . . create[s] the [ ] troubling possibility that a defendant
has been convicted of conduct that constitutes a less
serious offense than the one for which he was sentenced.”
Coleman v. United States, 

, 93 (2d Cir. 2003)
(B.D. Parker, J., concurring). Neither Woods nor our long-
standing faith in the jury system and the beyond-a-
reasonable-doubt standard will countenance such a
troubling possibility. Thus, following the rationale of this
court’s decision in Woods, Swinton’s situation entitles him
to the retroactive application of Apprendi for the reasons
set forth above. I, therefore, respectfully dissent. I would
remand this case to the District Court for further
proceedings consistent with this opinion.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit