In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4253

United States of America,

Plaintiff-Appellee,

v.

Anthony A. Smith,

Defendant-Appellant.

Petition for Rehearing and
Rehearing En Banc

Decided May 8, 2001



  Before Flaum, Chief Judge, and Posner,
Coffey, Easterbrook, Ripple, Manion, Kanne,
Rovner, Diane P. Wood, Evans, and Williams,
Circuit Judges.

  Defendant-appellant filed a petition for
rehearing and rehearing en banc on
February 15, 2001. A vote of the active
members of the court was requested,
Circuit Judges Rovner, Diane P. Wood and
Williams voted to grant rehearing en
banc, and a majority of the judges voted
to deny rehearing en banc. All of the
judges on the panel have voted to deny
rehearing. The petition for rehearing is
therefore DENIED.


 Diane P. Wood, Circuit Judge, with whom
Rovner and Williams, Circuit Judges, join,
dissenting from denial of rehearing en
banc. The panel’s opinion in this case
addresses and resolves a question of
general importance for a recurring issue
in collateral attacks on criminal
convictions: how do the rules of
procedural default operate when a later
Supreme Court decision changes the legal
landscape faced by a defendant at the
time of trial? According to the panel,
even if there is no way that a defendant,
or more to the point, defense counsel,
could have anticipated the later legal
ruling, the defendant cannot raise the
point in a later collateral attack. I
find this conclusion troubling from many
perspectives, which I explain briefly
below: first, contrary to the panel’s
suggestion, it is neither compelled by
nor is it even consistent with the
Supreme Court’s pair of decisions in
Bailey v. United States, 

(1995), and Bousley v. United States, 

 (1998); second, as the annual
filing statistics from this court and our
sister circuits attest, habeas corpus
petitions and the rules of procedural
default consume enormous resources for
the court and are of vital importance to
the parties; and third, from a pragmatic
standpoint, the panel has imposed an
impossible burden on defense counsel.

  First and most importantly, the panel
has not paid sufficiently close attention
to the rules the Supreme Court was
following in Bailey and Bousley. Bailey,
everyone will recall, resolved a conflict
in the circuits over the interpretation
of the "use" part of one of the federal
firearms statutes, 18 U.S.C. sec. 924(c).
The Court’s decision adopted a narrower
interpretation than many courts,
including this one, had used, by holding
that "use" connoted active employment.
The Bailey ruling was followed by a flood
of petitions for collateral relief filed
by prisoners who had been convicted under
the disapproved standard. These were
straightforward enough when the
petitioner had been convicted after a
full trial, and when there was no
alternate ground upon which to uphold the
conviction, but it was unclear whether
Bailey should be applied in cases where
the defendant had entered a guilty plea
to the offense.

  In Bousley, the Court confronted that
question. It first held that the
retroactivity doctrine of Teague v. Lane,

 (1989), was not applicable
and did not bar Bousley’s claim, because
Teague applies only to procedural rules.
523 U.S. at 620. Furthermore, the essence
of Bousley’s argument was that his guilty
plea was not knowing and intelligent
(because he pleaded thinking that "use"
meant passive association with the gun,
and that was not the correct
interpretation of the statute). There was
nothing "new" about the rule that guilty
pleas must be knowing and intelligent,
which was another reason why Teague was
not helpful. Id. Next, the Court turned
to the point that is important for the
case now before us: procedural default.
Even if Bousley’s claim was not Teague-
barred, it was procedurally defaulted
because Bousley had not challenged the
validity of his plea on direct appeal.

  This led the Court to consider whether
any exception to the rules of procedural
default applied that would permit
Bousley’s claim to go forward. One
possibility is a showing of cause and
prejudice, as required by Wainwright v.
Sykes, 

, 87 (1977); the other
is a showing that the constitutional
error resulted in the conviction of one
who is actually innocent. With respect to
the "cause and prejudice" avenue, the
Court looked at two potential arguments:
first, that an argument based on the
"true" meaning of sec. 924(c) was
unavailable to Bousley at the time of his
plea; and second, that an effort to show
that "use" was being treated too broadly
would have been futile at the time of the
plea. The Court concluded that Bousley
could not show "cause" in either of those
ways, but it found that he was
essentially making a claim of actual
innocence, which sufficed to overcome his
procedural default. Contrary to the
implication in the panel’s opinion,
however, the Court did not rule as a
matter of law that the first two theories
were meritless in all cases. Instead, as
the following (somewhat lengthy) passage
from the Bousley opinion illustrates, it
took a more nuanced view of those
arguments:

  Petitioner [i.e. Bousley] offers two
explanations for his default in an
attempt to demonstrate cause. First, he
argues that "the legal basis for his
claim was not reasonably available to
counsel" at the time his plea was
entered. . . . This argument is without
merit. While we have held that a claim
that "is so novel that its legal basis is
not reasonably available to counsel" may
constitute cause for a procedural
default, Reed v. Ross, 

, 16
(1984), petitioner’s claim does not
qualify as such. The argument that it was
error for the District Court to misinform
petitioner as to the statutory elements
of sec. 924(c)(1) was most surely not a
novel one. See Henderson [v. Morgan] 426
U.S. [637], at 645-646 [(1976)]. Indeed,
at the time of petitioner’s plea, the
Federal Reporters were replete with cases
involving challenges to the notion that
"use" is synonymous with mere
"possession." . . . Petitioner also
contends that his default should be
excused because, "before Bailey, any
attempt to attack [his] guilty plea would
have been futile." . . . This argument,
too, is unavailing. As we clearly stated
in Engle v. Isaac, 

 (1982),
"futility cannot constitute cause if it
means simply that a claim was
’unacceptable to that particular court at
that particular time.’" Id., at 130,
n.35. Therefore, petitioner is unable to
establish cause for his default.

Bousley, 523 U.S. at 622-23 (some
citations omitted).

  This discussion would have been
considerably shorter if the Court had
really meant to say that legal
unavailability and futility are simply
never enough to show "cause" excusing a
procedural default. It would have needed
only to say so, without all the
qualifications that appear in the
paragraph quoted above. In the case
before it, it was rather easy to find
that neither legal unavailability nor
futility applied. After all, the Court
had taken Bailey to resolve a conflict in
the circuits, and as the Court pointed
out, the Federal Reporters were "replete"
with decisions on which Bousley’s lawyer
could have relied.
  In order to apply Bousley to our case,
we must take a careful look at the
criteria the Court established and the
reasons why Bousley’s own effort to
demonstrate cause failed. Taking the
Court at its word and considering the
"legal unavailability" argument first,
there are several points that it flagged
for consideration before a court may
conclude that an argument was legally
"available." First, was the proposed rule
fairly suggested by precedent? Second,
had any court accepted the proposed rule?
Third, if the answer to the first two is
yes, how widely accepted had the rule
become at the time of the guilty plea (or
other pertinent time)? With respect to
the futility point, the Court drew a
similar distinction between arguments
that are unacceptable to particular
courts, at particular times, and
arguments that are more generally
unacceptable. That this is what the Court
meant becomes even more apparent when one
looks at footnote 2 to the Bousley
opinion, on the same page as the quoted
passage, where the Court quotes the
passage from Engle that stresses the
"availability" and hence non-futility of
a claim that "other defense counsel have
perceived and litigated. . . ." Bousley,
523 U.S. at 623 n.2, quoting Engle, 456
U.S. at 134.

  Applying these criteria to the argument
based on the Supreme Court’s decision in
Apprendi v. New Jersey, 

(2000), and its applicability to the drug
type and quantity issue in prosecutions
under 21 U.S.C. sec. 841 and related
statutes, I believe that Smith makes a
compelling argument for legal
unavailability. (I do not discuss the
futility ground separately, both because
it is unnecessary to do so and because as
I show below there was nothing
"particular" about any given court’s
attitude toward Apprendi-like arguments
for drug cases.)

  Prior to Apprendi, the Federal Reporters
were anything but "replete" with cases
holding or even suggesting that drug type
and quantity were elements of the offense
under 21 U.S.C. sec. 841, and thus that
these details had to be charged in the
indictment and submitted to the jury
under the reasonable doubt standard for
its determination. On the contrary, prior
to Apprendi, no court of appeals in the
nation had held that drug type and
quantity were elements of the offense.
The first court of appeals to so hold was
the Eighth Circuit, in a decision issued
July 18, 2000. United States v. Aguayo-
Delgado, 

 (8th Cir. 2000).
Even after the Supreme Court issued Jones
v. United States, 

 (1999), in
March 1999, every circuit that decided
this question held, in accordance with
long-standing precedent, that drug type
and quantity were sentencing factors. See
United States v. Jackson, 

,
920 (7th Cir. 2000); United States v.
Thomas, 

, 384 (2d Cir. 2000);
United States v. Swiney, 

,
404 n.5 (6th Cir. 2000); United States v.
Smith, No. 99-4454, 

 (4th
Cir. Feb. 8, 2000) (unpublished); United
States v. Hester, 

, 1291-93
(11th Cir. 2000); United States v. Jones,

, 1183-86 (10th Cir. 1999);
United States v. Williams, 

,
104-07 (D.C. Cir. 1999). In the interim
between Jones and Apprendi, only the
Fifth and the Eighth Circuits suggested
that the question was at least open, and
both of these circuits concluded that if
Jones affected the treatment of drug type
and quantity, the effect was not obvious,
so a district court that treated them as
sentencing factors did not commit plain
error. See United States v. Grimaldo, 

, 974-75 (8th Cir. 2000); United
States v. Rios-Quintero, 

,
215 (5th Cir. 2000). Even assuming that
Grimaldo and Rios-Quintero adequately
placed the treatment of drug type and
quantity up for debate, however, those
opinions were not issued until the spring
and summer of 2000, eight years after the
panel’s opinion would have had Smith’s
lawyer raise the issue. In my view, the
panel has substantially tightened the
test the Supreme Court used in Bousley
and Ross, and in so doing it has placed
an impossible burden of prescience on
defense lawyers.
  The issue before us can be phrased
succinctly as follows: is the test for
"cause" the lack of any reasonable basis
for making a legal argument that would
scrape by Rule 11 scrutiny, or is the
test for "cause" the lack of a suggestion
in precedent that would support the
particular argument? Bousley, as I see
it, takes the latter approach. It compels
us to read the term "legal precedent" in
a way that fairly leaves some room for
the legal unavailability argument
recognized in Reed v. Ross and the
futility argument discussed in Engle v.
Isaac. The panel’s opinion has ignored
these distinctions. It holds instead that
counsel should have anticipated Apprendi
and its further application to drug
cases, based solely on the fact that
McMillan v. Pennsylvania, 

(1986), had been decided at the time of
Smith’s trial. Respectfully, I think
McMillan cannot bear this weight. A brief
look at McMillan shows that this 1986
decision went no further than to describe
the distinction between "sentencing
factors" and "elements of an offense."
The Court did not even say that due
process would ever require something to
be treated as an element of the offense
if Congress had labeled it as a
sentencing factor. Instead, its actual
holding was to reject the conclusion that
Pennsylvania had created an element of
the offense. In that sense, arguably all
the discussion about elements was
therefore dicta.

  Even if I am wrong about Bousley, we
have before us a choice between two
possible rules for deciding whether a
person has shown "cause" for purposes of
a collateral attack. One is the rule the
panel has apparently adopted, and the
other the one I believe Bousley requires
that I have sketched out here. The
difference for criminal defendants
between these two rules is of the utmost
importance-- surely something I would
have thought was worth the en banc
court’s time and plenary consideration.
Whichever rule is adopted will apply to
every collateral attack that comes before
us under 28 U.S.C. sec. 2255, not just
drug cases where the Apprendi rule is at
issue. Thus, even if on remand Smith were
to fail because the court decided that
Apprendi should not be applied
retroactively to drug cases on collateral
review, the importance of the issue now
before us would remain.

  Last, I fear that the panel’s rule will
create an administrative nightmare not
only for defense counsel trying to
represent their clients responsibly, but
also for the district courts and this
court. After this, defense counsel will
have no choice but to file one "kitchen
sink" brief after another, raising even
the most fanciful defenses that could be
imagined based on long-term logical
implications from existing precedents.
The Supreme Court may never go down most
of those paths, but that will not matter,
because otherwise the defendant will find
him- or herself staring at a procedural
default that cannot be overcome for good
cause. I have the deepest concern about
the consequences of this approach for the
courts. Because I believe that this case
raises an important question for a major
part of our docket, and I disagree with
the panel’s interpretation of Bousley, I
respectfully dissent from the court’s
decision not to rehear this case en banc.