Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-7-2007

USA v. Coleman
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4118




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"USA v. Coleman" (2007). 2007 Decisions. Paper 1520.
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                                                    NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                         No. 05-4118
                        ____________

              UNITED STATES OF AMERICA

                               v.

                    RANDY COLEMAN
                       also known as
                    STEVEN JOHNSON
                       also known as
                     STEVEN LEWIS
                       also known as
                      KHABIR HAFIZ

                            Randy Coleman,
                                  Appellant
                        ____________

        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                   (D.C. No. 01-cr-00038-1)
            District Judge: Clarence C. Newcomer
                        ____________

          Submitted Under Third Circuit LAR 34.1(a)
                     December 13, 2006

Before: FISHER, CHAGARES and GREENBERG, Circuit Judges.

                    (Filed: March 7, 2007 )
                         ____________

                 OPINION OF THE COURT
                      ____________
FISHER, Circuit Judge.

       Appellant Randy Coleman argues (1) that the District Court erred in raising sua

sponte the non-retroactivity principle of Teague v. Lane, 

(1989); and

(2) that the rule of Crawford v. Washington, 

(2004), should be applied

retroactively. The former argument is without merit and the latter argument is foreclosed

by the United States Supreme Court’s ruling in Whorton v. Bockting, 549 U.S. ___

(Feb. 28, 2007). For the reasons that follow, the District Court’s judgment denying

Coleman’s habeas petition will be affirmed.

                                               I.

       Because we write for the parties only, we will forgo a lengthy recitation of the

factual and procedural history of this case. On January 23, 2001, a grand jury in the

Eastern District of Pennsylvania returned an indictment charging Coleman with

possession of a firearm in furtherance of drug trafficking activity, in violation of 18

U.S.C. § 924(c), possession with intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Coleman proceeded to trial on May 9, 2001. At trial, the statements of an

adverse witness who had died were introduced pursuant to the “excited utterance” hearsay

exception of Federal Rule of Evidence 803(2). On May 11, 2001, the jury convicted

Coleman on all counts and on July 29, 2001, the District Court imposed a sentence of 220

months of imprisonment, five years of supervised release, a $1,000 fine, and a special



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assessment of $300. On June 3, 2003, we affirmed the conviction and sentence. See

United States v. Coleman, 68 Fed. Appx. 300 (3d Cir. 2003) (unpublished).

       On October 18, 2004, Coleman filed a 28 U.S.C. § 2255 habeas petition raising,

inter alia, the issue of a violation of his right to confront witnesses pursuant to the

Supreme Court’s decision in 

. The Government did not raise

the affirmative defense of Teague – that is, the principle that with rare exception for

“watershed rules,” new rules of criminal procedure do not apply retroactively to cases

already final on direct 

(plurality opinion). However, the District

Court invoked the principle of Teague sua sponte, finding that in order to raise a

challenge based on Crawford, Coleman first had to establish that the rule announced in

that case applied retroactively. Applying Teague, the District Court found that Crawford

did not announce a watershed rule of criminal procedure and did not affect primary rights.

Accordingly, it denied Coleman’s habeas petition. Coleman filed a motion for

reconsideration. Although the District Court denied the motion, it granted a certificate of

appealability as to whether Crawford applies retroactively.

                                                II.

       The District Court had jurisdiction over this criminal matter pursuant to 18 U.S.C.

§ 3231, and over Coleman’s collateral petition pursuant to 28 U.S.C. § 2255. Because the

District Court issued a certificate of appealability under 28 U.S.C. § 2253 regarding its

final decision denying habeas relief, we have jurisdiction under 18 U.S.C. § 1291. We



                                                3
review the District Court’s legal conclusions de novo. United States v. Cepero, 

, 258 (3d Cir. 2000).

          Coleman challenges the District Court’s authority to raise the issue of the

retroactivity of Crawford sua sponte. This challenge must fail. Although “a court need

not entertain the [non-retroactivity issue] . . . if the State has not raised it . . .,” Goeke v.

Branch, 

, 117 (1995) (per curiam), we clearly retain the discretion to reach

the issue sua sponte. See Schiro v. Farley, 

, 229 (1994) (“[A] State can

waive the Teague bar by not raising it. . . . Although we undoubtedly have the discretion

to reach the State’s Teague argument, we will not do so in these circumstances.”); Wilmer

v. Johnson, 

, 455 (3d Cir. 1994) (“Although we have the discretion to reach

the . . . [non-retroactivity issue] sua sponte . . . we decline to do so in this case.”).

Although the doctrine of non-retroactivity is not a jurisdictional hurdle, it remains a

“threshold question,” Caspari v. Bohlen, 

, 389 (1994), that a court

appropriately raises as the “first step” in its review of a habeas petition. 

.

          Coleman also argues that, even if it was not error for the District Court to raise the

issue of the retroactivity of Crawford sua sponte, the District Court’s conclusion that

Crawford should not be retroactively applied was erroneous. This argument is foreclosed

by the Supreme Court’s holding in Whorton v. 

, that the rule of Crawford

is not a watershed rule of criminal procedure to be applied retroactively.



                                                  4
                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment denying

the petition for habeas relief.




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