Paulino v. United States

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 10, 2003
• Docket: 01-6424
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Paulino v. United States No. 01-6424 ELECTRONIC CITATION: 2003 FED App. 0435P (6th Cir.) File Name: 03a0435p.06 ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Louis A. Chaiten, JONES, DAY, REAVIS & POGUE, Cleveland, Ohio, for UNITED STATES COURT OF APPEALS Appellant. Frances E. Catron, Jane E. Graham, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for FOR THE SIXTH CIRCUIT Appellee. _________________ _________________ JUAN LEONARDO PAULINO , X Petitioner-Appellant, - OPINION - _________________ - No. 01-6424 v. - WALTER H. RICE, District Judge. In this case, Appellant > asks us to reverse the dismissal of his successive motion to , vacate, set aside or correct sentence, filed pursuant to 28 UNITED STATES OF AMERICA , - Respondent-Appellee. - U.S.C. § 2255. The district court had jurisdiction under 28 U.S.C. § 2255, as authorized by this Court. See 28 U.S.C. N §§ 2244(b)(3)(A) & 2255. Our jurisdiction exists under 28 Appeal from the United States District Court U.S.C. §§ 2253 & 2255. For the reasons which follow, the for the Eastern District of Kentucky at Lexington. district court’s order dismissing Appellant’s successive No. 89-00016—Karl S. Forester, Chief District Judge. motion will be affirmed.

Argued: August 8, 2003 I. Background

Decided and Filed: December 10, 2003 In December, 1989, Appellant was convicted by a jury of conspiracy, tax evasion, and conducting a continuing criminal Before: BOGGS, Chief Judge; SILER, Circuit Judges; enterprise (“CCE”). The latter offense requires a showing RICE, District Judge.* that the defendant committed a drug violation that was part of a continuing series of federal criminal drug violations. See 21 _________________ U.S.C. § 848(c). He was sentenced to 265 months of imprisonment for conspiracy and the CCE, and 60 months for COUNSEL tax evasion, the sentences to run concurrently. In 1991, this Court vacated Appellant’s conspiracy conviction, but ARGUED: Pearson N. Bownas, JONES, DAY, REAVIS & otherwise affirmed. See United States v. Paulino, 935 F.2d POGUE, Cleveland, Ohio, for Appellant. Frances E. Catron, 739 (6th Cir.), cert. denied, 502 U.S. 914 (1991). In 1996, Appellant filed his first § 2255 motion, arguing for the first time that the trial court erred by failing to instruct the jury that * it must agree unanimously on the predicate offenses that made The Honorable Walter H. Rice, United States District Judge for the up the “continuing series” of drug violations. The district Southern District of Ohio, sitting by designation.

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court overruled his motion, adopting the magistrate judge’s II. Analysis recommendation that Appellant had procedurally defaulted on the instruction issue, regardless of the merits of his argument, In reviewing a district court’s denial of a petition filed and had failed to establish cause and prejudice for the default. under § 2255, a court of appeals reviews findings of fact for (J.A. at 130-137, 151-152.) We affirmed in an order filed on clear error and conclusions of law de novo. See Dunlap v. April 30, 1999. See 1999 WL 282672. United States, 250 F.3d 1001, 1004 (6th Cir.), cert. denied, 534 U.S. 1057 (2001). In Richardson v. United States, 526 U.S. 813, 824 (1999), decided a month after we affirmed the denial of Appellant’s Permission to file a successive § 2255 motion may be first § 2255 motion, the United States Supreme Court granted by a panel of a court of appeals if the movant makes “determined that a jury must unanimously agree not only that a prima facie case that it raises “a new rule . . . .” 28 U.S.C. the defendant committed some ‘continuing series of §§ 2244(b)(2)(A) & 2255; Tyler v. Cain, 533 U.S. 656, 662 violations,’ but also about which specific ‘violations’ make (2001). Before “a panel of the appropriate court of appeals,” up that ‘continuing series.’” Murr v. United States, 200 F.3d a movant need only make a prima facie case that he can 895, 905 (6th Cir. 2000). In Murr, we reviewed Richardson satisfy the above-stated requirement. 28 U.S.C. and held that the Supreme Court announced in that case a new § 2244(b)(3)(C). The court’s decision to certify or not certify rule of substantive statutory law which applied retroactively a motion to file a successive motion is not appealable and for purposes of collaterally attacking a judgment or sentence. cannot be the subject of a petition for rehearing or a writ of 200 F.3d at 905-06. Following Murr, Appellant herein certiorari. Id. §2244(b)(3)(E). Upon review of the merits of moved this Court to authorize the district court to consider a the basis for the successive motion, the district court is successive § 2255 motion, see 28 U.S.C. § 2255 (“A second required to dismiss the motion “unless the applicant shows or successive motion must be certified as provided in section that the claim satisfies the requirements of this section.” Id. 2244 by a panel of the appropriate court of appeals . . . .”), § 2244(b)(4). contending therein that Richardson announced a new rule of constitutional law which should be applied retroactively with The parties are now in agreement that the basis for our regard to his case. A panel of this Court granted the motion decision to certify Appellant’s successive motion for in March of 2000, finding that he had made a prima facie consideration by the district court was not, despite showing that his proposed ground for relief presented a new Appellant’s representations in his motion for certification, rule of constitutional law that was previously unavailable. based on “a new rule of constitutional law” at all. (J.A. at 163.) Following that order, he filed the motion with (Appellant’s Br. at 20-22; Appellee’s Br. at 15, 17 n.2.) the district court that is now the subject of this appeal. In Appellant acknowledges this point because he perceives denying him the relief he sought, the district court adopted the himself to be on the horns of a dilemma, owing in no small report and recommendations of the magistrate judge, who had part to the Supreme Court’s holding in Tyler, 533 U.S. at 662 concluded that any error that did exist was harmless. (J.A. at (decided after this Court’s certification of Appellant’s 197, 219.) This appeal followed. successive motion), that it and only it can say when a newly recognized rule of constitutional law is to apply retroactively for purposes of allowing a sentenced defendant to bring a successive collateral attack on his or her sentence. (Appellant’s Br. at 20-22.) Recognizing further that the No. 01-6424 Paulino v. United States 5 6 Paulino v. United States No. 01-6424

Richardson Court did not state that the statutory clarification under § 2255 is not available at this juncture. 28 U.S.C. it made in that case was to apply retroactively, such that, § 2244(b)(4) states: “A district court shall dismiss any claim under Tyler, the rule announced in Richardson could not be presented in a second or successive application that the court applied to his case retroactively, despite our statement in of appeals has authorized to be filed unless the applicant Murr that it should, Appellant turns about face from the shows that the claim satisfies the requirements of this argument he proffered when he moved this Court to certify section.” Because Appellant not only acknowledges, but his successive motion, and argues that Richardson was not a outright emphasizes, that “the requirements” for his obtaining constitutional case at all, but was, rather, a case about relief in a successive § 2255 motion, to wit: the existence of substantive statutory interpretation. (Id. at 20-21.) a new rule of constitutional law, are not met in this case Supposedly, this argument advances his cause because, of (Appellant’s Br. at 20-22), the district court’s order course, the general rule of statutory interpretation is that novel dismissing his motion will be affirmed. interpretations of substantive statutes always apply retroactively, with the understanding that a statute means Appellant contends in his brief that it makes “no what it says from the date of its enactment. See, e.g., Rivers difference” that “Richardson may not be best seen as v. Roadway Express, 511 U.S. 298, 312-13 (1994); Murr, 200 announcing a new rule of constitutional law” (id. at 22), and F.3d at 905-06. Thus, Appellant argues, Murr remains good his counsel reiterated the contention on several occasions at law after all, insofar as it held that Richardson is to apply oral argument. According to Appellant, the requirement that retroactively, and that, under Richardson, the district court’s “a panel of the appropriate court of appeals” certify a instructions were erroneous as a matter of substantive, not successive motion before it can be entertained by the district constitutional, law.1 court is a procedural rule that serves a gate-keeping function, nothing more. Appellant argues that the rule does not have In light of Richardson, Appellant is correct that the district jurisdictional implications, and, furthermore, that once a court court’s jury instructions were erroneous.2 Nevertheless, relief of appeals has certified a successive motion, its decision should not be reconsidered. Simply put, Appellant is trying to have it both ways: arguing for purposes of having his 1 successive motion certified that Richardson announced a new There would be a constitutional issue if there were an allegation that the jury did not need to be unanimous in its verdict. However, as both the rule of “constitutional law,” while arguing for purposes of Governm ent and App ellant point out in their respective briefs, Richardson getting around Tyler and having Richardson applied was not about whether the jury had to be unanimous in finding a retroactively that Richardson announced only a new rule of continuing criminal enterprise, as no one argued that it did not have to be unanimo us. The issue, rather, was whether, under 21 U.S.C. § 848(c), the jury had to be unanimous with respect to the existence of a continuing series of violations generally, or unanimous with respect to the existence non-constitutional errors. See Tyler, 533 U.S. at 662 (pointing out that a of each predicate violation more specifically. As the majority and new rule of constitutional law is a prerequisite “to obtaining relief in a dissenting opinions in Richardson amply show , the case was one of pure second or successive” mo tion). O bviously, in crafting § 2255 as it is now statutory interpretation. Acco rd Mu rr, 200 F.3d at 906 (“Richardson written, Congress did no t find that new rules of statutory law justified involves the substantive construction of a criminal statute.”). successive motio ns, a fact which no d oub t leaves the merits of many first 2 § 2255 motions to timing and chance: a defend ant who files his first The Court need not, and does not, pass on the implications of the motion prior to the recognition of a new rule of statutory law will not be error because, for the reasons stated in this opinion, 28 U.S.C. § 2255 able to take advantage of such on a successive motion. In crafting § 2255 does not permit a defendant to base a second or successive motion on as it did, C ongress was obviously interested in the principle of finality. No. 01-6424 Paulino v. United States 7 8 Paulino v. United States No. 01-6424

“statutory law.” The Court need not fully explore the merits district court was correct in dismissing his motion. See id. at of Appellant’s “gate-keeping” proposition because it is beside 661 n.3 (pointing out that even after the court of appeals has the point. This Court need not (and does not) find certified a successive motion on the basis that the movant has Appellant’s earlier mischaracterization of Richardson made a prima facie showing that the statutory standard has jurisdictional in nature, or reconsider its decision to certify his been satisfied, dismissal is appropriate in the district court if successive § 2255 motion,3 for it is enough to note that once the merits of the successive motion do not ultimately satisfy his motion came before the district court, his argument for that same statutory standard). relief proved to be without merit. Regardless of Appellant’s burden before this Court to obtain a certificate of Appellant argues in the alternative that his motion should authorization for the district court to entertain his successive be treated as a petition for a writ of habeas corpus, under 28 § 2255 motion, the existence of a new rule of constitutional U.S.C. § 2241. (Appellant’s Br. at 25-29.) This argument law is a “prerequisite[] to obtaining relief in a second or was only vaguely elaborated upon at oral argument, but it is successive motion” before the district court. Tyler, 533 U.S. readily dismissed. 28 U.S.C. § 2255 contains a savings clause at 662.4 Because he cannot satisfy that prerequisite, the which allows an incarcerated individual to apply for a writ of habeas corpus under § 2241 if his remedy under § 2255 appears “inadequate or ineffective to test the legality of the 3 This pane l is satisfied tha t the issue is no t jurisdictional. It will detention.” In theory, the fact that Richardson did not frequently be the case that a successive motion, once certified by the announce a new rule of constitutional law, such that app ropriate appellate co urt, will fail on its merits before the district co urt. Appellant is not entitled to relief under a successive § 2255 Just as a pre-trial, on-the-merits dismissal of a civil comp laint does not motion, might have entitled Appellant to relief under § 2241. imply a lack of subject matter jurisdiction in the first instance, the fact that However, the circuit courts, including our own, have a defendant moving for a successive § 2255 mo tion ultima tely fails to prove the merits of his motion after having first satisfied his prima facie interpreted § 2241 as permitting relief thereunder, in lieu of burden before the co urt of appea ls does not imply a retroactive lack of relief under § 2255, only in those instances where the subje ct matter jurisdiction. individual can make a showing of actual innocence. See 4 Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003). W e note also that our statem ent in Mu rr, that the rule announced in Appellant has made no such showing in this case. Actual Richardson applies retroactively, contin ues to b e sound. As noted , in innocence means factual innocence. See Bousley v. United Tyler, the Supreme Court held that only it can say when a new rule of States, 523 U.S. 614, 623 (1998). Appellant makes no such constitutional law is to app ly retroactively for p urpo ses of raising a successive collateral attack on a sentence or jud gment. Tyler does not argument that he is actually innocent of conducting a CCE, abrogate Mu rr, however, because, as noted herein and acknowledged by and the record, as explored by the magistrate judge and the both parties, Richardson did not announce a new rule of constitutional district court below, amply demonstrates that he would not be law. Therefore, Mu rr’s interpre tation of Richardson is not inconsistent able to do so. with Tyler because Richardson, insofar as it announced a new rule of statutory law, will never be of assistance to a de fendant seeking relief via a successive § 225 5 mo tion, the success of which turns on a new rule of constitutional law. Additiona lly, Mu rr discussed the retroactive application of a new rule application of a new rule of constitutional law in the context of of substantive law for purposes of co llaterally attacking a jury instruction collaterally attacking a sentence or judgment via a second or successive via a first § 2255 motion. This distinction is also crucial, namely bec ause motion. Thus, because (1) Richardson only announced a new rule of a first motion, unlike a successive motion, need not be based on a new statutory law, and , in any eve nt, (2) Mu rr’s interpre tation of Richardson rule of constitutional law. Tyler, of course, discussed the retroactive was made in the context of a first § 225 5 mo tion, Mu rr remains good law. No. 01-6424 Paulino v. United States 9 10 Paulino v. United States No. 01-6424

Appellant’s reliance on Bailey v. United States, 516 U.S. § 2241 because he has not made a showing that he was 137 (1995), is misplaced. In Bailey, the Supreme Court held actually innocent, a requirement that was not discharged by that the term “uses,” as used in 18 U.S.C. § 924(c)(1), which Bailey or its progeny. enhances the sentence of any defendant who “uses” a weapon in the commission of a federal crime of violence or drug Accordingly, even if Appellant’s motion were construed as trafficking, connotes “active employment.” 516 U.S. at 144. a petition for habeas corpus, 28 U.S.C. § 2241, the order of In other words, the Court held that the Government, in the district court denying him relief would have to be prosecuting a defendant under § 924(c)(1), must prove more affirmed. than that the defendant merely possessed a weapon. Id. Because Bailey abrogated the overly broad definition of III. Conclusion “uses” as it had then been interpreted by several of the circuit courts, see 516 U.S. at 142, this Court and other circuit courts The order of the district court is AFFIRMED. subsequently recognized that defendants who had previously been sentenced pursuant to 18 U.S.C. § 924(c)(1), on the basis of the erroneous definition, could attack their sentences collaterally in light of Bailey, see In re Hanserd, 123 F.3d 922, 928 (6th Cir. 1997), and that they could even resort to 28 U.S.C. § 2241 to do so if relief under § 2255 was “inadequate or ineffective.” See id. at 929-30. The shortcoming to Appellant’s reliance on Bailey is that the new rule announced in Richardson does not have the same effect as that announced in Bailey. In the latter, the rule announced had the effect of rendering many previously sentenced defendants “actually innocent” of the sentencing factor on which their sentences had been based, to wit: it demonstrated that they had not “used” a weapon in the manner contemplated by Congress. The effect of Richardson is entirely different. Richardson does not render defendants who were convicted of conducting a CCE “not guilty,” or “actually innocent,” merely because the trial court gave instructions that did not comply with the rule announced therein (as was the case, it appears, at Appellant’s trial); at most, it requires a new trial. Had Appellant not defaulted on this issue at trial and on direct appeal, he might have found the relief he was seeking when he raised it in his first § 2255 motion. Be that as it may, he is not entitled to relief on his successive motion for the reasons stated above, and, returning to the immediate point, he is not entitled to relief under