United States v. Kevin Roberson

194 F.3d 408, 1999 U.S. App. LEXIS 25532, 1999 WL 825544
CourtCourt of Appeals for the Third Circuit
DecidedOctober 14, 1999
Docket97-7309
StatusPublished
Cited by66 cases

This text of 194 F.3d 408 (United States v. Kevin Roberson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kevin Roberson, 194 F.3d 408, 1999 U.S. App. LEXIS 25532, 1999 WL 825544 (3d Cir. 1999).

Opinion

OPINION OF THE COURT

ALITO, Circuit Judge:

The question presented for our review is whether applying AEDPA’s gatekeeping provisions to a 28 U.S.C. § 2255 motion filed after AEDPA’s effective date would have an impermissible retroactive result if the movant filed his first § 2255 motion prior to AEDPA’s enactment. We conclude that the application of AEDPA’s ga-tekeeping provisions to Kevin Roberson’s second § 2255 motion would have no impermissible retroactive result, and thus we hold that amended §§ 2244(b)(3)(A) and 2255 require us to deny Roberson’s request for authorization to proceed with his second motion.

I.

On March 3, 1989, Kevin Roberson pleaded guilty to a felony information charging him with conspiracy to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and aiding or abetting the distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The District Court sentenced Roberson to 30 years of imprisonment on both the conspiracy and the distribution counts and ordered Roberson to serve the terms concurrently. By means of a judgment order, we affirmed Roberson’s conviction on appeal and rejected his contention that the District Court lacked a reasonable factual basis to find by a preponderance of the evidence that his offense involved the distribution of at least 500 grams of cocaine base.

On July 17, 1991, Roberson, acting pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See App. at 10-38. One of his arguments was that the sentencing court “lacked sufficient facts upon which to fairly or reasonably conclude that the defendant was responsible for the distribution of 500 grams or more of ‘crack’, either individually or as a member of the conspiracy.” App. at 24. On October 7, 1991, the District Court denied Roberson’s § 2255 motion, holding that Roberson could not raise this argument in his collateral attack because we previously had rejected the same argument on direct appeal. Appellant’s Br. at Tab 6. Roberson appealed, App. at 183, and we dismissed his appeal on January 31, 1992, for failure to prosecute. App. at 184.

On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996- (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, which, among other things, revised the standards and procedures governing § 2255 petitions. Prior to AEDPA’s enactment, federal courts denied second or successive § 2255 motions if the government could demonstrate that the motion constituted an abuse of the writ. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Courts excused an abuse of the writ only if: (1) the applicant could establish cause and prejudice — i.e., that “some objective factor external to the defense impeded counsel’s efforts” to raise the claim earlier and that “actual prejudice resultfed] from the errors of which he complain[ed,]” id. at 493-94, 111 S.Ct. 1454 (internal quotation marks and citations omitted); or (2) the applicant could demonstrate that “a fundamental miscarriage of justice would result from a failure to entertain the claim,” id.

*411 AEDPA, however, replaced the abuse-of-the writ doctrine articulated in McCles-key. Under AEDPA’s new “gatekeeping” provisions, an applicant seeking to file a second or successive . § 2255 motion must obtain from “the appropriate court of appeals ... an order authorizing the district court to consider the application,” 28 U.S.C.A. §§ 2244(b)(3)(A), 2255 (West Supp.1999), and a court of appeals may grant such an order only if the motion contains:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to eases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C.A. § 2255.

On May 28, 1997, Roberson filed a second § 2255 motion in which he raised two grounds for relief. First, he claimed that the sentencing court erred by applying United States Sentencing Guidelines (“U.S.S.G.”) § 2Dl.l(c)’s enhancement for cocaine base because the government had failed to prove by a preponderance of the evidence that the controlled substance involved in his offense was “crack,” as opposed to some other form of cocaine base. App. at 9. Second, he claimed that his counsel at sentencing and on direct appeal was constitutionally ineffective for failing to raise this argument. Id.

The District Court dismissed Roberson’s petition, holding that it did not have authority under AEDPA to entertain Roberson’s second § 2255 motion unless we issued an order authorizing it to do so. Appellant’s Br. at Tab 4. Roberson appealed. As we stated above, AEDPA’s amendments require § 2255 movants to file a motion in the appropriate court of appeals for an order authorizing the district court to consider a second or successive application. See 28 U.S.C.A. § 2244(b)(3)(A). Recognizing that the application of AED-PA’s new gatekeeping provisions to Roberson’s second § 2255 motion might be im-permissibly retroactive, we requested that the parties address the following question: whether applying AEDPA’s gatekeeping provisions to a second § 2255 motion, which the applicant filed after AEDPA’s effective date, would produce an impermissible retroactive result if the applicant filed his first § 2255 motion before AEDPA’s enactment. 1

II.

We recently addressed a similar retroactivity question in In re Minarik, 166 F.3d 591 (3d Cir.1999). In that case, the prisoner filed his first federal habeas petition under 28 U.S.C. § 2254 prior to AEDPA’s passage, but filed his second § 2254 motion after AEDPA’s effective date. We held that the application of AEDPA’s gatekeeping provisions to Minarik’s second petition had no impermissible retroactive effect. Id. at 608. In reaching this result, we were guided by two Supreme Court decisions: Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Lindh v. Murphy,

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Cite This Page — Counsel Stack

Bluebook (online)
194 F.3d 408, 1999 U.S. App. LEXIS 25532, 1999 WL 825544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kevin-roberson-ca3-1999.