In Re: Fashina

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 2007 Decided May 11, 2007

No. 06-3002

IN RE: OLUTOYIN O. FASHINA

PETITIONER

On Petition for Leave to File Second

or Successive § 2255 Habeas Petition

(No. 94cr00025-03)

Peter S. Spivack, appointed by the court, argued the cause

for petitioner. With him on the briefs was Christopher T.

Handman.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for respondent. With her on the brief were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S.

Attorney.

Before: GINSBURG, Chief Judge, and TATEL, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Convicted of various drug-related

offenses in 1994, Olutoyin Fashina petitions for leave to file a

successive § 2255 habeas petition in which he contends his

sentence was unconstitutional in light of United States v.

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Booker, 543 U.S. 220 (2005). Fashina filed his first habeas

petition prior to the passage of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), and claims this request for

leave therefore should be evaluated under the pre-AEDPA

“cause and prejudice” standard; under the AEDPA, we may

entertain a second or successive habeas petition only if it is

based upon “a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court.”

We hold Booker does not apply retroactively. As a result,

Fashina is not entitled to another habeas proceeding under the

AEDPA and, more to his point, neither can he show the “cause

and prejudice” required under pre-AEDPA law. We accordingly

deny his petition.

I. Background

In 1994 Fashina was indicted for (1) conspiracy to distribute

and possession with intent to distribute 100 grams or more of

heroin from October 1991 to March 1993, (2) distribution of

over 100 grams of heroin on November 5, 1992, and (3)

distribution and possession with intent to distribute over 100

grams of heroin on January 7, 1993. A jury acquitted him of the

November 5 distribution charge and convicted him on the other

counts. The jury made no finding as to the amount of drugs

involved.

At sentencing the district court adopted the factual findings

and the sentence recommended in the presentence investigation

report, see United States v. Badru, 97 F.3d 1471, 1476-78 (D.C.

Cir. 1996), which attributed to Fashina 14,007 grams of heroin,

some of which had never been in his possession. Fashina argued

unsuccessfully that the jury must have meant to attribute to him

only the heroin he possessed on January 7, 1993, and his

sentencing range under the Guidelines should be

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correspondingly lower. On appeal we affirmed his conviction

and the sentence. Id. at 1479.

In 1995 Fashina filed a habeas petition claiming ineffective

assistance of counsel, which the district court denied; we

affirmed that judgment as well. In 2006 — after enactment of

the AEDPA — Fashina sought leave to file a successive habeas

petition, this time alleging, among other claims, that he was

sentenced in violation of Booker. We ordered briefing on the

Booker claim and denied leave with respect to the other claims.

II. Analysis

Under the AEDPA, an appeals court may grant leave to file

a second or successive motion for a writ of habeas corpus only

if the motion is based upon either:

(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 cases on collateral review by the Supreme Court,

that was previously unavailable.

28 U.S.C. § 2255. Fashina concedes he meets neither of these

standards. See In re Zambrano, 433 F.3d 886, 888 (D.C. Cir.

2006) (noting Supreme Court has not made Booker retroactive

to cases on collateral review). Instead he maintains that because

his motion meets the standards in effect before enactment of the

AEDPA, that statute may not be applied retroactively to his

case. Unless the Congress has expressly made a statute

retroactive, the courts do not apply it retroactively if doing so

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“would impair rights a party possessed when he acted, increase

a party’s liability for past conduct, or impose new duties with

respect to transactions already completed.” Landgraf v. USI

Film Products, 511 U.S. 244, 280 (1994). The Government

responds that Fashina cannot meet the pre-AEDPA standard and

the AEDPA therefore may be applied without prejudice to him.

See United States v. Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998).

Pre-AEDPA, if a prisoner raised a claim for the first time in

a second or successive habeas petition and the Government,

based upon his record of prior petitions, alleged he was abusing

the writ, we would entertain the petition only if the prisoner

showed “cause for failing to raise [the claim earlier] and

prejudice therefrom.” McCleskey v. Zant, 499 U.S. 467, 494

(1991). Fashina contends he had “cause” for not raising his

Booker claim in his initial petition because Booker had not yet

been decided, and he suffers “prejudice therefrom” because

application of Booker to his case would reduce his sentence.

The Government counters that Fashina cannot show cause

because he could have raised the issue when he filed his first

petition, although the likelihood of success was then small, see

Bousley v. United States, 523 U.S. 614, 622 (1998), and he

cannot show prejudice because Booker is not retroactive.

We conclude Fashina cannot show “prejudice” because

Booker is not retroactive and therefore we need not consider

whether he has shown “cause.” We recognize that prudence

ordinarily dicates that we tackle nonconstitutional issues first, so

that, if their resolution is dispositive, we need not reach the

constitutional issue. See, e.g., Lambrix v. Singletary, 520 U.S.

518, 524 (1997); Lyng v. Northwest Indian Cemetery Protective

Ass’n, 485 U.S. 439, 445 (1988). But the principle of avoidance

is not an absolute; a court may invert the sequence in

appropriate circumstances. See, e.g., Saucier v. Katz, 533 U.S.

194, 201 (2001) (qualified immunity analysis requires court first

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to determine whether constitutional right was violated, and only

if so whether right was clearly established); Lockhart v.

Fretwell, 506 U.S. 364, 369 n.2 (1993) (“Harmless-error

analysis is triggered only after the reviewing court discovers that

an error [of constitutional law] has been committed”). In

Lambrix itself the Supreme Court considered whether its

decision in Espinosa v. Florida, 505 U.S. 1079 (1992), should

be made retroactive, which required a “detailed analysis of

federal constitutional law,” although it could have remanded the

case to the court of appeals to consider whether the claim was

procedurally barred. 520 U.S. at 524. In doing so, the Court

acknowledged that “[c]onstitutional issues are generally to be

avoided,” id., but that did not mean

the procedural-bar issue must invariably be resolved

first; only that it ordinarily should be. Judicial

economy might counsel giving the [retroactivity]

question priority, for example, if it were easily

resolvable against the habeas petitioner, whereas the

procedural-bar issue involved complicated issues of

state law.

Id. at 525. We believe it is likewise appropriate in the present

circumstances to address retroactivity first. Similarly, in McCoy

v. United States, 266 F.3d 1245, 1255-56 (11th Cir. 2001), the

Eleventh Circuit, in the interest of judicial economy, first

considered the possible retroactivity of Apprendi v. New Jersey,

530 U.S. 466 (2000), rather than whether the petitioner was

procedurally barred for failing to raise the Apprendi argument

on direct appeal, because the retroactivity issue was then being

raised in a plethora of habeas motions in that circuit.

In Booker the Supreme Court held the United States

Sentencing Guidelines, if mandatory, would violate a

defendant’s Sixth Amendment right to have all facts necessary

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to the imposition of a sentence found by a jury applying the

reasonable doubt standard; the Court therefore construed the

Guidelines as advisory. 543 U.S. at 244-45. The Government

concedes that, if Booker has retroactive effect, then Fashina has

shown prejudice because the district court increased his sentence

based upon its understanding the Guidelines were mandatory

and upon facts not found beyond a reasonable doubt by the jury.

The question before us, therefore, is whether Booker is indeed

to be applied retroactively. As established in Teague v. Lane,

489 U.S. 288 (1989), a decision announcing a new rule of law

applicable to criminal cases is retroactive only if the rule is (1)

substantive or (2) a “watershed” procedural rule. See Whorton

v. Bockting, 127 S. Ct. 1173, 1180-81 (2007); Schriro v.

Summerlin, 542 U.S. 348, 351-53 (2004). Fashina

acknowledges that Booker announced a new rule, and we hold

that neither exception to the general rule of nonretroactivity

applies to make Booker retroactive.

A. Substantive Rule?

A new substantive rule

alters the range of conduct or the class of persons that

the law punishes. In contrast, rules that regulate only

the manner of determining the defendant’s culpability

are procedural. ... A decision that modifies the

elements of an offense is normally substantive rather

than procedural.

Summerlin, 542 U.S. at 353-54 (citations omitted). Fashina

contends Booker is substantive because it made “the provisions

of the Sentencing Guidelines that alter the applicable sentencing

range based on the finding of a particular fact an element of the

underlying crime that must be proved beyond a reasonable doubt

to a jury.” See Jones v. United States, 526 U.S. 227, 239-40

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(1999) (reading provision enhancing maximum sentence in

federal carjacking statute as element of crime, in part to avoid

constitutional concern).

Fashina misapprehends the significance of Booker,

however. If the Sentencing Guidelines were, as he claims,

incorporated into the criminal code, then the Guidelines would

be mandatory — the very opposite of what Booker holds.

Instead, Booker merely requires that the sentencing judge

consider the Guidelines. 543 U.S. at 261; see also United States

v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006). In order to

obtain a conviction and a particular sentence the Government

need not prove anything after Booker that it did not have to

prove before; therefore, Booker does not “alter[] the range of

conduct ... the law punishes,” Summerlin, 542 U.S. at 353, and

is not a substantive rule. See, e.g., McReynolds v. United States,

397 F.3d 479, 481 (7th Cir. 2005).

In addition, we note that even had the Guidelines remained

mandatory after Booker, it would have meant only that certain

facts previously found by the judge based upon a preponderance

of the evidence would have to be found by the jury beyond a

reasonable doubt. This would change “only the manner of

determining the defendant’s culpability” and the rule in Booker

would still therefore be a procedural, not a substantive, rule.

Summerlin, 542 U.S. at 353; see also United States v. Gentry,

432 F.3d 600, 603 (5th Cir. 2005); McReynolds, 397 F.3d at

480-81.

B. Watershed Procedural Rule?

A new procedural rule is a “watershed rule[] of criminal

procedure,” and therefore retroactive, only if it “implicat[es] the

fundamental fairness and accuracy of the criminal proceeding.”

Summerlin, 542 U.S. at 352 (quoting Saffle v. Parks, 494 U.S.

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484, 495 (1990)) (internal quotation marks omitted).

“Infringement of the rule must ‘seriously diminish the likelihood

of obtaining an accurate conviction,’ and the rule must ‘alter our

understanding of the bedrock procedural elements’ essential to

the fairness of a proceeding.” Tyler v. Cain, 533 U.S. 656, 665

(2001) (quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990))

(other internal quotation marks omitted). Just recently the

Supreme Court explained it is not sufficient for a new rule to be

based upon a “bedrock” right; rather, the new rule “must itself

constitute a previously unrecognized bedrock procedural

element.” Whorton, 127 S. Ct. at 1183. Hence it is not

surprising that the class of “watershed” procedural rules is

“extremely narrow”; so narrow, indeed, “it is ‘unlikely’ that any

such rules ‘ha[ve] yet to emerge.’” Id. at 1181 (quoting

Summerlin, 542 U.S. at 352) (alteration in original) (other

internal quotation marks omitted); in fact, the Supreme Court

has not identified a single watershed procedural rule in the 18

years since it announced the doctrine, id. at 1182, though it has

suggested the rule in Gideon v. Wainwright, 373 U.S. 335

(1963), requiring states to offer counsel to indigent criminal

defendants, might have qualified as sufficiently “sweeping and

fundamental” had the watershed standard then been in place.

Beard v. Banks, 542 U.S. 406, 417-18 (2004).

Fashina contends Booker is on par with Gideon for two

reasons: Booker implicates the right to a jury, which is

“fundamental to our system of criminal procedure,” Summerlin,

542 U.S. at 358; see also Booker, 543 U.S. at 238-39 (principles

behind jury trial “have their genesis in the ideals our

constitutional tradition assimilated from the common law”); and

Booker “alters our understanding” of the scope of the reasonable

doubt standard, a “bedrock procedural element” that implicates

the accuracy of criminal proceedings. The Government

correctly notes the Supreme Court rejected the former point in

Summerlin when it said the “evidence is simply too equivocal”

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to conclude that having judges rather than juries find facts

seriously diminishes the accuracy of verdicts. 542 U.S. at 356;

see also, e.g., Cirilo-Muñoz v. United States, 404 F.3d 527, 533

(1st Cir. 2005) (“In our view, the use of judge-made findings at

sentencing does not undermine ‘accuracy’ (in terms of

substantially different outcomes) .... Such judge-made findings

have been the conventional practice throughout our nation’s

history.”)

As for Fashina’s second point, we share his premise about

the foundational role of the reasonable doubt standard of proof

in criminal cases. As the Supreme Court said In re Winship, 397

U.S. 358, 363 (1970) (quoting Coffin v. United States, 156 U.S.

432, 453 (1895)), which held a juvenile is entitled to be judged

by the reasonable doubt standard when charged with an act that

would constitute a crime if committed by an adult:

The reasonable-doubt standard plays a vital role in the

American scheme of criminal procedure. It is a prime

instrument for reducing the risk of convictions resting

on factual error. The standard provides concrete

substance for the presumption of innocence — that

bedrock “axiomatic and elementary” principle whose

“enforcement lies at the foundation of the

administration of our criminal law.”

We also note that Winship was made retroactive, albeit prior to

the Court’s setting the current standard for retroactivity in

Teague. See Ivan V. v. City of New York, 407 U.S. 203, 204-05

(1972).

Important as the reasonable doubt standard no doubt is, our

task is to determine whether Booker works so “sweeping and

fundamental” a change in its application as to constitute a

watershed rule. As noted above, Booker alchemized mandatory

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sentencing guidelines into advisory sentencing guidelines, which

gave the judge greater discretion to depart from the sentencing

range indicated by the Guidelines. See, e.g., Cunningham v.

California, 127 S. Ct. 856, 867 (2007) (“Under the system

described in Justice Breyer’s opinion for the Court in Booker,

judges [are] no longer ... tied to the sentencing range indicated

in the Guidelines”). Both before and after Booker, however,

some factors relevant to sentencing are determined by the court

applying the “preponderance of the evidence” standard, not

proof beyond a reasonable doubt. See Dorcely, 454 F.3d at 371-

72. In view of the continued importance of the Guidelines in

sentencing after Booker, describing the pre-Booker “mandatory

[G]uidelines as generating serious inaccuracy or fundamental

unfairness would not be easy.” Cirilo-Muñoz, 404 F.3d at 533;

see also Lloyd v. United States, 407 F.3d 608, 615 (3d Cir.

2005); Gentry, 432 F.3d at 605. Fashina merely quibbles with

this point when he argues that the regime of advisory Guidelines

improves accuracy by giving the judge discretion to rely solely

upon facts found by the jury beyond a reasonable doubt. To say

the mandatory regime implicated “fundamental fairness” and

“seriously diminished” accuracy relative to the advisory scheme

would be to drain all meaning from the words “fundamental”

and “seriously.” Cf. Whorton, 127 S. Ct. at 1183-84;

Summerlin, 542 U.S. at 355-56.

Fashina suggests this analysis proceeds from a

misunderstanding of Booker. He reads Booker as having two

parts; first, a rule, to wit, facts necessary to the imposition of a

sentence under mandatory federal Sentencing Guidelines must

be found by a jury beyond a reasonable doubt; and, second, a

remedy, to wit, the Guidelines are not mandatory but merely

advisory. See Booker, 543 U.S. at 245 (question of Guidelines

severability “concerns the remedy”). On this reading it is the

“rule” in Booker that, by broadening application of the

reasonable doubt standard, implicates accuracy and fundamental

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fairness, and therefore, pursuant to Teague, is retroactive; the

“remedy” is irrelevant.

In order to determine whether the rule in Booker is one

“without which the likelihood of an accurate [verdict] is

seriously diminished,” Teague, 489 U.S. at 313 (plurality

opinion), we must compare the pre-Booker world to the present

world in which Booker is the law. Fashina implicitly assumes

we should compare the pre-Booker regime with the purely

notional state in which the rule in Booker obtains but the remedy

prescribed therein does not, so the Guidelines are mandatory and

all facts relevant to sentencing must be proven beyond a

reasonable doubt. We fail to see why we should base our

analysis upon a hypothetical regime, one the Supreme Court

considered but rejected in Booker, see 543 U.S. at 249-58, and

Fashina gives us no reason to think otherwise. We therefore

conclude, as have all our sister circuits, Booker does not meet

the criteria for retroactive application.*

III. Conclusion

In sum, Booker announced neither a substantive rule nor a

*

See Cirilo-Muñoz, 404 F.3d at 532-33; Guzman v. United States, 404

F.3d 139, 141-44 (2d Cir. 2005), cert. denied, 126 S. Ct. 731 (2005);

Lloyd, 407 F.3d at 613-16, cert. denied, 126 S. Ct. 288 (2005); United

States v. Morris, 429 F.3d 65, 66-67 (4th Cir. 2005), cert. denied, 127

S. Ct. 121 (2006); Gentry, 432 F.3d at 602-05; Humphress v. United

States, 398 F.3d 855, 860-63 (6th Cir. 2005), cert. denied, 126 S. Ct.

199 (2005); McReynolds, 397 F.3d at 481, cert. denied, 125 S. Ct.

2559 (2005); Never Misses A Shot v. United States, 413 F.3d 781,

783-84 (8th Cir. 2005); United States v. Cruz, 423 F.3d 1119, 1121

(9th Cir. 2005), cert. denied, 126 S. Ct. 1181 (2006); United States v.

Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); Varela v. United

States, 400 F.3d 864, 867-68 (11th Cir. 2005), cert. denied, 126 S. Ct.

312 (2005).

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watershed rule of procedure and therefore is not retroactive; it

follows that Fashina would not have been successful if, in his

first habeas petition, he had claimed a Booker error — namely,

that he was sentenced based upon facts not found by a jury

beyond a reasonable doubt while the Guidelines were

mandatory. Fashina therefore both fails to meet the pre-AEDPA

requirements for relief from his procedural default and fails to

show the AEDPA would be impermissibly retroactive as applied

to him. Nor, as Fashina concedes, does he meet the

requirements under the AEDPA for permission to file a

successive § 2255 petition; his petition for leave to file is

therefore

Denied.