Jackson v. Maine

ORDER DENYING CERTIFICATE OF APPEALABILITY

WOODCOCK, District Judge.

On January 6, 2004, this Court issued an order accepting the Recommended Decision of the Magistrate Judge to deny the Petitioner’s 28 U.S.C. § 2254 petition (Docket # 10). The Petitioner now seeks a certificate of appealability under § 2254(c)(3) because, he claims, “the Ap-prendi doctrine may yet be applied retroactively,”

(See

Pet.’s Mot. at 5 (Docket # 13)). For the reasons discussed below, the Petitioner has not made a substantial showing of the denial of a constitutional right. Therefore, the Motion for a Certificate of Appealability is DENTED.

Background

The facts in this matter have been well laid out in Magistrate Judge Kravchuk’s Recommended Decision and do not bear repetition. The Petitioner’s current argument relies primarily on the United States Supreme Court’s December 1, 2003 grant of certiorari in

Schriro v. Summerlin,

— U.S. -, 124 S.Ct. 833 , 157 L.Ed.2d 692 (granting review of

Summerlin v. Stewart,

341 F.3d 1082 (9th Cir.2003)). Since the Supreme Court granted certiorari in

Sum-merlin

after the Magistrate Judge issued her Recommended Decision, this Court will address Petitioner’s argument to the extent it is based on the action of the Supreme Court in

Summerlin.

To begin, the Petitioner concedes the First Circuit, in

Sepulveda v. United States,

330 F.3d 55, 63 (1st Cir.2003), ruled the

Apprendi

doctrine does not apply retroactively to cases on collateral review.

(See

Pet.’s Mot. at 6 (Docket # 13)) (“The Court of Appeals for this circuit ... held ... that the ruling in

[Apprendi

] cannon be applied retroactively to collateral review of older convictions”) (emphasis in original). Undaunted, he points to

Sum-

*199

merlin,

the Ninth Circuit case now before the Supreme Court. In

Summerlin,

the Ninth Circuit applied

Ring v. Arizona,

536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), retroactively to vacate a state court decision to impose the death penalty. The

Summerlin

court reasoned that because

Ring

announced a substantive, not procedural, rule,

Ring

should be applied retroactively. 34 F.3d at 1102. The Petitioner argues that (1)

“Ring

is based four-square on

Apprendi

”

(See

Pet.’s Mot. at 2 (Docket # 13)); (2)

Summerlin

applied

Ring

retroactively; and (3) the Supreme Court granted certiorari in

Summerlin;

therefore,

Apprendi

“may yet be applied retroactively.”

(See

Pet-’s Mot. at 5 (Docket # 13)). This Court does not share the Petitioner’s view that the Supreme Court’s grant of certiorari in

Summerlin

signals a sea change in the judicial attitude toward retroactive application of

Apprendi

in cases on collateral review.

Discussion

Though the Supreme Court has not ruled on the retroactive application of

Ap-prendi,

the case law currently available on the issue could not be clearer. The First Circuit expressed its decision in

Sepulveda

using unusually strong terms:

We hold,

without serious question,

that

Apprendi

prescribes a new rule of criminal procedure, and that

Teague

does not permit inferior federal courts to apply the

Apprendi

rule retroactively to cases on collateral review.

Sepulveda,

330 F.3d at 63 (emphasis supplied). As the Magistrate Judge indicated, all ten other courts of appeal, including the Ninth Circuit, have reached the same conclusion.

United States v. Swinton,

333 F.3d 481 (3d Cir.2003);

Goode v. United States,

305 F.3d 378 (6th Cir.2002);

Coleman v. United States,

329 F.3d 77 (2d Cir.2003);

United States v. Brown,

305 F.3d 304 (5th Cir.2002);

Curtis v. United States,

294 F.3d 841 (7th Cir.2002);

United States v. Mora,

293 F.3d 1213 (10th Cir.2002);

United States v. Sanchez-Cervantes,

282 F.3d 664 (9th Cir.2002);

McCoy v. United States,

266 F.3d 1245 (11th Cir.2001);

United States v. Moss,

252 F.3d 993 (8th Cir.2001);

United States v. Sanders,

247 F.3d 139 (4th Cir.2001). The Petitioner does not contest this point; instead, he attempts to orchestrate an end-around of the

Apprendi

case law by directing this Court to the Supreme Court’s grant of certiorari in

Summerlin.

However, in

Summerlin,

the Ninth Circuit carefully distinguished its ruling on retroactive application of

Ring

from its ruling on retroactive application of

Apprendi.

341 F.3d at 1121 (distinguishing between

Ring

as substantive and

Appren-di

as procedural). Further, this Court can attach no significance to the Supreme Court’s grant or denial of certiorari in any case.

Calhoun v. J.I. Case Co.,

150 F.Supp. 189 (D.C.Ohio 1957) (citing

Sheppard v. Ohio,

352 U.S. 910 , 77 S.Ct. 118 , 1 L.Ed.2d 119 (1956));

see also Allison v. Indus. Claim Appeals Office of Colo.,

884 P.2d 1113 (Colo.1994);

Heaton v. Second Injury Fund (Employer’s Reinsurance Fund),

796 P.2d 676 (Utah 1990) (citing Utah R.App. P. 51(a)). Moreover, the scope of the Supreme Court’s grant in this case does not guarantee a review of the retroactive application of

Apprendi,

1

much less the result the Petitioner urges.

*200

Conclusion

A certificate of appealability may issue under 28 U.S.C. § 2253 (c) if the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2)-(3): Fed. R.App. P. 22(b). Because it is the opinion of this Court that no substantial question would be presented for decision on appeal, the certificate of appealability is DENIED.

SO ORDERED.

1

. The Supreme Court limited its grant of cer-tiorari to Questions 1 and 2 presented by the petition for certiorari.

Schriro v. Summerlin,

2003 WL 22429229 , *i (September 23, 2003). Speculating whether the Supreme Court will even consider the

Apprendi

issue illustrates the danger of reading the grant or denial of certiorari like tea leaves.

See

16B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure

§ 4004.1 (2d ed.2003).