Petition for Writ of Certiorari — Soto v. United States (No. 07-327)

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a premne Court U.S.

07- 327SEP 6 - 2007

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

HECTOR SOTO,

Petitioner,

— Woo

UNITED STATES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Paul Schoeman

Counsel of Record

Keith M. Donoghue

Darren LaVerne

KRAMER LEVIN NAFTALIS

& FRANKEL LLP

1177 Avenue of the Americas

New York, New York 10036

(212) 715-9100

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Does the retroactivity test applied in habeas corpus

chalienges to state judgments of conviction, as set forth in

Teague v. Lane, 489 U.S. 288 (1989), limit the availability

of relief on a motion under 28 U.S.C. § 2255 asserting that

a federal sentence must be corrected due to error under

United States v. Booker, 543 U.S. 220 (2005)?

2. If Teague is applicable, did Booker announce a

“watershed rule” of criminal procedure in holding that

sentences imposed under the mandatory United States

Sentencing Guidelines are constitutionally infirm unless

every fact essential to sentence was proved beyond a

reasonable doubt?

TABLE OF CONTENTS

TA Oe Ce aa arertcnsdeertcvcenscevevercesecees i

TABLE OF AUT Tiree 2 ie cesetrcstetehetessstsieversevseszevecceceses ill

FUT FF vocrske ast ilicnetitetcesersveecocceesoeees ]

NOTIFICATION OF SOLICITOR GENERAL...................... ]

CONSTITUTIONAL AND STATUTORY PROVISIONS ... |

I. TEAGUE’S NONRETROACTIVITY PRINCIPLE

DOES NOT LIMIT THE AVAILABILITY OF RELIEF

UNDER § 2255 ovcckcsrceee eee nadeeraviewsvnceverescesens 6

A. Section 2255 Motions Do Not Sound in Habeas

Corpus and Accordingly are Outside the Scope of

1. The Statutory Text, as Underscored by Its

Legislative History and Remedial Structure,

Distinguishes § 2255 from Habeas Corpus............ 8

2. Circuit Court Authority Holding Teague

Applicable Under § 2255 Is Not Persuasive ....... 1]

B. The Range of Interests Properly Informing

Retroactivity Analysis Militates Against

Extension of Teague’s Nonretroactivity Principle

to § 2255 Motions, Particularly When Booker

Err 1a FI a atilhtca ee ceveevenencenexeseee 13

1. Proceedings Under § 2255 Do Not Implicate

Teague’s Core Federalism Concerns .................. 13

2. The Interest in Finality Is Not Pronounced in

the § 2255 Context, Particularly When

Defendants Assert Sentencing Error Under

IT ivicchisricciiseisiepienpinascaunsgenamaaraie ea ‘aes

3. Teague Undermines a Sound Conception of

the Judicial Role and Squanders Judiciai

III iciccusvseccssinisaininiinsiaitciealtiesieeubaicseiaabuiaan 19

Il. BOOKER ANNOUNCED A ‘WATERSHED’ RULE

OF CRIMINAL PROCEDURE WITHIN’ THE

SE UETEEE SAE BAGIEIUD séencirsscsivitvupevrmnmbsncnattinutconsuinilaiia 21

A. The Failure to Find Sentencing Facts By Proof

Beyond a Reasonable Doubt Substantially

Diminishes Accuracy and Neglects a Bedrock

I OE FG inintieinstllceenscvescctertatincactianiocascetin 22

B. Circuit Court Decisions Holding Booker Not To

Be Retroactive Rest Upon _ Erroneous

FD scossiintinstictnstivcvitansiniienaintiiertiapintiiaigen aati iat 25

CUA INT rcyilsidosecettroniincsitesadameenlsienlepesigiieblaaiebidimetmadaal 28

ill

TABLE OF AUTHORITIES

CASES

Adams v. Aiken,

BE Fe Te CO Cr, TID vcccccicroscersecensscccoreevstsioons 24

American Trucking Ass'ns v. Smith,

3 ICSC apa ve ie mee eeR A OO 19

Arizona v. Fulminante,

I oon rtsiceinsicateinsbtesinibbednnsiipuandanibia 24

Beard v. Banks,

nis cesinlcbtntoesadail 6, 14, 20

Blakely v. Washington,

i Ie I cicistcisiesccecsccensssenennvniuanonmsentes 3, 4, 21

In re Bonner,

ee I ia ccncsiecs ncintannccoiiedantcbchibemiinbabietiad 10

Bousley v. United States,

I ic teatinaaindadinniaasoeea 6,7

Burton v. Stewart,

og Ee Re Fs 5 SERRE Oe ROBO e lr ere era passim

Butler v. McKellar,

RCIA erm eae Ce one Re am 15

Cage v. Louisiana,

I ale 24

Calderon v. Thompson,

Sai sccinansbdiapemoninemeonediake 14

Carey v. Musladin,

Be ee ID ilesicvcecciucencisecnsnicsenienbsntedchemeens

Caspari v. Bohlen,

SN Se NE ITD sichashinpientiosnacasnioxiserttinontveseiniens 20

Coffin v. United States,

a RE os juiscunsaveradiahabinsnginctaseesinennsetal 23

Cunningham v. California,

eT Wh as ETD chiieeniicseseccctecrcatecns 17, 25, 27, 28

Danforth v. Minnesota,

Sup. Ct. Case No. 06-8273

(cert. granted Mary 21, 2007) .2.....:scccecresscssssecorssnsesess 7

Danforth v. State,

718 N.W.2d 451 (Minn. 2006).............csscccsscsssrrceesees 7

Daniels v. United States,

Se BO FAO EERE, 2001 J vrcccessensevesrcesonessasseseve 11

Dargan v. Commonwealth,

500 S.E.2d 228 (Va. Ct. App. 1998) ...............ccccsees 17

Dodd v. United States,

PEs ED vticsasersasrsvccivesnenintdcsnavensondvie eee

Francis v. Franklin,

A iscncctedicadcaciiedbanssciioricencnbentenlal 24

Gaines v. Kelly,

Fe eG CP sa cecisivcnesesecseroderatévatinszves 24

Gilberti v. United States,

BF Fa le PE cshccceresesintsnservonevesecianatects 11

Gomez v. Jaimet,

SFE ET POT, BOS vtcccecnccertocccuoressencesatents 16

Graham v. Collins,

| en ean ERT: 22

Guzman v. United States,

404 F.3d 139 (2d Cir.), cert. denied,

yb Rs Ay | fo. | rer as bial 4,5, 18, 27

Hall v. Kelso,

BF2 F260 1541 (1 1p Cir. 899G).......cccosecscccssconseccosesss 24

Hankerson v. North Carolina,

stirs sennneremamnioansnnnsiio’ 22, 23

Herrera v. Collins,

Se I scene cteciiattinntstnaiippasinbsinbaiacbions 10

Humphress v. United States,

398 F.3d 855 (6th Cir.), cert. denied,

ITD ciiisassavenectiereveiuneseccsorensssecesnvviotees 25

Humphrey v. Cain,

Bo Bo te A | re 24

Ivan V. v. City of New York,

4 SEE em sees 23

Lambrix v. Singletary,

| ee 20

Lanier v. United States,

pe mE CN Ty | | ee 24

Linkletter v. Walker,

aE 19

Lloyd v. United States,

407 F.3d 608 (3d Cir.), cert. denied,

a I ca cieritninnisisooevnssnvicsemininceennesusin 26

Mackey v. United States,

a Bic csnescousinsiineasrveeeniiouebolvdannenio 19

Marbury v. Madison,

Bn Oe SED OE CRUE Pacvevcivcecssevececcetencorssberes 19

Massaro v. United States,

TE iin iicisiicrrnssieaheciiitinniddainindsicisadaisiitiin

McReynolds v. United States,

397 F.3d 479 (7th Cir.), cert. denied,

ne ae UE ichcsesiceninsrinicipiaentntcitditaeniniiniiinca

In re Medley,

es I INE ssc scikonianhivgeioaiieiainetiaii

Moody v. State,

1G SD. W236 SUZ CEG. 2005) nn scccecscreceececevasesseseesvors

Moore v. Anderson,

Be Ee Fn le Be ciecthcernitiictinecicintnnanenasinns

Mullaney v. Wilbur,

Be I TE cos ciniacbhihienianainieincseiniganebieonalind

Murr v. United States,

poe Ga Ee Senne anne

Nutter v. White,

39 F.3d 1154 (11th Cir. 1994)... ecsscssseceeees

Penry v. Lynaugh,

Se Fy SI ieiciiliniccessesisainisdtisenisecbessicaomnusonibininnnint

Richardson v. United States,

ee Se I icrsinnicasenisoviicanncssticsstentonionmvediiinialies

Ring v. Arizona,

ee ae ietirctieisiasiciniiiniieciancsiaeiliietatel

Ross v. United States,

Fe PTE C8 UO GAL, DEP reierectivindentncsessccsonsenniii

Rumsfeld v. Padilla, _

Se A IN CIID cniircisieceessroctvhtedasnentnonncnnnesiinens 10,

Saffle v. Parks,

494 U.S. 484 (1990)... ee. saiiestesabadh asaisaiaientaie

Vil

Sanchez-Llamas v. Cn,

a slcbeueedmncontel 16

Sandstrom v. Montana,

a eotiphecaiioniies 24

Santana-Madera v. United States,

ee Be BE isweitceratenesatnerstevinincssidacis 24

Saucier v. Katz,

I i. uid pessnsiiviasancebelauen’ 20

Schriro v. Summerlin,

Re Mie UE IO sch iccncibsscnnsncnsvacnintsecendsinnnsaneen 25, 26

Scott v. Harris,

es Be I Ba ccticndtiatindcriisancnbveesnpinionviensiiis 20

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp.,

Be ee We CB iiccnctctivccsatiiniihineitaiscnanannnitaines 20, 21

Solem v. Helm,

I i cciintiinsctsinncpabanbanbedebencbenebnes 10

State v. Murray,

Be se as I sasicnicsicntncectsuncncdssnorannncdansvinne 17

Steel Co. v. Citizens for a Better Environment,

II ace ci inenselioumensananeiolobinebinenns 20

Stringer v. Black,

I I i cisatnsccsichsbsipnisiusbndiaidandenienonte 20

Sullivan v. Louisiana,

~ Eee S| a aes 24, 26

Teague v. Lane,

i | En ne passim

Tillman v. Cook,

BES Se FUEGO Ch, ZOO cscccencicscsiccrecssecoverecees 24

Tyler v. Cain,

pcg OR Se 22, 24, 25

United States v. Ameline,

409 F.3d 1073 (9th Cir. 2005)...........cccrseseeees 17, 18, 23

United States v. Antonakopoulos,

399 F.3d GS (Ist Cir, 2005) .....ccerrssccsecescerseeseseess 18, 23

United States v. Bellamy,

BLE FSG Fie Cite Gil BO excvccscreccscccesccevsessrseees 26

United States v. Booker,

SF UF Bey EE iatatieentrsersnetsnecoveseccvceceveseves passim

United States v. Coles,

403 F.3d 764 (D.C. Cir. 2005) .................0.. 17, 18, 23

United States v. Crosby,

SFT FAG Fe Cae alls BME eccscsevsecerensvevessecseecess 18, 23

United States v. Cruz,

423 F.3d 1119 (9th Cir. 2005), cert. denied,

ae iiskticcisceseceseesvesccceeeseeses 25

United States v. Gentry,

ee 27

United States v. Hammoud,

318 F.3d 316 (4th Cir. 2004), vacated and

remanded for reconsideration,

eT 18

United States v. Hayman,

Fe er airccrincscesescceressocessoesoeeee 9

United States v. Hughes,

FF Fe re I I irevecees neve ervesensesnceveveesees 23

United States v. Johnson,

Oo Ee in ocevvecevoesccccsssrces 22

United States v. Lopez,

sd ZX Ey __ | ORONO DINE 24

United States v. Martinez,

LSD F356 412 GI Cw, 1996). 0 .ccccoccccccoressseseseceseseeses 1]

United States v. Montalvo,

BB Bord. 1 & Sy: | Senne OnNE 24

United States v. Morris,

429 F.3d 65 (4th Cir. 2005), cert. denied,

vf he Ms fo SERS RE RRR eas een nen ae 26, 27

United States v. Oliver,

pg ew Rf le Re _. ) eens 23

United States v. Paladino,

401 F.3d 471 (7th Cir. 2005), cert. denied,

gt Me | noe 17, 18, 21, 23

United States v. Sanchez-Cervantes,

282 F.3d 664 (9th Cir. 2000).............ccccescrescccesceceeees 1]

United States v. Williams,

ph | eer oceaee 17

Valentine v. United States,

BE FSG 525 GINGA, FT ccecinsvnscecnivvccnverecesacoovess 15

Van Daalwyk v. United States,

Fg Be SG se SRE nEN ERIM sNene EET 1]

Varela v. United States,

400 F.3d 864 (1 1th Cir.), cert. denied,

I eae Pe tN iisiniceinssitinischinsceaieiemossonincesaranivesementncitucs 25

Washington v. Recuenco,

a ie ee I icicccisecvenncmsnsctninatineensiniaamren 25

West v. Vaughn,

204 F.3d 53 (3d Cir. 2000),

overruled on other ground,

|__| SERRE neem ema CaN Ne 24

Wilkinson v. Dotson,

IE CINE ct cndisndcsesnsssiadnniisieibbeneieinianbbiien 12

In re Winship,

EF ae FE Pi eressnnpeinsivisincincinncnsssoviaias bay 49> 02

STATUTES

FO SR 9 REPS cncecsiereresnrescensnciconesvonssseseretounensnceitns 3, 10

a eee A I cise niacin tenses nctiuiibninhaabiaceiaaiaiiahain 18

Be es Se ED titceinnsnvoceccivctinensnimnsderoeniadnioans |

ae RN sda ciscada chctcsicceishietiepbthdesscnieiciissinintdetaaosiarilase l

es Se iilsscihieeisnestncicrinissctdisesuihaiiieccustateedannsensionobe 9

Be ad is dieisciicsasesieiieescssssihibelreibwsepabiiinnedeasadiesitiiaies 9

ph ES OLE OREN MER RET Toe 12

ns Ie a itnicssiicsarsia intiieiwinteilesstcitatincstinbieguaaauitiiniadd 12

ee ee ictctivisknsapinensiscleadindpbnsseseenpaabitindsiatiesians passim

N.Y. Crim. Proc. Law § 440.20(1)...........cceceeeeeseeceeeee 17

Pub. L. No. 94-426, 90 Stat. 1334 (1976)... eee 10

The Antiterrorism and Effective Death Penalty

Act , Pub. L. No. 104-132,

ee eee NE iaicccadteruicsensdbaetatecetiabcnseswnesiboint

LEGISLATIVE MATERIALS

8 se ES yj ee 9

BS. ROD. NO. BO-TSZ0: (IPSS) nacceccerssorevcscovesesersvessssrences 9, 10

RULES

UU ING Ws DRIED Bciescinsistcconsteececesarssnaniccoendsvonenstuianney 9

ie I Bre IE Bi hecniccsiscscsilosctnisvoenscanenatoneosdonstmcaseoens 9

is ao siecccnlsedicicocaseseesbocanincnchtonsnierigensunens 9

RT II Ws wihsnecnnascciassnciiuesaseensinsebebipotunbunsnischdicedioten 9

ET II ish sstetesictesesadrsnusdpctcscipadaaeoteintibemeiaslatdies 9

es PI vai sdsicsuksetinssknsicndnimesnsdscsinevisnweneaniiahs 9

I BF ahaischitccrshivepessstiseibaascabsationiiandedsanedelsiss 9

Se a Bs ID ssccessinstciisorsanatecctncnncanesavenbiienencs 18

ee ee ale daphcicenessetnipconsvanciassstnssnainasiugibicedinss 9

a Oe I ciaviicaicseintonciodsncsnnhorsaseodunvnasecsabievetie 17

Towa R. Crim. P. 2.24(5)(a)-.c.cccccessseecescceesseecsusssessecsecenes 17

NE Bee PI I veriivccrvctconaccnientcnincsionvennsoveddncsosoens 9

I as nrenntsamnaiiginimianlagoaaieniooebininaton 11

BE er PN ID voip picsinsitdeticdcttenanscenpesdeccnonissvdeoneia 18

Section 2255 Rule | advisory committee’s note............ 10

Section 2255 Rule 2 advisory committee’s note............ 1]

Section 2255 Rule 3 advisory committee’s note............ ll

ts ta Ri dahicshacccadinivitonseddcheciccabenashadeaniotinaadassnbsnedeses 5

OE, TCT sc icinaks saree nee dethihnshiceninnsiadihapaitinrtimansnvoaints 9

xii

Se ee TFs aeaceincaceiecicecntncminicesinnabidecianeinniecamantions 9

se Wie Heat aiierentscniscntnineviddinseetininniitasintiaieenniinsiiiiaieaiind 9

PU pes ties atte srsnensdnictaitasneedcinaneibtisctaeinveinaptnieadiamiaiaiia 9

NG le ie ee witasaciildusdsiiieecianiianlincunedpedaliaiaiamioad 9

I Eric Wile See viinccsdeseinsinnitnceniacoiisatassbamussimmmnpenibaniiin l

SRE iis UN Os GUI scchacacssitnabietiadieininicietnesdetaniinesianbint 17

MISCELLANEOUS

Douglas A. Berman, When Will SCOTUS Address

Booker Retroactivity?, published via web log,

Sentencing Law and Policy,

http://sentencing.typepad.com/

sentencing _law_and_policy/2007/05/

when_will_ scotu.html (May 16, 2007)...................4.. 7

Nicholas J. Eichenseer, Comment, Retroactivity in the

Rear-View Mirror: The Case for Blakely-Booker

Retroactivity in the Federal System,

OP Bac Ne BT cesaescedioieieietinieenbiennin 7

Randy Hertz & James S. Liebman, Federal Habeas

Corpus Practice and Procedure (4th ed. 2001)......... 7

JURISDICTION

The judgment of the Second Circuit U.S. Court of

Appeals of which petitioner Hector Soto seeks review was

entered July 16, 2007. This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1). The decisions below of the Second

Circuit, App. la to 2a, and of the United States District Court

for the Eastern District of New York, App. 3a to 4a, were not

reported.

NOTIFICATION OF SOLICITOR GENERAL

Pursuant to Rule 29.4(a), service of this petition has been

made upon the Solicitor General of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The text of 28 U.S.C. § 2255, and of the Fifth and Sixth

Amendments to the United States Constitution, is set out in

the appendix at App. 21a to 23a.

STATEMENT OF THE CASE

On October 22, 1999, following a jury trial, petitioner

Hector Soto was sentenced in the Eastern District of New

York to a term of 292 months incarceration, five years

supervised release, and a special assessment of $300. App.

20. He is presently in custody at the McKean Federal

Correctional Institution at Bradford, Pennsylvania, with a

projected release date of August 28, 2019.

Mr. Soto had been convicted of offenses relating to the

distribution of a controlled substance, including a homicide in

violation of 21 U.S.C. § 848(e)(1)(A). Under that statute, a

defendant may be sentenced to 20 years or more

imprisonment, or to death. At the sentencing proceeding, the

district court reminded trial counsel that the sentence

computed in Mr. Soto’s Presentence Report (“PSR”) — life

imprisonment — was “not a recommendation. It’s the

guidelines.” App. 13a. The court also confirmed that it did

not “intend to ignore the guidelines.” App. 17a.

The court then took note of the “extraordinary

rehabilitation” achieved by Mr. Soto in the period since the

criminal conduct. App. 17a. Specifically, Mr. Soto had

become a commissioned federal officer with the United

States Border Patrol and a devoted husband and father of a

four-year-old daughter. App. 9a to 12a, 15a to 16a.

The court also found, however, that Mr. Soto had perjured

himself when he testified in his own defense at trial. App.

17a. This finding reiterated a conclusion set forth in the PSR

to support a two-level increase of Mr. Soto’s offense level

pursuant to Section 3C1.1 of the Guidelines for obstruction of

justice. See Doc. No.' 10 Ex. D at 2. Although Mr. Soto’s

292-month sentence was less severe than the life sentence

calculated in his PSR, the term exceeded the 20-year statutory

baseline by more than four years. The district court

explained that, but for its perjury finding, it would have

imposed a shorter term of incarceration. App. 18a.

The Second Circuit U.S. Court of Appeals affirmed by

order dated November 7, 2000. Doc. No. 10 Ex. D at 2-3.

Rejecting Mr. Soto’s contention that his sentence had been

improperly enhanced, the court of appeals stated that the

“Sentencing Guidelines require a two-step increase in offense

level” for perjury. /d. at 2.

~On January 12, 2005, this Court announced decision in

United States v. Booker, 543 U.S. 220, holding that the

Guidelines, as enacted, violated the Constitution insofar as

they required that sentences be increased above the maximum

authorized by facts admitted by the defendant or proved to a

jury beyond a reasonable doubt. /d. at 235, 244. The Court

directed Booker’s application in all cases on “direct review”

' References to “Doc. No.” identify the numbers assigned filings in

the district court.

without specifically addressing the decision’s application to

motions under 28 U.S.C. § 2255. Id. at 268.

Roughly six months after the Court’s Booker decision,

Mr. Soto filed a pro se motion to correct sentence under

§ 2255. Doc. No. 1. The district court had jurisdiction

pursuant to § 2255 and 18 U.S.C. § 3231, and the motion was

assigned as a matter of course to the judge who had presided

over Mr. Soto’s original sentencing. Doc. No. 2.

A § 2255 motion is timely if filed within one year of “the

date on which the right asserted was initially recognized by

the Supreme Court, if that right has been newly recognized

by the Supreme Court and made retroactively applicable to

cases on collateral review.” 28 U.S.C. § 2255 para. 6(3). In

his motion, Mr. Soto asserted error in violation of the rule

announced in Booker. Doc. No. | at 26 (Pet. at 21). He

asked the court to bear “in mind{] that the primary purpose”

of his motion was “to secure a resentencing hearing” so that

his punishment would reflect “a term consistent with the

jury’s verdict alone.” Doc. No. | at 7 (Pet. at 2); id. at 30

(Pet. at 25). By supplemental filing, Mr. Soto specifically

asserted that the district court’s perjury enhancement was

error under Booker. Doc. No. 5 at 9-10.

On June 5, 2006, while Mr. Soto’s motion was pending in

the district court, this Court issued a writ of certiorari to the

Ninth Circuit U.S. Court of Appeals to determine a closely

related question, namely, “whether our decision in Blakely v.

Washington, 542 U.S. 296 (2004), announced a new rule and,

if so, whether it applies retroactively on collateral review.”

Burton v. Stewart, 127 S. Ct. 793, 794 (2007). In Blakely, the

Court held the State of Washington’s former determinate

? Page 26 refers to the district court’s numbering of Mr. Soto’s filing,

which included a five-page form application followed by a separately

captioned, 25-page briefing. Page 21 refers to the numbering of the

separately captioned briefing.

sentencing scheme unconstitutional because it provided for

sentence to be enhanced on the basis of facts not admitted by

the defendant or proved to a jury beyond a reasonable doubt.

542 U.S. at 303. Citing and discussing numerous precedents

of this Court, the petition for certiorari in Burton specifically

contended that Blakely had announced a “watershed” rule

warranting retroactive application. See Pet. for Writ of Cert.

at 14 to 16, Case No. 05-9222 (Feb. 10, 2006).

Following the grant of certiorari in Burton, the district

court ordered the United States Attorney for the Eastern

District of New York to show cause why Mr. Soto’s motion

should not be granted. Doc. No. 9. Responding by letter

brief dated September 29, 2006, the United States argued that

Mr. Soto’s motion was not timely under 28 U.S.C. § 2255

para. 6(3) because the Second Circuit had held in Guzman v.

United States, 404 F.3d 139 (2d Cir.), cert. denied, 126 S. Ct.

731 (2005), that Booker “does not apply retroactively to cases

on collateral review.” Doc. No. 10 at 10. In subsequent

proceedings, the United States expressly acknowledged that

Mr. Soto’s motion was timely “if Booker is made

retroactive.” Decl. in Supp. of Mot. for Summ. Affirm. at 4 3

& n.1, Second Circuit Case No. 07-0950 (Mar. 22, 2007).

On January 9, 2007, while Mr. Soto’s motion was still

pending, this Court resolved the Burton appeal on which

certiorari had been granted. The Court held subject matter

jurisdiction to have been lacking, Burton, 127 S. Ct. at 796,

and accordingly could not reach the retroactivity question on

which review had been granted.

In an unpublished memorandum order dated March 6,

2007, the district court held Mr. Soto’s metion untimely

under the controlling Second Circuit authority of Guzman.

App. 3a to 4a. Taking note of the writ of certiorari and

subsequent decision in the Burton case, however, the district

court granted Mr. Soto a certificate of appealability and

appointed counsel for the express purpose of facilitating this

Court’s consideration of whether Booker’s reasonable doubt

rule should be given retroactive effect. App. 4a.

On July 16, 2007, the Second Circuit granted the United

States’ motion for summary affirmance of the order holding

Mr. Soto’s motion untimely under Guzman.’ App. 1a to 2a.

REASONS FOR GRANTING THE WRIT

Mr. Soto’s petition presents an opportunity for the Court

to settle two questions of significant import for the many

thousands of federal defendants who remain incarcerated

under prison terms imposed to punish conduct never proved

beyond a reasonable doubt. See Sup. Ct. R. 10(c).

The first is whether the circuit courts have erroneously

imported the test enunciated in Teague v. Lane, 489 U.S. 288

(1989), to define the scope of relief available on motions

under § 2255. This Court has indicated that Teague’s

application under § 2255 is unresolved. In extending Teague,

the circuits have adopted an approach that contravenes the

text of § 2255, which provides for relief by “motion” incident

to the underlying criminal proceeding, rather than by

proceedings in habeas corpus. Moreover, holdings extending

Teague rest on a distorted balancing of the interests bearing

on retroactivity analysis, particularly as implicated by claims

that federal sentences are infected with Booker error. Unlike

errors underlying a state judgment of conviction, error in a

federal sentencing proceeding may be corrected without

offense to interests in comity or federalism. Nor, in light of

the broad sentencing discretion vested in district courts by

* Mr. Soto conceded that Guzman controlled the issue in the Second

Circuit. In his submission to the court of appeals, he preserved for

purposes of certiorari review his contention that “contrary to Guzman, the

rule in Booker is retroactively applicable to his case and that his petition

was therefore timely filed under § 2255 [para. 6}](3).” Pet’r-Appellant’s

Resp. to Govt’s Mot. for Summ. Affirm. at 2-3, Second Circuit Case No.

07-0950 (Mar. 27, 2007).

Booker, do claims of error under the rule it announced intrude

more than minimally upon the finality of sentences.

The second question on which Mr. Soto seeks review is

essentially the one on which this Court granted certiorari in

Burton but could not reach for jurisdictional reasons:

whether, if Teague does apply, Booker, like other decisions

extending the requirement that criminal culpability be proved

beyond a reasonable doubt, announced a watershed rule of

criminal procedure.

I. TEAGUE’S NONRETROACTIVITY PRINCIPLE

DOES NOT LIMIT THE AVAILABILITY OF

RELIEF UNDER § 2255

Teague announced a “nonretroactivity principle” that

“acts as a limitation on the power of federal courts to grant

habeas corpus relief to ... state prisoner|s}.... [T]he Teague

principle protects not only the reasonable judgments of state

courts but also the States’ interest in finality quite apart from

their courts.” Beard v. Banks, 542 U.S. 406, 412-13 (2004)

(citation omitted). The “function of Teague’s ... standard is

to distinguish those developments in this Court’s

jurisprudence that state judges should have anticipated from

those they could not have been expected to foresee.” Jd. at

423 (Souter, J., dissenting).

Teague’s acute concern with interests of federalism and

comity has prompted the Court to recognize an open question

as to whether the decision limits the availability of relief

under § 2255. Justice Brennan, dissenting in Teague,

expressly noted the plurality opinion’s reservation of the

issue. Teague, 489 U.S. at 327. Roughly a decade later, in

Bousley v. United States, 523 U.S. 614 (1998), the Court

declined to apply Teague in a § 2255 proceeding after

pausing to acknowledge that an amicus curiae had “urge{d]”

such application. Id. at 619.*

Commentators as well have highlighted questions of

Teague’s application under § 2255. See Douglas A. Berman,

When Will SCOTUS Address Booker Retroactivity?,

published via web log, Sentencing Law and Policy,

http://sentencing.typepad.com/sentencing_law_and_policy/20

07/05/when_will_scotu.html (May 16, 2007); 2 Randy Hertz

& James S. Liebman, Federal Habeas Corpus Practice and

Procedure § 25.6 at 1109-1113 & nn.14, 18-19 (4" ed. 2001);

Nicholas J. Eichenseer, Comment, Retroactivity in the Rear-

View Mirror: The Case for Blakely-Booker Retroactivity in

the Federal System, 2005 Wis. L. Rev. 1137, 1167-69.

The Court has not subsequently revisited the issue. See,

e.g., Dodd v. United States, 545 U.S. 353, 358 (2005)

(declining to reach question of retroactivity because § 2255

motion was untimely due to defendant’s failure to seek relief

within one year of “date on which the right asserted was

initially recognized by the Supreme Court’). Last term,

however, the Court granted certiorari to review another

question regarding Teague’s proper scope, namely, whether

state courts may direct that new rules of federal law be given

broader application than provided under Teague. See

Danforth v. Minnesota, Case No. 06-8273 (cert. granted May

21, 2007), decision below at 718 N.W.2d 451 (Minn. 2006).

Mr. Soto’s petition presents an excellent opportunity to

examine the intersection of Teague and § 2255. Under the

applicable limitations provision, a § 2255 motion is timely if:

(1) it “assert{s]” a right within one year of the date that nght

4 The Court’s opinion in Bousley explained that Teague, “by its

terms,” was inapplicable because the § 2255 movant sought the benefit of

a “decision{} of this Court holding that a substantive federal criminal

statute does not reach certain conduct.” 523 U.S. at 620.

“was initially recognized by the Supreme Court,” Dodd, 545

U.S. at 358; (2) the right was “newly recognized by the

Supreme Court,” § 2255 para. 6(3); and (3) the nght is “made

retroactively applicable to cases on collateral review,” id.

Mr. Soto brought his motion asserting Booker error well

within one year of the Booker decision, but was deemed out

of time under Second Circuit precedent holding that Booker

is not to be given retroactive effect. In this posture, the case

permits the Court to review the recurring question of whether

Teague controls the construction of the phrase “made

retroactively applicable to cases on collateral review” in

§ 2255 para. 6(3) or otherwise limits the availability of relief

on motions under the statute.

Should Mr. Soto’s motion be held timely, the matter

should be remanded for the district court to determine

whether his sentence was, as asserted, infected by Booker

error and, if so, whether and how to remedy that infirmity.

A. Section 2255 Motions Do Not Sound in Habeas Corpus

and Accordingly are Outside the Scope of Teague

Properly interpreted, the text of § 2255 indicates that

federal defendants who seek to correct sentence may do so by

further proceedings incident to the original criminal

prosecution, without resort to habeas corpus. Because

Teague limits retroactive application of new rules only in

“collateral” proceedings, 489 U.S. at 310, the test it

establishes should not be held to apply to motions under

§ 2255.

1. The Statutory Text, as Underscored by Its Legislative

History and Remedial Structure, Distinguishes § 2255

From Habeas Corpus

Despite some similarities, §2255 is not merely a

codification of habeas corpus for federal defendants. The

statute directs defendants to proceed by “motion.” § 2255

paras. 2, 3, 4, 7, 8. The provision also expressly distinguishes

its motion remedy from the Great Writ. See § 2255 para. 5;

see also United States v. Hayman, 342 U.S. 205, 220 (1952)

(“This [§ 2255 motion] is not a habeas corpus proceeding.”)

In contrast, 28 U.S.C. § 2254 describes the relief available to

state prisoners by application for a “writ of habeas corpus,”

e.g., § 2254(a), without contemplation of any proceeding on

“motion.”

Across the range of federal practice, a “motion” means a

request lodged within a previously commenced proceeding.

Compare, e.g., Criminal Procedure Rule 7(a) (defining

“indictment” as means by which felony offense “must be

prosecuted” absent waiver) with id. Rule 47 (providing for

“motion” as means of applying “to the court for an order”);

Civil Procedure Rule 3 (requiring that civil action be

commenced by “complaint”) with id. Rule 7(a), (b)

(distinguishing complaints from motions); Appellate

Procedure Rule 3(a)(1) (requiring that appeal of right be

taken by “notice”), and id. at Rule 5(a)(1) (requiring that

request for permissive appeal be made by “petition”) and id.

at Rule 21(a) (requiring that extraordinary writs be sought by

“netition”) with id. at Rule 27 (authorizing motions as means

to apply “for an order or other relief”); Supreme Court Rules

12.1 and 17.2 and 18.1 (forms of review sought via “petition”

or “notice”) with id. Rule 21.2(a), (b) (addressing relief

available on “motion”); see also Section 2254 Rule 2(d)

(prescribing form of “petition” for wnt of habeas corpus

brought by state prisoner).

Consistent with the statutory text, the legislative history

of § 2255 expressly states that the “motion remedy is in the

criminal proceeding.” S. Rep. No. 80-1526 at 2 (1948).

Congress also expressly characterized §2255 as “an

expeditious remedy for correcting erroneous sentences

without resort to habeas corpus,” H.R. Rep. 80-308, App. at

A180 (1947), and enumerated certain advantages of the

“motion remedy over the present habeas corpus,” S. Rep. No.

80-1526 at 2.

In 1976, Congress adopted the Rules Governing Section

2255 Proceedings. See Pub. L. No. 94-426, 90 Stat. 1334.

The advisory committee note promulgated in connection with

the rulemaking process reiterated that “a motion under § 2255

is a further step in the movant’s criminal case and not a

separate civil action.” Section 2255 Rule 1 advisory

committee’s note (citing legislative history of § 2255).

These remarks in the legislative and rulemaking history

were not idle asides. To the contrary, the breadth of remedial

powers afforded by § 2255 is contingent on the motion’s

character as an incident of the underlying criminal

proceeding. In effect, the court exercises its “original

jurisdiction ... of all offenses against the laws of the United

States.” 18 U.S.C. § 3231. It may “correct the sentence,”

§ 2255 para. 2, when, for example, Booker error causes a

term of incarceration to be fixed at a longer duration than

authorized by the jury’s findings. By contrast, the core of

habeas corpus jurisdiction is the judicial authority to examine

the legality of custody. See Rumsfeld v. Padilla, 542 U.S.

426, 435 (2004) (identifying “challenges to present physical

confinement” as “core challenges”). As a result, the essential

remedial power associated with the Great Writ is that of

compelling a prisoner’s release, e.g., In re Medley, 134 U.S.

160, 173 (1890), with such release often conditioned on the

State’s failure to retry the petitioner within a designated

period of time, Herrera v. Collins, 506 U.S. 390, 403 (1993).

Federal habeas jurisdiction has never functioned to permit a

federal court simply to adjust a sentence imposed by a state

court, authorizing instead only the cruder remedy of voiding a

sentence entirely. Solem v. Helm, 463 U.S. 277, 284, 303

(1983); In re Bonner, 151 U.S. 242, 259, 262 (1894); Moore

v. Anderson, 222 F.3d 280, 286 (7th Cir. 2000).

Like its statutory text, legislative history, and remedial

breadth, § 2255’s rules of practice distinguish the motion

remedy from the Great Writ. A prisoner must “move the

court which imposed” the sentence, § 2255 para. 1, rather

than, as in habeas corpus proceedings, a court with

jurisdiction over the prisoner’s warden, see Padilla, 542 U.S.

at 442. Ordinarily the clerk must, as occurred in Mr. Soto’s

case, “promptly forward the motion to the judge who

conducted the trial and imposed sentence.” Section 2255

Rule 4. Moreover, as the United States is already the

“movant’s adversary of record,” a federal defendant need not

name any respondent. See Rule 2 advisory committee’s note.

Similarly, a movant need not pay any new filing fee. See

Rule 3 advisory committee’s note.

2. Circuit Court Authority Holding Teague Applicable

Under § 2255 Is Not Persuasive

Several courts of appeals have held that Teague applies to

motions under § 2255. United States v. Sanchez-Cervantes,

282 F.3d 664, 667-68 & nn.9-11 (9th Cir. 2002); Daniels v.

United States, 254 F.3d 1180, 1193-94 (10th Cir. 2001) (en

banc); United States v. Martinez, 139 F.3d 412, 416 (4th Cir.

1998); Van Daalwyk v. United States, 21 F.3d 179, 181-83

(7th Cir. 1994); Gilberti v. United States, 917 F.2d 92, 94-95

(2d Cir. 1990). None of these cases considered a non-

successive § 2255 motion, like Mr. Soto's, that challenged

only sentence. Nor did these opinions address § 2255’s text,

history, remedial breadth, or rules of practice. Instead, while

acknowledging that Teague expressly considered only state

judgments of conviction, the courts presumed an identical

interest in finality to inform post-conviction review in the

federal context, and reasoned that any failure to extend

Teague would therefore give rise to unwarranted disparities

between federal and state prisoners.

This rationale is not persuasive. As further discussed in

Part 1.B.2, the interest in finality exerts less force in federal

post-conviction review of federal prosecutions than it does in

federal court review of state convictions, and it is particularly

attenuated when a federal defendant challenges only

sentence. Indeed, as explained below, the interest is weakest

when a sentencing challenge turns on the novel discretion

that Booker vested in district courts.

The circuit courts’ concern for disparity in federal court

review of challenges by federal as distinct from state

prisoners is also misplaced, because it neglects Congress’s

enactment of different standards to govern post-conviction

proceedings in each context. The Antiterrorism and Effective

Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110

Stat. 1214 (1996), expressly limited state prisoners to

challenges of “a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.”

See AEDPA § 104, 110 Stat. at 1219, codified at 28 U.S.C.

§ 2254(d)(1); Carey v. Musladin, 127 S. Ct. 649, 654 (2006).

Federal defendants, by contrast, proceed under a statute that

plainly does not limit review to the precedent of this Court.

See § 2255 para. 1. Similarly, with respect to state prisoners’

habeas petitions, AEDPA mandated deference to state courts’

findings of fact and prescribed a new, heightened standard

that must be satisfied before evidence will be heard. See

AEDPA § 104, 110 Stat. at 1219, codified at 28 U.S.C.

§ 2254(e). No like restriction limits federal defendants who

return to the sentencing court to seek further hearing. See

§ 2255 para. 2; Wilkinson v. Dotson, 544 U.S. 74, 87 (2005)

(Scalia, J., concurring).

In sum, the weakened interest in finality implicated by

Booker challenges to federal sentence, as described more

fully below, along with Congress’s enactment of limitations

unique to federal habeas review of state convictions, together

displace the rationale on which the circuit courts have relied

in presuming Teague to apply under § 2255. As a matter of

law, § 2255’s text, its history, and its structure, as evinced by

the availability of remedies foreign to habeas corpus and

rules delineating a motion-based practice, all demonstrate that

the motion brought by Mr. Soto is a continuation of his

original criminal case, not a separate proceeding in habeas

corpus. For these reasons, the Court should issue a writ of

certiorari to determine whether Teague’s habeas corpus rule

defines the meaning of “retroactively” as used in § 2255 para.

6(3) or otherwise restricts the availability of relief under the

Statute.

B. The Range of Interests Properly Informing

Retroactivity Analysis Militates Against Extension of

Teague’s Nonretroactivity Principle to § 2255

Motions, Particularly When Booker Error Is Asserted

Mr. Soto’s petition presents the Court with an opportunity

to address the proper balancing of the interests informing

retroactivity analysis when a federal defendant moves under

§ 2255 to correct a sentence on the basis of asserted Booker

error. In this context, the concerns of federalism and comity

safeguarded by Teague are wholly absent, and the interest in

finality is of substantially diminished significance.

1. Proceedings Under $2255 Do Not Implicate

Teague ‘s Core Federalism Concerns

The plurality in Teague distilled the rationale essential to

its ruling as follows:

The costs imposed upon the State[s] by

retroactive application of new rules of

constitutional law on habeas corpus

generally far outweigh the benefits of this

application. In many ways the application of

new rules to cases on collateral review may be

more intrusive than the enjoining of criminal

prosecutions, for it continually forces the

States to marshal resources in order to keep in

prison defendants whose trials and appeals

conformed to then-existing constitutional

standards. Furthermore ... [s]tate courts are

understandably frustrated when they faithfully

apply existing constitutional law only to have

a federal court discover, during a [habeas]

proceeding, new constitutional commands.

Teague, 489 U.S. at 310 (emphasis in original; citations

omitted).

In the years since Teague, this Court has elaborated upon

the gravity of the threat posed to the federal-state balance by

unsound exercise of federal habeas jurisdiction to review

state court convictions. “Our federal system recognizes the

independent power of a State to articulate societal norms

through criminal law; but the power of a State to pass laws

means little if the State cannot enforce them.” Calderon v.

Thompson, 523 U.S. 538, 556 (1998). Accordingly, federal

habeas doctrine has of necessity been informed not merely by

“standards of general application,” but also by

“jurisprudential limits” peculiar to the extraordinary interests

implicated by collateral attack upon “a criminal judgment

entered in state court.” /d. at 553.

The “foremost” purpose served by federal habeas

jurisdiction is “ensuring that state courts conduct criminal

proceedings in accordance with the Constitution as

interpreted at the time of the proceedings.” Saffle v. Parks,

494 US. 484, 488 (1990). “In order to perform this

deterrence function, ... the habeas court need only apply the

constitutional standards that prevailed at the time the original

proceedings took place.” Teague, 489 U.S. at 306. Indeed, it

must apply only such standards if state jurists are to perceive

issuance of the writ as meaningful censure for failing to

uphold the Constitution. See Banks, 542 U.S. at 423 (Souter,

J., dissenting). Teague therefore “validates reasonable, good-

faith interpretations of existing precedents made by state

courts even though they are shown to be contrary to later

decisions.” Butler v. McKellar, 494 U.S. 407, 414 (1990).

Unlike habeas corpus, proceedings under § 2255 do not

require the careful calibration of checks and balances

essential to the dual sovereignty established under the

Constitution’s federalist structure. Rather, the conviction or

sentence under review was rendered not merely by a federal

rather than a state court, but by the very same federal court,

and typically by the very same federal judge, that presided

over the original proceedings. It can hardly be said in this

context that there is need of any special “limitation on the

power of federal courts,” nor of attention to a “delicate state-

federal relationship.” No deterrent function need be ensured

— nor would be served — by limiting review to the questions

of law already decided by the judge who sentenced the

defendant. As one federal jurist has recently put it, in an

opinion considering Booker’s retroactivity:

In a section 2255 case ... where comity and

federalism are itrelevant, there is much less

need to defer to the divergent views of federal

judges who, in hindsight, did not correctly

apply existing precedent to a new case. We

are, after all, members of inferior courts

established by the same sovereign (unlike state

court judges), and if the Supreme Court says

we were wrong, we should take our medicine

and gladly apply the correct’ rule

retroactively....

Valentine v. United States, 488 F.3d 325, 343 (6th Cir. 2007)

(Martin, J., dissenting).

2. The Interest in Finality Is Not Pronounced in the

§ 2255 Context, Particularly When Defendants Assert

Sentencing Error Under Booker

The absence of federalism and comity interests in the

§ 2255 context leaves as Teague’s remaining rationale “the

principle of finality which is essential to the operation of our

criminal justice system.” Teague, 489 U.S. at 309. While

this concern may not be wholly absent when a defendant

seeks to correct sentence via § 2255, it is considerably muted.

The Court’s decision in Massaro v. United States, 538

U.S. 500 (2003), illuminates the general point. There, the

Court held that a defendant’s failure to raise an ineffective

assistance of counsel claim on appeal does not preclude that

claim’s subsequent assertion by motion under § 2255. Jd. at

504. The Court reasoned that the procedural-default doctrine

— generally “adhered to by the courts to conserve judicial

resources and to respect the law’s important interest in the

finality of judgments,” id. — should give way because the

district court is the “forum best suited to developing the facts

necessary to determining the adequacy of representation,” id.

at 505. Massaro thus stands for the proposition that, in the

§ 2255 context, the law’s interest in finality should yield

when adjudication in the district court offers plain practical

advantages. The same cannot be said in the context of federal

habeas corpus, in which federal courts have continued to

apply the procedural-default doctrine inflexibly. See Gomez

v. Jaimet, 350 F.3d 673, 678 (7th Cir. 2003) (recognizing that

state prisoners have no right under Massaro to wait until

conclusion of direct appeal before raising ineffective

assistance claims); see also Sanchez-Llamas v. Oregon, 126

S. Ct. 2669, 2687 (2006) (confirming Massaro’s reliance on

distinction between state and federal prisoners).

Like the factual findings considered in Massaro,

assertions of Booker error are best addressed by the

sentencing court. Because an appellate court generally will

not “know what the sentence would have been absent the

error,” the best solution is to “ask the sentencing judge.”

United States v. Williams, 399 F.3d 450, 458-59 (2d Cir.

2005) (Newman, J.); United States v. Paladino, 401 F.3d 471,

483 (7th Cir. 2005) (Posner, J.), cert. denied, 546 U.S. 1175

(2006); United States v. Ameline, 409 F.3d 1073, 1079, 1081

n.4 (9th Cir. 2005) (en banc); United States v. Coles, 403

F.3d 764, 770 (D.C. Cir. 2005) (per curiam). Like the

questions of fact essential to claims of ineffective assistance

of counsel, the matters of discretion essential to claims of

Booker error give the district court a comparative institutional

advantage. For this reason, assertions of Booker error may be

addressed most expeditiously under § 2255.

Moreover, unlike the claim of ineffective assistance of

counsel considered in Massaro, error under Booker will never

scuttle a jury verdict. Nor will its rule — that “any fact that

exposes a defendant to a greater potential sentence must be

.. established beyond a reasonable doubt,” Cunningham v.

California, 127 S. Ct. 856, 863-64 (2007) — ever require a

court to revisit the defendant’s guilt or innocence. State

courts and legislatures, in developing procedures for

challenges exclusively to sentence, have commonly taken

account of the delimited inquiry such claims require by

permitting them to be raised at any time. See, e.g., Fla. R.

Crim. P. 3.800; lowa R. Crim. P. 2.24(5)(a); State v. Murray,

162 N.J. 240, 247 (N.J. 2000); N.Y. Crim. Proc. Law

§ 440.20(1); Moody v. State, 160 S.W.3d 512, 516 (Tenn.

2005); Utah R. Crim. P. 22(e); Dargan v. Commonwealth,

500 S.E.2d 228, 229 (Va. Ct. App. 1998). So too should

federal courts relax otherwise applicable limitations on post-

conviction review when assessing challenges exclusively to

sentence.

Booker’s intrusion upon finality is also minimized by the

limited corrective remedy to be applied. A defendant will not

be entitled to resentencing unless the district court would

have imposed a different sentence in the exercise of its

discretionary authority. Booker, 543 U.S. at 267-68; United

States v. Antonakopoulos, 399 F.3d 68, 81 (1st Cir. 2005);

United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005)

(Newman, J.); Paladino, 401 F.3d at 484 (7th Cir.) (Posner,

J.); Ameline, 409 F.3d at 1081 (9th Cir) (en banc); Coles, 403

F.3d at 770-71 (D.C. Cir.) (per curiam). In many instances, it

will be possible for a court to ascertain whether resentencing

is necessary simply by considering the existing record in light

of the factors enumerated in 18 U.S.C. § 3553(a). No

submission need be required from the government, see

§ 2255 para. 2, no evidence need be heard, see id., and see

Section 2255 Rule 8(a), and no defendant need be produced,

see Fed. R. Crim. P. 43(b)(3), Crosby, 397 F.3d at 120. The

record may already include an express pronouncement of the

sentence that would have been imposed in the exercise of

discretion. See United States v. Hammoud, 81 F.3d 316, 354

(4th Cir. 2004) (en banc) (recommending prior to Booker that

district courts “announce, at the time of imposing a guidelines

sentence, a sentence pursuant to 18 U.S.C.A. § 3553(a),

treating the guidelines as advisory only”), vacated and

remanded for reconsideration in light of Booker, 125 S. Ct.

1051 (2005); Paladino, 401 F.3d at 482 (7th Cir.) (Posner, J.)

(contemplating same).

Notably, in Mr. Soto’s own case, the sentencing judge’s

grant of a certificate of appealability and appointment of

counsel, notwithstanding the Second Circuit’s clearly

controlling Guzman precedent, provide strong indication of

that court’s inclination to grant discretionary relief to the

extent permitted by law.

In sum, there is substantial authority and reason to

conclude that finality does not militate as heavily against

retroactivity in the context of § 2255 motions as it does in

habeas corpus, particularly with respect to the correction of

Booker error.°

3. Teague Undermines a Sound Conception of the

Judicial Role and Squanders Judicial Resources

Substantial interests militate against extension of the

Teague retroactivity test to motions under § 2255. First,

Teague requires a departure from the traditional judicial role,

whether defined by reference to “the province and duty of the

judicial department to say what the law is,” Marbury v.

Madison, | Cranch (5 U.S.) 137, 177 (1803), or the broader

common law tradition. See Mackey v. United States, 401

U.S. 667, 677-81 (1971) (Harlan, J., concurring in two

judgments and dissenting in one) (explaining that failure to

apply new rules retroactively on direct review “entails an

inexplicable and unjustifiable departure from the basic

principle upon which rests the institution of judicial review”);

Linkletter v. Walker, 381 U.S. 618, 622 (1965) (“At common

law there was no authority for the proposition that judicial

decisions made law only for the future.”). “To hold a

governmental act to be unconstitutional,” as in Booker, “is

not to announce that we forbid it, but that the Constitution

forbids it.... Since the Constitution does not change from

year to year; since it does not conform to our decisions, but

our decisions are supposed to conform to it; the notion that

our interpretation of the Constitution in a particular decision

could take prospective form does not make sense.” American

Trucking Ass’ns v. Smith, 496 U.S. 167, 201 (1990) (Scalia,

J., concurring). By establishing an analytical framework

* It should also be recalled that any § 2255 motion asserting that a

sentence violates the constitutional rule announced in Booker is untimely

unless it was filed by January 12, 2006, i.e., within one year of the

decision. This Court has clearly ruled that any new decision holding

Booker retroactive will not revive the one-year limitations period. Dodd,

545 U.S. at 358-59.

tending to favor non-retroactive application, Teague has

diluted this jurisprudential principle.

A second jurisprudential concern implicated by Teague is

the strain upon judicial resources occasioned by its fixed

“order of battle” rule. Under Teague, a court may not dispose

of a case on the ground that the rule sought to be given

retroactive effect simply would not warrant relief were it

applied to the merits of the case. Caspari v. Bohlen, 510 U.S.

383, 389 (1994). Nor may courts hold a rule not to be

retroactive by selecting the analysis posing the fewest

complexities. Instead, a habeas court must first decide

whether a conviction is final; if so, it must next decide

whether the right asserted arises from a new rule of

constitutional law; and, if so, only then may the court finally

reach the question of whether the rule is retroactive. Banks,

542 U.S. at 411. Yet the determination of whether a

procedural rule is “new” has commonly proved difficult, e.g.,

Lambrix v. Singletary, 520 U.S. 518, 527-39 (1997); Stringer

v. Black, 503 U.S. 222, 228-237 (1992); Penry v. Lynaugh,

492 U.S. 302, 313-19 (1989), whereas the question of

retroactivity may lend itself more frequently to summary

analysis.

Members of this Court have expressed persistent

discomfort with “rigid order of battle” rules suspected to

engender inefficiencies akin to those created by Teague. See,

e.g., Scott v. Harris, 127 S. Ct. 1769, 1774 n.4 (2007)

(citation omitted) (inviting reconsideration of requirement

under Saucier v. Katz, 533 U.S. 194, 201 (2001), that courts

applying doctrine of qualified immunity first determine

whether constitutional mght was violated before asking

whether right was “clearly established”); see also id. at 16

(Ginsburg, J., concurring); id. at 18 (Breyer, J., concurring);

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,

111 (1998) (Breyer, J., concurring in part and in judgment);

see also Sinochem Int'l Co. v. Malaysia Int’! Shipping Corp.,

127 S. Ct. 1184, 1194 (2007). The utility of fixed “order of

battle” rules might helpfully be revisited by considering

Teague’s application in the § 2255 context.

In sum, the constellation of interests implicated by the

question of whether Teague governs motions under § 2255

presents an opportunity for this Court to devise a sound

retroactivity jurisprudence in a context whose vital

significance is apparent on recalling that it “is a miscarriage

of justice to give a person an illegal sentence that increases

his punishment, just as it is to convict an innocent person.”

United States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005)

(Posner, J.), cert. denied, 546 U.S. 1175 (2006). The absence

of federalism or comity concerns, the diminished significance

of finality both as a general proposition and in the specific

context of Booker, the proper role of the American judiciary,

and the opportunity to conserve judicial resources all favor

the fashioning of a distinct retroactivity standard.

Il. BOOKER ANNOUNCED A ‘WATERSHED’ RULE

OF CRIMINAL PROCEDURE WITHIN THE

MEANING OF TEAGUE

Should the Court extend Teague to limit the relief

available under § 2255, it should grant certiorari to review

the court of appeals’ determination that Booker did not

announce a “watershed rule of criminal procedure.”

As the district court found, App. 3a to 4a, it is evident that

this question merits the Court’s attention in light of the

issuance last term, see Burton, 127 S. Ct. at 794, of a wnit of

certiorari to consider the retroactivity of the rule announced

in Blakely v. Washington. In Burton, the petitioner focused,

as here, on the requirement of proof beyond a reasonable

doubt rather than the freestanding requirement that facts

essential to sentence be found by a jury. For jurisdictional

reasons, however, the Court was unable to reach the question

on which it granted certiorari. Burton, 127 S. Ct. at 796.

Mr. Soto’s petition now presents an opportunity to decide it.

A. The Failure to Find Sentencing Facts By Proof Beyond

A Reasonable Doubt Substantially Diminishes

Accuracy and Neglects a Bedrock Element of Fairness

A watershed rule is one that “implicat[es] the

fundamental fairness and accuracy of the criminal

proceeding.” Graham v. Collins, 506 U.S. 461, 478 (1993).

To qualify, a rule must meet two requirements: its

infringement 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). Booker’s extension of the requirement

of proof beyond a reasonable doubt to federal sentencing

proceedings should be held to meet this definition.

The Court has previously directed that the requirement of

proof beyond a reasonable doubt is so essential to the right of

fair trial as to require “complete retroactive effect.”

Hankerson v. North Carolina, 432 U.S. 233, 243 (1977); see

also United States v. Johnson, 457 U.S. 537, 544 (1982).

Failure to uphold the reasonable doubt standard “substantially

impairs [the criminal trial’s] truth-finding function and so

raises serious questions about the accuracy of guilty

verdicts.” Hankerson, 432 U.S. at 243. As a “prime

instrument for reducing the risk of ... factual error,” the

requirement of proof beyond a reasonable doubt is

“indispensable, for it impresses on the trier of fact the

necessity of reaching a subjective state of certitude of the

facts in issue.” Jn re Winship, 397 U.S. 358, 363-64 (1970).

Even more fundamentally, the reasonable doubt 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.’” Winship, 397 U.S. at

363 (quoting Coffin v. United States, 156 U.S. 432, 453

(1895)).

The dual functions served by the standard make clear that

its novel application in federal sentencing proceedings

necessarily implicates both “accuracy” and “fundamental

fairness” within the meaning of the watershed rule exception.

As the standard is a “prime instrument for reducing the risk

of ... factual error” and, conversely, as the rule’s neglect

“substantially impairs” the truth-finding function, it is clear

that the requirement of proof beyond a reasonable doubt

satisfies the first element of the definition of a “watershed”

rule, namely, that its infringement “seriously diminish[es] the

likelihood” of an accurate determination of culpability.

Moreover, the novel application of a “bedrock axiomatic

and elementary principle,” Winship, 397 U.S. at 363, satisfies

the second “watershed” element, requiring that the new rule

“alter our understanding of the bedrock procedural elements”

of a fair federal sentencing hearing. Booker’s essential

contribution to fundamental fairness has found expression in

the exercise of discretion by numerous courts of appeals to

correct unpreserved Booker error that “seriously affect[ed]

the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Oliver, 397 F.3d 369, 378 (6th

Cir. 2005); see also United States v. Antonakopoulos, 399

F.3d 68, 81-82 (Ist Cir. 2005); United States v. Crosby, 397

F.3d 103, 119 (2d Cir. 2005) (Newman, J.); United States v.

Hughes, 396 F.3d 375, 381 n.8 (4th Cir. 2005) (Wilkins,

C.J.); United States v. Paladino, 401 F.3d 471, 483 (7th Cir.

2005) (Posner, J.), cert. denied, 546 U.S. 1175 (2006); United

States v. Ameline, 409 F.3d 1073, 1079, 1081 (9th Cir. 2005)

(en banc); United States v. Coles, 403 F.3d 764, 767 (D.C.

Cir. 2005) (per curiam).

Consonant with the reasonable doubt standard’s

watershed quality, this Court and the circuits have repeatedly

held, as in Hankerson, that new rules giving effect to the

standard must be applied retroactively after the conclusion of

direct appeal. /van V. v. City of New York, 407 U.S. 203, 205

(1972); United States v. Montalvo, 331 F.3d 1052, 1055-56

(9th Cir. 2003) (considering rule announced in Richardson v.

United States, 526 U.S. 813 (1999)); Ross v. United States,

289 F.3d 677, 681 (11th Cir. 2002) (same); Santana-Madera

v. United States, 260 F.3d 133, 139 (2d Cir. 2001) (same);

United States v. Lopez, 248 F.3d 427, 432 (Sth Cir. 2001)

(same); Murr v. United States, 200 F.3d 895, 906 (6th Cir.

2000) (same); Lanier v. United States, 220 F.3d 833, 838 (7th

Cir. 2000) (same); Gaines v. Kelly, 202 F.3d 598, 605 (2d

Cir. 2000) (considering rule announced in Cage v. Louisiana,

498 U.S. 39 (1990)); West v. Vaughn, 204 F.3d 53, 61-63 (3d

Cir. 2000) (same), overruled on other ground, Tyler v. Cain,

533 U.S. 656, 661-62 (2001); Tillman v. Cook, 215 F.3d

1116, 1122 (10th Cir. 2000) (considering rule of Cage);

Humphrey v. Cain, 138 F.3d 552, 553 (Sth Cir. 1998) (en

banc) (same); Adams v. Aiken, 41 F.3d 175, 178-79 (4th Cir.

1994) (same); Nutter v. White, 39 F.3d 1154, 1157-58 (11th

Cir. 1994) (same); Hall v. Kelso, 892 F.2d 1541, 1543 n.1

(11th Cir. 1990) (considering rule announced in Sandstrom v.

Montana, 442 U.S. 510 (1979), and Francis v. Franklin, 471

U.S. 307 (1985)).°

This Court has also held that a failure to give proper

effect to the reasonable doubt standard is “structural error”

necessarily invalidating any conviction. See Sullivan v.

Louisiana, 508 U.S. 275, 280-82 (1993). Because the

definition of structural error, see Arizona v. Fulminante, 499

U.S. 279, 310 (1991), is congruent with the definition of a

watershed rule, Sullivan directs that any new rule extending

the reasonable doubt standard falls within the Teague

exception. See Tyler v. Cain, 533 U.S. at 671-74 (Breyer, J.,

tests, including the watershed rule exception, the exception for new

substantive rules, and a pre-7eague standard.

dissenting) (identifying congruence); id. at 666-67 & n.7

(opinion of the Court).’

B. Circuit Court Decisions Holding Booker Not To Be

Retroactive Rest Upon Erroneous Analyses

At odds with the reasonable doubt standard’s place at the

“foundation of the administration of our criminal law,”

Winship, 397 U.S. at 363, the circuit courts have not

recognized the watershed character of Booker’s requirement

that facts exposing a defendant to enhancement under the

mandatory Guidelines had to be proved beyond a reasonable

doubt, see Cunningham, 127 S. Ct. at 863-64. The circuit

consensus has resulted from a failure to come to terms with

the reasonable doubt standard’s essential role in promoting

accuracy and fairness.

Several courts have failed to distinguish between

Booker’s requirement of proof beyond a reasonable doubt and

its separate requirement that sentence-enhancing facts be

found by a jury. These courts have then erroneously treated

Schriro v. Summerlin, 542 U.S. 348 (2004), as controlling.

See Humphress v. United States, 398 F.3d 855, 863 (6th Cir.),

cert. denied, 546 U.S. 885 (2005); United States v. Cruz, 423

F.3d 1119, 1120-21 (9th Cir. 2005), cert. denied, 546 U.S.

1155 (2006); Varela v. United States, 400 F.3d 864, 867-68

(11th Cir.), cert. denied, 546 U.S. 924 (2005). In Summerlin,

” Washington v. Recuenco, 126 S. Ct. 2546 (2006), is not to the

contrary. There, the Court held that no structural error undermined a

sentence enhanced for use of a firearm when a jury had determined,

beyond a reasonable doubt, that the defendant used a “deadly weapon.”

Id. at 2549. Because the only “deadly weapon” as to which the

prosecution introduced evidence was a firearm, id. (quoting charging

instrument and describing State’s case), the judge was not required to find

any fact in order to impose the enhancement. Rather, all that was required

was construction of the jury’s verdict in light of a record that dictated, as a

matter of logic, one and only one reading. In other words, there was no

Blakely error — structural or otherwise.

however, this Court had no occasion to consider the

reasonable doubt standard extended in Booker, because the

case addressed a state capital sentencing scheme that had

always required sentencing facts to be proved beyond a

reasonable doubt. /d. at 353 (noting that rule sought to be

given retroactive effect, announced in Ring v. Arizona, 536

U.S. 584 (2002), “rested entirely on the Sixth Amendment’s

jury-trial guarantee”).® While the same jury trial right was

also one aspect of Booker’s holding, the Guidelines differed

from the scheme considered in Summerlin in that the

Guidelines provided for mandatory enhancement on the basis

of facts proved by a simple preponderance rather than beyond

a reasonable doubt.

Another misapprehension on the part of at least one court

is the view that determinations of culpability do not implicate

the concerns of accuracy and fairness that inform

determinations of guilt. United States v. Bellamy, 411 F.3d

1182, 1188 (10th Cir. 2005). That reasoning conflicts with

the precedent of this Court, which has held that the Due

Process Clause requires proof beyond a reasonable doubt of

facts essential “not only [to] guilt or innocence ... but also

[to] the degree of criminal culpability.” Mullaney v. Wilbur,

421 U.S. 684, 697-98 (1975). The Summerlin decision

confirms the error of this line of analysis. See Lloyd v.

United States, 407 F.3d 608, 614-15 (3d Cir.), cert. denied,

546 U.S. 916 (2005) (explaining why “Summerlin leaves little

doubt that the ‘watershed rule’ exception can apply to a

procedural rule that only affects sentencing”).

Most relevant to Mr. Soto’s motion is a third error evident

in the Second Circuit precedent under which he was deemed

out of time, as well as in the precedents of at least four other

courts of appeals. See Lloyd, 407 F.3d at 615; United States

* The requirement of proof beyond a reasonable doubt “is prescribed

by the Due Process Clause.” Sullivan, 508 U.S. at 277.

v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied, 127

S. Ct. 121 (2006); United States v. Gentry, 432 F.3d 600, 605

(Sth Cir. 2005); McReynolds v. United States, 397 F.3d 479,

481 (7th Cir.), cert. denied, 545 U.S. 1110 (2005). These

decisions erroneously treat the question of Booker

retroactivity exclusively by reference to the remedy by which

Booker preserved an advisory Guidelines regime. They fail

to acknowledge the existence of a distinct issue as to the

proper scope to be given Booker’s rule extending the

reasonable doubt standard.

Hence, the Second Circuit reasoned that “(t]he procedural

defect identified in Booker is that sentence-enhancing factors

were found by judges rather than by juries, and by a

preponderance rather than beyond a reasonable doubt; but the

remedy—to render the Guidelines advisory—vested greater

discretion in judges, not less.” Guzman, 404 F.3d at 143.

“Booker did not establish a watershed rule because the only

change is the degree of flexibility judges enjoy in applying

the guideline system.” /d. (citation and alteration marks

omitted).

Yet the fact that the statute’s unconstitutionality was

remedied with relative ease does not mean that

unconstitutional sentences may be dispatched in like manner.

Mr. Soto’s assertion is that he was punished in violation of

the rule that sentence may not be enhanced upon facts never

tested against the reasonable doubt standard. It is this

proscription which, if “made retroactive,” renders Mr. Soto’s

petition timely under 28 U.S.C. § 2255 para. 6(3). Booker’s

salvage of a substantial part of the Guidelines going forward

did not cure constitutional errors that had already occurred.

The Second Circuit’s failure to acknowledge this distinction

calls to mind this Court’s recent exhortation that “Booker’s

remedy for the Federal Guidelines, in short, is not a recipe for

rendering our Sixth Amendment case law toothless.”

Cunningham, 127 S. Ct. at 870; see also id. at 869-70 & n.15

(holding that state sentencing regime under which statutory

enhancement requires judge to find facts by simple

preponderance violates rule of Booker, even when decision to

enhance is discretionary).

CONCLUSION

For the foregoing reasons, the Court should grant

certiorari to consider the questions presented.

Dated: September 6, 2007

New York, New York

Respectfully submitted,