Petition for Writ of Certiorari — Patti v. United States

Supreme Court brief2005

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What actually matters in this document.

Text

(A) the final order in a habeas corpus pro-

ceeding in which the detention complained

of arises out of process issued by a State

court; or

(B) the final order in a proceeding under

section 2255.

(2) Acertificate of appealability raay issue un-

der paragraph (1) only if the applicant has made

a substantiai showing of the denial of a constitu-

tional right.

(3) The certificate of appealability under para-

graph (1) shall indicate which specific issue or is-

sues satisfy the showing required by paragraph (2).

STATEMENT OF THE CASE

Procedural History

On January 19, 2005, Mr. Patti timely filed a motion

to vacate sentence under 28 U.S.C. § 2255. He has filed no

other post-conviction challenge to his conviction or sen-

tence. Mr. Patti sought to be resentenced in light of United

States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005), which

held that the Sentencing Guidelines were no longer

binding and mandatory, but were instead advisory and

were only one of many factors to be considered in fashion-

ing an appropriate sentence. Finding that the Supreme

Court’s holdings in both Booker as well as Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), did not

apply to this case, the Magistrate Judge to whom the

motion was referred concluded that Mr. Patti’s motion

should be summarily dismissed and recommended as such

to the district court. Appendix 5-10.

On February 25, 2005, the district court entered an

order adopting the Report and Recommendation of the

Magistrate Judge over Mr. Patti's objections and summa-

rily denied Mr. Patti’s motion to vacate, set aside or correct

sentence. Appendix 3-4. On March 7, 2005, Mr. Patti filed

a timely notice of appeal, which was transmitted to the

United States Court of Ap eals for the Eleventh Circuit on

March 9, 2005. The court of appeals docketed the case on

March 14, 2005, but delayed any proceedings pending the

district court’s decision as to whether to issue a certificate

of appealability.

Pursuant to the Federal Rules of Appellate Procedure,

the district court construed Mr. Patti’s notice of appeal as

a motion for certificate of appealability. On April 12, 2005,

the district court entered an order denying the motion for

certificate of appealability and holding that Mr. Patti had

not made a substantial showing of the denial of a constitu-

tional right as required by 28 U.S.C. § 2253(c\(2). Appen-

dix 2.

On May 4, 2005, Mr. Patti filed a motion for a certifi-

cate of appealability in the United States Court of Appeals

for the Eleventh Circuit, which was denied on May 23,

2005. See Appendix 1. In denying Mr. Patti’s motion, the

court of appeals held that Mr. Patti had not made a sub-

stantial showing of the denial of a constitutional right as

required by 28 U.S.C. § 2253(c\2) and further noted that

this Court’s ruling in United States v. Booker, 543 U.S. __.,

125 S.Ct. 738 (2005), is not retroactively applicable to

cases on collateral review.

Statement of Facts

On May 31, 2000, a grand jury returned a sealed,

eight-count indictment charging Mr. Patti with tax viola-

tions. On February 21, 2001, a twelve-count superseding

indictment was returned charging. Mr. Patti with six

counts of filing false_ personal income tax returns for the

years 1993 through 1998, in violation of 26 U.S.C.

§ 7206(1), and six counts of filing false corporate tax

returns for his business, Patti Shipyard, Inc., for the years

1993 through 1998, in violation of 26 U.S.C. § 7206(1). On

December 19, 2001, a grand jury returned a twenty-four

count second superseding indictment charging Mr. Patti

with additional offenses of conspiring to avoid the pay-

ment of federal income and FICA taxes in violation of 18

U.S.C. § 371 and eleven counts of failing to pay federal

income and FICA taxes in violation of 26 U.S.C. § 7202

and 18 U.S.C. § 2.

Mr. Patti pleaded guilty to Counts Eight and Thirteen

of the second superseding indictment. Count Eight alleged

that Mr. Patti filed a false 1996 individual income tax

return. Count Thirteen alleged that Mr. Patti conspired to

defraud the United States with regard to the collection

and payment of employment taxes. Absent from the plea

agreement accepted by the district court was any “tax loss”

amount or discussion of any guideline sentencing factor.

The Presentence Investigation Report (“PSR”) pre-

pared by the U.S. Probation Officer, adopting the govern-

ment’s figures, concluded that the total “tax loss”

attributable to Counts One through Twenty-four was

$4,804,588.18, resulting in a base offense level of 21. The

PSR included a number of guideline adjustments — “ob-

struction of justice,” “sophisticated concealment,” and “role

in the offense” — which increased the total offense level to

29.

During a six-day sentencing hearing, the parties

vehemently disputed the question of loss as well as the

applicability of sentencing enhancements involving ob-

struction of justice, sophisticated concealment, and role in

the offense. Mr. Patti also contended that his sentencing

violated Apprendi. Overruling all of Mr. Patti’s objections,

the district court found, using a preponderance of the

evidence standard, that the tax loss was $4,791,267.18

(corresponding to a base offense level of 21) and that Mr.

Patti had engaged in multiple acts of obstruction of justice

(two levels), employed sophisticated concealment (two

levels), and was an organizer or leader (four levels),

resulting in an adjusted offense level of 29. The district

court departed downward by two levels due to the group-

ing of Counts Eight and Thirteen. Thus, the district court

found the total offense level to be 27, which resulted in a

guideline range of 70 to 87 months. The district court

sentenced Mr. Patti to a term of imprisonment of 79

months (36 months as to Count Eight and 43 months as to

Count Thirteen, with such terms to run consecutively).

Pursuant to the sentencing process employed by the

district court, the maximum sentence which Mr. Patti

faced was dramatically increased on the basis of findings

of fact which were neither admitted to by Mr. Patti nor

found by a jury~beyond a reasonable doubt. The district

court chose a sentence in the middle of the guideline

range, but did not consider any lower sentence as coming

within the scope of allowable discretion.

Mr. Patti, thereafter, took a timely appeal to the

United States Court of Appeals for the Eleventh Circuit.

The appeal raised seven issues, most of which concerned

sentencing, including the issue of whether the sentence

violated Apprendi v. New Jersey, 530 U.S. 466 (2000),

given that the Guideline range was in excess of the statu-

tory maximum for Count Eight as well as for Count

Thirteen and consecutive sentences were imposed. The

court of appeals affirmed Mr. Patti's conviction and sen-

tence on July 18, 2003. United States v. Patti, 337 F.3d

1317 (11th Cir. 2003). Mr. Patti did not file a petition for

rehearing, but did petition this Court for certiorari. On

January 20, 2004, the Court denied certioriari, Patti v.

United States, 540 U.S. 1149, 124 S.Ct. 1146 (2004),

making the conviction final as of that date. Clay v. United

States, 537 U.S. 522 (2003).

Following sentencing by the district court, Mr. Patti

surrendered to the custody of the Federal Bureau of

Prisons on August 12, 2002, and has been incarcerated

since that time at the Federal Medical Center in Fort

Worth, Texas. Unless earlier reduced, his 79-month term

will expire, less good conduct time as calculated by the

Federal Bureau of Prisons, on January 4, 2008.

REASONS FOR GRANTING

A WRIT OF CERTIORARI

This Court should issue a writ of certiorari for the

following two reasons:

1. Petitioner made a substantial showing that he

has been denied a constitutional right as a re-

sult of Booker and therefore, should have been

issued a certificate of appealability.

A. This Court Has Not Addressed the Funda-

mentally Important Question of Retroac-

tive Application of Booker to Cases on

Collateral Review Which Became Final Af-

ter Apprendi and Ring.

The United States Court of Appeals for the Eleventh

Circuit, like a number of other lower courts, rushed to find

that this Court’s decision in United States v. Booker, 543

U.S. __, 125 S.Ct. 738 (2005), does not apply retroactively

to § 2255 cases. See Varela v. United States, 400 F.3d 864,

868 (llth Cir. 2005) (sentence became final before this

Court’s decision in Apprendi); see also Bey v. United States,

399 F.3d 1266 (10th Cir. 2005) (sentence became final

before this Court’s decision in Apprendi), Green v. United

States, 397 F.3d 101 (2d Cir. 2005) (sentence became final

before this Court’s decision in Apprendi); McReynolds v.

United States, 397 F.3d 479 (7th Cir. 2005).’ However, this

Court has not expressly determined that Booker does not

apply to cases on collateral review. Rather, Booker was

confined to cases on direct review: “We must apply today’s

holdings ~ both the Sixth Amendment and our remedial

interpretation of the Sentencing Act — to all cases on direct

review.” Booker, 125 S.Ct. at 769.

' Although the defendant’s sentence in McReynolds did not become

final until after this Court’s decision in Apprendi and Ring, the decision

in that matter should be given limited consideration. The appeal was

litigated pro se and was submitted without argument. Furthermore, the

briefs filed by the appellant did not analyze the Teague v. Lane, 489

U.S. 288 (1989), issue in any significant fashion.

Moreover, this Court has not held that Booker has no

retroactive application to cases on collateral review. As

observed by the United States Court of Appeals for the

Tenth Circuit in Bey: “The Court decided Booker on direct

appeal and did not expressly declare, nor has it since

declared, that Booker should be applied retroactively to

cases on collateral review.” Bey, 399 F.3d at 1269. As the

United District Court for the District of Oregon observed

in United States v. Siegelbaum, 359 F. Supp.2d 1104 (D.

Ore. 2005), “existing precedent does not definitively

answer whether the rule announced in Blakely/Booker

applies retroactively [to collateral proceedings].”

More specifically, this Court has not determined

whether the decision in Booker was merely an application

of the rule created in Apprendi and Ring. As discussed in

more detail below, while Mr. Patti was indicted before

Apprendi v. New Jersey, 530 U.S. 466 (2000), was decided,

he had not yet been sentenced when this Court issued its

ruling in Ring v. Arizona, 536 U.S. 584 (2002). Thus, his

conviction became final after Ring but before Blakely.

Should this Court determine that Booker was merely

applying the rule established in Apprendi and Ring, it

would implicitly follow that the decision in Booker would

be applicable to any case on collateral review in which the

petitioner’s sentence did not become final until after

Apprendi or Ring was decided.

This Court should grant further review to provide the

“definitive answer” as to whether Booker applies to such

cases.

B. Booker Should Be Applied Retroactively to

Cases on Collateral Review Which Were Not

Final Until After Apprendi and Ring.

Contrary to the court of appeals’ conclusion, Mr. Patti

should be entitled to the benefit of Booker’s subsequently-

announced application of Apprendi for several reasons.

First, Mr. Patti’s case was pending on direct appeal until

January 20, 2004. He is therefore entitled to invoke, under

Teague v. Lane, 489 U.S. 288 (1989), any “new rule” of

constitutional criminal procedure which was declared

prior to that date.’ That would include any rule announced

in either Apprendi or Ring. Second, even if a Teague

inquiry were conducted, the burden-of-proof aspects of the

holdings of Booker, Blakely, and Apprendi are substantive

rulings and hence exempt from the Teague rule - even

though the decision-maker aspect of the holding in Ap-

prendi is not. See Schriro v. Summerlin, 542 U.S. 348, 124

S.Ct. 2519, 2522 (2004) (discussing Ring). Further, even if

a Teague inquiry were conducted, the burden-of-proof

holdings of Booker, Blakely, and Apprendi are watershed

rulings and hence exempt from the Teague rule for that

additional reason.’

* The Teague doctrine holds that new, judge-made rules of consti-

tutional criminal procedure are not applicable to cases that became

final before the rule is announced, unless the rule decriminalizes

certain conduct or prohibits the imposition of certain types of punish-

ment for a class of defendants, or constitutes a watershed rule of

criminal procedure. /d. at 310-12.

* Mr. Patti does not concede that Teague applies fully to § 2255

motions. This Court continues to emphasize how “the 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, 124 S.Ct. 2504, 2511 (2004). Comity plays no role

in § 2255 jurisprudence. Even assuming that Teague governs his effort

(Continued on following page)

As such, Mr. Patti respectfully submits that the court

of appeals erred in finding that the Booker decision does

not apply retroactively to cases on collateral review and

that Booker did not create a new substantive change in the

law. Alternatively, Mr. Patti maintains that Booker created

a “watershed” rule and should be applied to cases on

collateral review which were not final until after Apprendi

and Ring.

1. Mr. Patti Does Not Invoke Any “New”

Rule.

While Mr. Patti was indicted before Apprendi was

decided, he had not yet been sentenced when the Supreme

Court issued its ruling in Ring. His conviction then “be- |

came final” several months before the decision in Blakely.

A “case announces a new rule if the result was not dictated

by precedent existing at the time the defendant’s convic-

tion became final.” Teague, 489 U.S. at 301. Thus, if the

“rule” Mr. Patti relies on was “new)* announced” in either

Apprendi or Ring, it applies to his case without any Teague

inquiry at all; if in Blakely or Booker, then a Teague

analysis is required.

The correct starting point for this analysis is to

recognize that either Apprendi or Ring are the key, new

cases upon which Mr. Patti’s argument depends. The

courts of appeals have uniformly decided that Apprendi

announced a “new rule” in the Teague sense. See, e.g.;

McCoy v. United States, 266 F.3d 1245, 1256 (11th Cir. 2001)

(“Apprendi established a new rule of criminal procedure, one

to obtain a lawful sentence under federal law, the rule Mr. Patti seeks

to invoke is available to him as a basis for collateral relief.

15 :

that was not dictated by precedent existing before the

Apprendi decision was released.”), cert. denied, 536 U.S. 906

(2002). By the time the concept of “statutory maximum” as

used in Apprendi was clarified — as if it had not been clear

enough from Apprendi itself - in Ring, to include tiered

sentencing levels for the same offense, depending upon

proof of additional, aggravating facts, guideline sentencing

under the mandatory rule of § 3’.53(b) was doomed. The

rule applied in Booker, which was presaged six months

earlier by Blakely, is not a “new rule,” but an obvious

application of the new rule announced in Apprendi, as

explicated in Ring.

The Blakely decision itself begins by stating:

This case requires us to apply the rule we ex-

pressed in Apprendi v. New Jersey, 530 U.S. 466,

490 (2000): “Other than the fact of a prior convic-

tion, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a

reasonable doubt.”

Blakely, 124 S.Ct. at 2536. Similarly, the Booker decision

begins, “We hold that both courts [below] correctly con-

cluded that the Sixth Amendment as construed in Blakely

does apply to the Sentencing Guidelines.” Booker, 125

S.Ct. at 746. Justice Breyer’s four-justice dissent from the

constitutional holding of Booker acknowledges that

“Blakely purports to follow, not to extend, Apprendi.” Id. at

806. In both Booker and Blakely, in other words, the Court

itself recognized that it was taking the rule previously

developed in June 2000 in Apprendi, and not changing it

but simply “applyling]” it, directly and without expansion

or extension, to a new factual situation under other

statutory schemes.

As Justice Scalia wrote for the majority in Blakely:

“Our precedents make clear, however, that the ‘statutory

maximum’ for Apprendi purposes is the maximum sen-

tence that a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the

defendant.” Blakely, 124 S.Ct. at 2537. Justice Scalia, and

the four justices who joined his Blakely opinion, thus did

not appear to believe that Blakely created a “new rule.”

Moreover, Blakely was at least dictated by Ring, if not by

Apprendi itself. And Mr. Patti’s conviction became final

more than a year after Ring was decided.

In any event, the question here is not whether the

Blakely decision sets forth a new rule, but whether the

constitutional holding of the Booker decision is a direct

application of Apprendi and/or Ring, with at most an

unexpected practical result: the invalidation of the section

of the Sentencing Reform Act which made the guidelines

mandatory. The Booker case did not announce a new rule

of constitutional law; at most, it applied the rule set forth

in Apprendi and Ring, through application of principles of

statutory construction and federal severance doctrine, to

the Sentencing Reform Act.

The application of the Booker ruling to this case does

not present a retroactivity problem because both Apprendi

and Ring, announced in June 2000 and June 2002, respec-

tively, were the law of the land before Mr. Patti’s convic-

tion became final in January 2004. It was in Apprendi that

this Court explained that the Sixth Amendment estab-

lished limits on the imposition of a sentence based on facts

which were neither found by a jury nor determined beyond

a reasonable doubt. Furthermore, the Ring decision made

clear that what mattered was not the form of the “finding,”

but the real effect of a given finding on the defendant's

sentence. Ring, 536 U.S. at 604. The Ring decision explic-

itly cautioned against placing “form over substance.” Jd.

Moreover, Ring showed that on a two-tiered maximum

penalty array for one offense, the lower tier was itself a

“statutory maximum,” as under the Guidelines. What was

left undecided, at most, was whether the “maximum” each

guideline range established was “statutory” in nature. But

to answer that question did not require any “new rule” of

constitutional law; it merely required a plain reading of

the Sentencing Reform Act and, in particular, the impact

of 18 U.S.C. §§ 3553(b) and 3742(e).

The Blakely decision also notes that Ring did not

establish a new rule post-dating Apprendi, but instead

was itself a straightforward application of Apprendi: “In

Ring v. Arizona, 536 U.S. 592-593 and n.1 (2002), we

applied Apprendi to an Arizona law that authorized the

death penalty if the judge found one of ten aggravating

factors.” Blakely, 124 S.Ct. at 2537. Thus, Blakely again

recognized that the seminal new rule case was Apprendi,

and that both Ring and Blakely were mere applications of

that June 2000 ruling.

Examination of the various Blakely and Booker

opinions shows that the dissenters did not seriously claim

that the rule of Apprendi, as applied in Ring, did not

inexorably lead to those later decisions. The dissenters

were, in reality, simply continuing to disagree with the

majority decision in Apprendi itself. Blakely, 124 S.Ct. at

2543 (O’Connor, J., dissenting) (noting that those who

subscribe to the Blakely majority's analysis are “residents

of ‘Apprendi-land’”); Blakely, 124 S.Ct. at 2550 (Breyer, J.,

dissenting) (“The Court makes clear that it means what it

said in Apprendi v. New Jersey, 530 U.S. 466 (2000).”).

Similarly, Justice O’Connor recognized, citing Teague’s

“dictated by precedent” test, that the Blakely decision

would be applied to al] those defendants whose cases were

still pending on direct appeal at the time of Apprendi — not

just those with appeals pending at the time of Blakely.

Blakely, 124 S.Ct. at 2549 (dissent). The elaboration of

federal sentencing requirements set forth in Booker

therefore applies to Mr. Patti. The remedial portion may

be new (severing the statute), but the constitutional rule

on which it relies - which is what matters under Teague —

is not “new” for retroactivity purposes. Thus, the Teague

doctrine is inapplicable.

2. The Court’s Decision in Booker Should

Be Applied Retroactively to Cases on

Collateral Review Because It Is a Sub-

stantive, Not Procedural Rule.

Even if the “rule” announced in Booker - or even in

Blakely —- were deemed to be “new” in that case, Teague

would still not govern. In Teague, this Court ruled that

new constitutional rules of criminal procedure are not

retroactively applicable to cases on collateral review

unless they meet one of two narrow exceptions. In contrast

to procedural rules, however, new rules of substantive law

are not subject to Teague. Substantive rules may be

retroactively applied to cases on collateral review. See

Summerlin,124 S.Ct. at 2522-23; Bousley v. United States,

523 U.S. 614, 620-21 (1988). Thus, the restrictions devel-

oped in Jeague apply only to new procedural rules, not to

new substantive rules. Bousley, 523 U.S. at 619-20 (“be-

cause Teague by its terms applies only to procedural rules,

we think it is inapplicable to the situation in which this

Court decides the meaning of a criminal statute enacted

by Congress.”).

Under this structure, the Apprendi doctrine, as

applied to guidelines sentencing, has procedural elements

(notice in the charging instrument, decision by jury rather

than judge), but its heart is substantive — an elevation on

constitutional grounds of the burden of proof. Moreover,

the remedial aspect announced in Booker is also substan-

tive — an expansion in the scope of the sentencing court’s

discretion, albeit an expansion designed to remove the

condition for viewing the top of each guideline range as a

“statutory maximum.” In Summerlin, the Court held that

the aspect of Apprendi which requires certain facts to be

found by a jury rather than by a judge was procedural, not

substantive, and hence, Teague applied and barred retro-

active application of Ring to findings o: aggravating

factors in a death penalty case when raised in a petition

for writ of habeas corpus. But the Summerlin Court

expressly reserved the question of whether the beyond-a-

reasonable doubt requirement of Apprendi would be fully

retroactive in federal habeas corpus proceedings. Blakely,

124 S.Ct. at 2522 n.1. The issue was not before the Court

in Summerlin, because the Arizona laws at issue there

already mandated that judges find aggravating circum-

stances in death penalty cases by that more stringent,

beyond-a-reasonable doubt standard.

This case concerns the other half of the Apprendi

decision - the burden of proof. The controlling cases are

those concerning whether changes in the burden of proof

are substantive, and whether changes in the burden of

proof favorable to the defendant apply retroactively. In

this regard, other post-7Jeague burden of proof cases apply

changes in the burden of proof retroactively. See, e.g.,

Gaines v. Kelly, 202 F.3d 598, 601-05 (2d Cir. 2000).

Similarly, the line of pre-Teague cases considering changes

in the burden of proof have also held that such changes

are so essential to accurate fact-finding that they must be

applied retroactively. Thus, Jn re Winship, 397 U.S. 358

(1970), was held retroactive in Jvan V. v. City of New York,

407 U.S. 203 (1972), and Mullaney v. Wilbur, 421 U.S. 684

(1975), was held retroactive in Hankerson v. North Caro-

lina, 432 U.S. 233 (1977). These cases compel the conclu-

sion thai the Apprendi/Ring change in the burden of proof

is substantive.

As ‘such, Booker’s remedial holding is substantive

because it “alters the range of conduct [and] the class of

persons that the law punishes.” Summerlin, 124 S.Ct. at

2523. Booker’s repeal of the mandatory sentencing rules

alters a defendant’s substantive rights by placing certain

conduct and groups of persons outside the power of the

guidelines to require mandatory punishment. Therefore, the

ruling is substantive regardless of the fact that a defendant

could receive the same sentence before and after Booker. See

also Lindsey v. Washington, 301 U.S. 397, 100-02 (1937).

3. Alternatively, Booker and Blakely Impli-

cate Fundamental Fairness Under Teague’s

Second Exception for Watershed Rulings.

Alternatively, Mr. Patti maintains that Booker created

a “watershed” rule. In Teague, the Court recognized an

exception to its rule prohibiting the retroactive application

of new constitutional rules of criminal procedure for

“watershed” decisions critical to the fundamental fairness

and accuracy of the criminal process. Teague, 489 U.S. at

311. If it does not hold that Booker states a substantive

new rule, this Court should hold that Booker and Blakely

created “watershed” new rules applicable to this case on

collateral review.

In Summerlin, this Court ruled that Ring was not a

watershed ruling that could be retroactively applied to

cases on collateral review. In Ring, the Court applied

Apprendi to require jury findings of aggravated facts

supporting a death sentence, but the only issue in that

case involved the identity of the fact-finder since the

statute at issue there already required the judge to make

findings of aggravated facts supporting death beyond a

reasonable doubt. Ring, 536 U.S. at 597, 609. Summerlin

involved the finder of fact but not the standard of proof.

Summerlin, 124 S.Ct. at 2522 n.1. Writing for the majority,

Justice Scalia stated in Summerlin that “[t}he right to jury

trial is fundamental to our system of criminal procedure.”

Id. at 2526. As the dissenting justices note, “(t]he majority

does not deny that Ring meets the first criterion of Teague,

that its holding is ‘implicit in the concept of ordered

liberty.” Id. The Court declined to find retroactivity

instead on a secondary inquiry involving accuracy, explain-

ing that the question was not whether juries or judges

were more accurate finders of fact, but “whether judicial

factfinding so ‘seriously diminishles]’ accuracy that there is

an ‘impermissibly large risk’ of punishing conduct the law

does not reach.” Summerlin, 124 S.Ct. at 2525 (quoting

Teague, 312-13).

In contrast to Ring, Blakely’s application to the

federal Sentencing Guidelines requires jury findings

beyond a reasonable doubt. This Court explained the

crucial nature of this right in Jn re Winship:

The reasonable-doubt standard plays a vital rule

in the American scheme of criminal] procedure. It

is a prime instrument for reducing the risk of

conviction” resting on factual error ... “{A] per-

son accused of a crime ... would be at a severe

disadvantage, a disadvantage amounting to a

lack of fundamental fairness, if he could be ad-

judged guilty and imprisoned for years on the

strength of the same evidence as would suffice in

a civil case.”

* * >”

“There is always in litigation a margin of error,

representing error in factfinding, which both par-

ties must take into account. Where one party has

at stake an interest of transcending value — as a

criminal defendant his liberty — this margin of

error is reduced as to him by the process of plac-

ing on the other party the burden of persuading

the factfinder at the conclusion of the trial of his

guilt beyond a reasonable doubt. Due process

commands that no man shall lose his liberty

unless the Government has borne the burden

of... convincing the factfinder of his guilt.” To

this end, the reasonable doubt standard is indis-

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

necessity of reaching a subjective state of certi-

tude of the facts in issue.”

In re Winship, 397 U.S. at 363-64 (citations omitted).*

Similarly, in Cage v. Louisiana, 498 U.S. 39, 41 (1990),

citing Winship, this Court described the reasonable doubt

standard as “a prime instrument for reducing the risk of

convictions resting on factual error.” In Sullivan v. Louisi-

ana, 508 U.S. 275, 279-80 (1993), the Court held that the

failure to give a proper reasonable doubt instruction

was equivalent to denial of the right to jury trial. “[Tlo

* This Court applied Winship to habeas corpus proceedings in

Jackson v. Virginia, 443 U.S. 307, 320-24 (1979) (explaining applicabil-

ity of doctrine on collateral review).

hypothesize a guilty verdict that was never in fact ren-

dered — no matter how inescapable the findings to support

that verdict might be — would violate the jury-trial guar-

antee.” Id. at 279. Accordingly, the Court found that error

in failing to instruct the jury correctly about reasonable

doubt could never be harmless and constitutes structural

error. Id. at 280-81.

Imposing a sentence based on potentially inaccurate

factual findings is equally as important as upholding a

conviction based on such findings. This is particularly true

given the fact that sentence enhancements under the

guidelines can double, triple, or quadruple a sentence or

even increase a sentence by a multiplier of more than 30.

Booker, 125 S.Ct. at 752 (citing examples). If sentencing

facts must be proven beyond a reasonable doubt to a jury,

they are indistinguishable from elements of the offense.

Here, the imposition of sentence enhancements based on a

preponderance of the evidence creates “an impermissibly

large risk” that an individual “innocent” of conduct on

which the sentence enhancements are based would receive

a significantly longer term of imprisonment. 7eague, 489

U.S. at 312.

4. The Due Process Clause Requires Retro-

active Enforcement.

Federal due process law should also compel the

conclusion that Booker must. apply retroactively. The

Supreme Court requires that new constructions of the

elements of offenses must apply retroactively. Fiore *v.

White, 531 U.S. 225 (2001). After Apprendi, the circuit

courts have acknowledged that aggravating sentencing

factors are now akin to pre-existing elements. See, e.g.,

United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en

banc). Fiore stands for the somewhat unexceptional

principle that a person cannot be convicted of and pun-

ished for a crime if its critical elements are not proven

beyond a reasonable doubt. Fiore, 531 U.S. at 228 (citing

Jackson v. Virginia, 443 U.S. 307, 316 (1979), and In re

Winship, 397 U.S. at 364); see also Bunkley v. Florida, 538

U.S. 835 (2003) (per curiam).

The Booker decision, too, is a substantive one. Booker

transformed the Sentencing Guidelines from a mandatory

rule of decision under 18 U.S.C. § 3553(b) to an advisory

factor under § 3553(a)(4). Formerly, a sentencing court was

obliged to impose a sentence within the applicable guide-

line range unless the defendant could meet the limited and

stringent requirements for a downward (or upward)

departure. 18 U.S.C. § 3553(b). Now, however, a sentenc-

ing court is instructed to impose a sentence that comports

with the principles enunciated in 18 U.S.C. § 3553(a).

Such a sentence is one “not greater than necessary” yet

still “sufficient” to achieve the statutory goals, which

include reflecting the seriousness of the offense, promoting

respect for the law, providing just punishment, affording

adequate deterrence, protecting the public, and providing

the defendant with the most effective manner of correc- .

tional treatment. 18 U.S.C. § 3553(a). That sentence is not

necessarily the guideline sentence. In contrast, the factors

set forth in § 3553(a) previously could be considered only

in selecting a sentence within mandatory guidelines.

Departures were limited to narrow grounds and a large

number of matters, including the defendant’s social and

personal history, age, and health, were largely precluded

as bases for departure. As such, the transformation of the

guidelines into an advisory system works a substantive

alteration in federal sentencing law in terms of the sen-

tence outside the guidelines.

For all of these reasons, the constitutional rule an-

nounced in Apprendi and clarified in Ring, as applied to

federal sentencing under the Guidelines in Booker, should

be held applicable to cases on collateral review which

became final after Apprendi and Ring.

2. The court of appeals applied the wrong legal

standard to Petitioner’s request for a certificate

of appealability (“COA”) seeking permission to

appeal the district court’s summary denial of his

motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255. The court of appeals

converted the COA process into the appeal itself

in clear violation of the text and purpose of

§ 2253(c), and applied the standard for granting

a COA in a way that conflicts with the relevant

precedent established by this Court.

Section 2253(c)(1) of Title 28, United States Code,

provides that “[uJnless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken to

the court of appeals from ~ (B) the final order in a proceed-

ing under section 2255.” Section 2253(c\2) further pro-

vides that a COA “may issue ... only if the applicant has

made a substantial showing of the denial of a constitu-

tional right.” In denying Petitioner’s request for a COA,

the court of appeals misconstrued the standard, as estab-

lished by this Court, for granting a COA.

In construing 28 U.S.C. § 2253(c)(2), this Court has

explained that the petitioner must show “reasonable

jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’” See Miller-El

v. Cockrell, 537 U.S. 322, 335-36 (2003) (citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000), Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1983)). That is, a COA must issue

where the petitioner “demonstrate[s] that reasonable

jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack, 529 U.S.

at 484. Here, in denying Petitioner a COA, the court of

appeals focused not on whether “reasonable jurists could

debate whether” the district court should have found for

Petitioner, but on its own conclusion that Petitioner’s

claim lacked merit. Such analysis is clearly prohibited by

this Court’s interpretation of 28 U.S.C. § 2253(c)(2).

The plain language of the statute, which is necessarily

the starting point of the analysis, see Williams v. Taylor,

529 U.S. 420, 431 (2000), makes clear that entitlement to

a COA turns not on whether a petitioner can establish

ultimate entitlement to relief prior to appeal, but on

whether he can make a “substantial showing of the denial

of a constitutional right” so as to warrant permitting him

to appeal. See 28 U.S.C. 4§2253(c)(2). Furthermore, in

seeking a certificate of appealability, a petitioner’s enti-

tlement to pursue an appeal is not conditioned on persuad-

ing the appellate court, in advance, that the appeal must

ultimately prevail. See Miller-El, 537 U.S. at 335-36. In

fact, the Eleventh Circuit has noted a court is neither

required nor permitted to make a full consideration of the

factual and legal merits of the claims raised by the Peti-

tioner in determining whether to issue a COA. See Gon-

zalez v. Sec’y for the Dep't of Corr., 366 F.3d 1253, 1267

(11th Cir. 20°14). Instead, “[t]he question [in considering a

motion for a certifitate of appealability] is the debatability

of the underlying constitutional claim, not the resolution

of that debate.” See Miller-El, 537 U.S. at 1042; see also

Slack, 529 U.S. at 482 (describing the analysis as to

whether to grant a certificate of appealability as a

“threshold inquiry”).

As such, one court’s determination that a petitioner’s

underlying claim lacks merit is insufficient, without more,

to establish that a COA should not issue. Instead, entitle-

ment to a COA turns simply on whether the petitioner’s

claim is sufficiently plausible that it “deserve(s] encour-

agement to proceed further.” Were that not the case, only

those petitioners who ultimately prevail on appeal would

be allowed to pursue an appeal in the first place, and the

COA process would be converted, paradoxically, into the

appeal itself.

Here, in its order denying Mr. Patti’s request for a

certificate of appealability, the court of appeals noted that

this Court’s ruling in Booker is not retroactively applied to

cases on collateral review. See Appendix 1. As such, the

court of appeals focused on and rejected the merits of the

legal arguments raised by Mr. Patti in support of his

§ 2255 motion and then summarily concluded, on that

basis and without any additional analysis, that Petitioner

had not made the requisite “substantial showing” for a

COA. As noted above, such an approach cannot be recon-

ciled with the text or purpose of the statute and was

clearly beyond the analysis permitted by this Court’s

interpretation of § 2253. The court of appeals thus clearly

erred in basing its denial of a COA on its own finding,

without more, that the underlying claim lacked merit.

For this reason as well, the writ should be granted.

CONCLUSION

Based upon the foregoing petition, the Court should

grant a writ of certiorari to the United States Court of

Appeals for the Eleventh Circuit.

Respectfully submitted,

BLANK ROME LLP

LAN M. COMISKY

One Logan Square

Philadelphia, PA 19103

(215) 569-5646

(215) 832-5646 (facsimile)

icomisky@blankrome.com

Attorneys for Frank M. Patti, Sr.

September 23, 2005

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 05-11347-A

FRANK M. PATTI, SR.,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

. Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Florida

(Filed May 23, 2005)

ORDER:

Appellant’s motion for a certificate of appealability is

DENIED because appellant has failed to make a substan-

tial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2). The U.S. Supreme Court’s ruling in

United States v. Booker, 543 U.S. 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), is not retroactively applicable to cases

on collateral review. Varela v. United States, 400 F.3d 864,

868 (11th Cir. 2005).

/s/ Stanley F. Birch, Jr.

UNITED STATES

CIRCUIT JUDGE

App. 2

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF

AMERICA CASE NO: 3:00cr44/LAC

a, 3:05ev15/LAC/MD

FRANK M. PATTI, SR.

ORDER

The defendant has filed a notice of appeal (doc. 575)

and a motion for certificate of appealability (doc. 576) of

the order entered on February 25, 2005. Unless a certifi-

cate of appealability is issued, the defendant may not take

an appeal from the final order denying section 2255 relief.

See 28 U.S.C. 2253(c 1B). Such a certificate may issue

“Only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

Because the defendant has not made a substantial

showing of the denial of a constitutional right, and for the

reasons set forth in this court’s order of February 25, 2005,

a certificate of appealability is DENIED.

DONE AND ORDERED this 12th day of April, 2005.

s/ L.A. Collier

LACEY COLLIER

SENIOR UNITED STATES

DISTRICT JUDGE

App. 3

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF

AMERICA CASE NO: 3:00cr44/LAC

vs 3:05ev15/LAC/MD

FRANK M. PATTI, SR.

JUDGMENT

Pursuant to and at the direction of the Court, it is

ORDERED AND ADJUDGED that the defendant take

nothing and that the motion to vacate, set aside or correct

sentence is summarily DENIED.

WILLIAM M. McCOOL,

CLERK OF COURT

DATE Deputy Clerk

Entered On Docket: 2/25/2005 By: cbj

Rules 58 & 79(a) FRCP or 32(d\(1) &

55 FRCRP

Copies mailed to: Hensel, Comisky

App. 4

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF

AMERICA CASE NO: 3:00cr44/LAC

vs. 3:05¢ev15/LAC/MD

FRANK M. PATTI, SR.

ORDER

Upon consideration of the Report and Recommenda-

tion of the Magistrate Judge filed on February 9, 2005,

pursuant to 28 U.S.C. § 636(b)(1)(B), and after reviewing

objections to the Recommendation, the Recommendation is

adopted as the opinion of the Court.

Accordingly, it is ORDERED:

The motion to vacate, set aside or correct sentence

(doc. 569) is summarily DENIED.

DONE AND ORDERED this 25th day of February,

2005.

s/ L.A. Collier

LACEY A. COLLIER

SENIOR UNITED STATES

DISTRICT JUDGE

App. 5

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF

AMERICA 3:00cr44/LAC

vs. 3:05cev15/LAC/MD

FRANK M. PATTI, SR.

REPORT AND RECOMMENDATION

This matter is before the court upon an amended

motion to vacate, set aside, or correct sentence pursuant to

28 U.S.C. §2255 (doc. 569). Rule 4(b) of the Rules Govern-

ing Section 2255 Proceedings provides in part that “[iJf it

plainly appears from the face of the motion and any

annexed exhibits and the prior proceedings in the case

that the movant is not entitled to relief in the district

court, the judge shall make an order for its summary

dismissal and causes the movant to be notified.” After a

review of the record, it is the opinion of the undersigned

that the instant motion should be summarily dismissed.

Defendant pleaded guilty to one count of filing a false

personal tax return and one count of conspiracy to avoid

payment of federal income and FICA taxes in exchange for

dismissal of all other counts against him. His conviction

and sentence were affirmed on July 18, 2003, the Supreme

Court denied his request for a petition for certiorari on

January 20, 2004 and the original § 2255 petition was

timely filed on January 19, 2005. In the instant motion,

defendant raises a single ground for relief and requests

App. 6

that he be resentenced in accordance with the Supreme

Court's recent decision in United States v. Booker.’

In Apprendi v. New Jersey,’ the Supreme Court held

that, “lojther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the pre-

scribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” 530 U.S. at 490,

120 S.Ct. at 2362-63. See also Ring v. Arizona, 536 US.

584, 589, 122 S.Ct. 2428, 2432, 153 L.Ed.2d 556 (2002)

(concluding under Apprendi that “[clapital defendants .. .

are entitled to a jury determination of any fact on which

the legislature conditions an increase in their maximum

punishment.”). Since Apprendi was decided, the Supreme

Court has decided two cases that relate to federal sentenc-

ing, Blakely v. Washington,’ and United States v. Booker.

As clarified in Blakely:

the “statutory maximum” for Apprendi purposes

is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant. See Ring,

supra, 536 U.S. at 602, 122 S.Ct. at 2428 (“‘the

maximum he would receive if punished according

to the facts reflected in the jury verdict alone’”

(quoting Apprendi, supra, 503 US. at 483, 120

S.Ct. at 2348)).... In other words, the relevant

“statutory maximum” is not the maximum sen-

tence a judge may impose after finding additional

' United States v. Booker, 125 S.Ct. 738, 2005 WL 50108 (2005).

* Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63,

147 L.Ed 2d 435 (2000).

* Blakely v. Washington, __ U.S. __, 124 S.Ct. 2531, 159 L.Ed. 2d

403 (2004)

App. 7

facts, but the maximum he may impose without

any additional findings.

124 S.Ct. at 2537-38 (emphasis in original, some citations

omitted); see also In re Dean, 375 F.3d 1287, 1290 (11th

Cir. 2004) (quoting Blakely).

In United States v. Booker, 125 S.Ct. 738, 2005 WL

50108 (2005), the Supreme Court extended its holding in

Blakely to the Sentencing Guidelines, holding that the

mandatory nature of the federal guidelines rendered them

incompatible with the Sixth Amendmeat’s guarantee to

the right to a jury trial. This does not mean, however, that

Booker can be applied to cases in which the conviction is

final, a fact which is crucial to the court’s consideration of

the instant motion. Both language within Booker, dis-

cussed infra, and Supreme Court precedent indicate

otherwise.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444,

20 L.Ed.2d 491 (1968) the Supreme Court held that the

Sixth Amendment’s guarantee of the right to a jury trial

applied to the states. In DeStephano v. Woods, 392 US.

631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) the Court held

that Duncan would not be given retroactive applicatior -

that it applied only to those cases that were not final at

the time it was decided, and that it did not apply to cases

on collateral attack. The Court reasoned that the right to a

jury trial was fundamental to our system of justice, but

that a trial without a jury would not necessarily result in

an inaccurate verdict. Therefore, it would not be necessary

to grant a new trial to every person convicted without a

jury.

In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153

L.Ed.2d 556 (2002) the Supreme Court held that only a

App. 8

jury, not a judge, could make findings on the aggravating

factors necessary to invoke the death penalty. In Schriro v.

‘Summerlin, __ U.S. __, 124 S.Ct. 2519,-159 L.Ed.2d 442

(2004) the Court held that Ring applied only to those cases

that were not final at the time it was decided, and that it

did not apply to cases on collateral attack. The Court

reasoned that the rule announced in Ring was a proce-

dural rule, not a substantive one, because it did not define

an element of a crime. Rather, it determined the manner

in which fact finding is done. The Schriro Court relied on

DeStephano, supra, noting that “lif ... a trial held en-

tirely without a jury was not impermissibly inaccurate, it

is hard to see how a trial in which a judge finds only

aggravating factors could be.” 124 S.Ct. at 2526.

This is instructive on the application of Booker. The

Booker Court expressly noted that its holding was to be

applied retroactively to “all cases ... pending on direct

review or not yet final.” Booker at *29. It did not announce

that the new rule would apply retroactively for cases on

coliatera] attack, such as this one. This reasoning neces-

sarily follows from DeStephano and Schriro. In those cases

the court held that it was not impermissibly inaccurate to

conduct a criminal trial entirely without a jury, nor for a

judge alone to find aggravating factors necessary to trigger

a death sentence. Based on those holdings, it is difficult to

conclude that a hearing in which a judge finds only aggra-

vating factors that result in an increased sentence could be

impermissibly inaccurate. See Schriro, 124 S.Ct. at 2526.

Moreover, the Booker Court cited prior precedent with

approval, stating that “(T]he constitutional safeguards

that figure in our analysis concern not the identity of

the elements defining criminal liability but only the

required procedures for finding the facts that determine

App. 9

the maximum permissible punishment.” Booker, 2005 WL

50108 at *14 (citations omitted). The significance of this is

that unlike substantive rules, new rules of procedure

generally are not retroactive. Schriro v. Summerlin, __

U.S. __, 124 S.Ct. 2519, 2523, 2526, 159 L.Ed.2d 442

(2004) (“([I]t does not follow that, when a criminal defen-

dant has had a full trial and one round of appeals in which

the State faithfully applied the Constitution as we under-

stood it at the time, he may nevertheless continue to

litigate his claims indefinitely in hopes that we will one

day have a change of heart.”).

Finally, the Eleventh Circuit has concluded that

neither Booker nor Blakely applies retroactively to cases

on collateral review. See Jn re Anderson, _ F.3d ___, 2005

WL 123923 (llth Cir. 2005) (holding that only the Su-

preme Court can make a new rule retroactive on collateral

review, and that it must do so explicitly). This defendant

has had his full trial and one round of appeals. Since

Booker’s effect on sentencing guidelines cases is not

retroactive on collateral review, it is not applicable to this

§ 2255 motion, and defendant is not entitled to relief on

this ground.

Based on the foregoing, it is respectfully RECOM-

MENDED:

The amended motion to vacate, set aside, or correct

sentence (doc. 569) be summarily DENIED.

At Pensacola, Florida, this 9th day of February, 2005.

/s/ Miles Davis

MILES DAVIS

UNITED STATES

MAGISTRATE JUDGE

App. 10

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommen-

dations must be filed within ten days after being served a

copy thereof. A copy of objections shall be served upon all

other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636;

United States v. Roberts, 858 F.2d 698, 701 (llth Cir.

1988).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.