# Petition for Writ of Certiorari — Patti v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0254%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 546 U.S. 1033 ## Text 6 (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. 7 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. 8 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 9 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. 10 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: 11 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. 12 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. 13 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) 14 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. 16 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 17 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).”). 18 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.”). 19 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 20 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. 21 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 22 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). 23 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., 24 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 \ 25 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 26 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 27 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. ¢ 28 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0254%3A1. Public record. Not legal advice.