# Appendix — Valentine v. United States (No. 07-1426)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1470%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JIMMY RAY VALENTINE (04-2116); KENNETH
JEROME VALENTINE (05-1877),

Petitioners-Appellants,
V. Nos. 04-2116; 05-1877

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Michigan at Grand
Rapids.

Nos. 99-00001; 05-00004—Richard A. Enslen,
District Judge.

Argued: October 26, 2006
Decided and Filed: May 14, 2007
Before: MARTIN and COOK, Circuit Judges;
BUNNING, District Judge.”

* The Honorable David L..Bunning, United States District Judge
for the Eastern District of Kentucky, sitting by designation.

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COUNSEL

ARGUED: Jennifer L. Swize, JONES DAY,
Washington, DC, Timothy M. Holloway, Taylor,
Michigan, for Appellants. Phillip J. Green,
ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee. ON BRIEF:
Jennifer L. Swize, Lawrence D. Rosenberg, JONES
DAY, Washington, DC, Timothy M. Holloway, Taylor,
Michigan, for Appellants. Brian -K:. Delaney,
ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee.

COOK, J., delivered the opinion of the court, in
which BUNNING, DJ., joined. MARTIN, J. (pp.

14-24), delivered a separate opinion concurring in part
and dissenting in part.

OPINION

COOK, Circuit Judge. Jimmy Ray and Kenneth
Valentine were convicted of conspiring to possess and
distribute cocaine powder and crack cocaine. They
now raise numerous challenges to their convictions
pursuant to 28 U.S.C. § 2255. The Valentines, jointly
and severaily, make a number of arguments based on
United States v. Booker, 543 U.S. 220 (2005). Largely
for reasons this court articulated in Humphress v.
United States, 398 F.3d 855 (6th Cir. 2005), these
claims fail. Petitioners also make a number of
ineffective-assistance claims, all but one of which lack
merit. On that ground, we reverse and hold that
Jimmy Ray Valentine is, entitled to an evidentiary
hearing to determine whether his trial counsel

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thwarted his efforts to accept a plea bargain. We
affirm the district court on all other grounds.

I, Background
A. Jimmy Ray Valentine

Jimmy Ray was convicted in February 2000 of
conspiracy to possess with intent to distribute cocaine
and cocaine base. His 292-month sentence resulted
from the district court’s finding him responsible for at
least 1.5 kilograms of cocaine base. Jimmy Ray
appealed his sentence, arguing, inter alia, that he
should be resentenced in light of the Supreme Court’s
ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000).
This court rejected that argument and affirmed his
conviction, United States v. Valentine, 70 F. App’x 314
(6th Cir. 2003), which became final on October 20,
2003.

The following year, Jimmy Ray moved for relief
under 28 U.S.C. § 2255, alleging ineffective assistance
of counsel. While his motion was pending in the
district court, Jimmy Ray moved for leave to amend
his petition to include an argument based on the
intervening decision in Blake/y v. Washington, 542
U.S. 296 (2004). The district court denied him leave to
amend, concluding that Blakely did not apply to
defendants on collateral review. The district court
also denied his ineffective-assistance claims. Jimmy
Ray then filed a notice of aj:peal and applied for a
certificate of appealability, which the district court
denied. While his application was pending, the
Supreme Court announced its decision in United
States v. Booker, 543 U.S. 220 (2005), to which Jimmy
Ray directed this court’s attention pursuant to Fed. R.
App. P. 28). This court then granted a certificate of

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appealability on both his _ineffective-assistance
arguments and his) Booker claim.

B. Kenneth J. Valentine

Kenneth was tried with his brother Jimmy Ray and
six other defendants, and was convicted of conspiracy
to possess with intent to distribute cocaine base.
Kenneth was sentenced to 292 months, predicated on
the district court’s finding that at least 1.5 kilograms
of cocaine base were involved in the offense. Kenneth
appealed, asserting, inter alia, arguments based on
Apprendi and ineffective assistance of counsel. This
court rejected his appeal in 2003, Valentine, 70 F.
Appx at 314, and his conviction became final on
January 26, 2004. Following the Supreme Court’s
issuance of Booker, Kenneth filed a motion pursuant
to 28 U.S.C. § 2255, which the district court denied.

Kenneth then appealed, and this court granted a
certificate of appealability, allowing Kenneth to raise
his ineffective-assistance and Booker claims.

Il. Apprendi/Blakely/Booker
A. Procedural Issues

Although Jimmy Ray and Kenneth both rely on
Booker to challenge aspects of their sentences, their
cases arrive in different procedural postures. The
merits of Kenneth’s Booker challenge are properly
before us, but Jimmy Ray’s case arrives in the
procedural posture of a denied motion for leave to
amend. ‘This distinction is irrelevant, however,
because the district court based its ruling on the legal
conclusion that Jimmy Ray’s proposed amendment to
include a Blakely argument would be futile as Blakely
was inapplicable on collateral review, a conclusion we
review de novo. Parry v. Mohawk Motors of Mich.,

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Inc., 236 F.3d 299, 306 (6th Cir. 2000). The issue in
both cases is essentially the same: Kenneth is entitled
to relief if Booker is applicable to his case on collateral
review, and Jimmy Ray is entitled to amend his
petition to include a Booker argument if Booker
applies on collateral review. Were Booker applicable
to their cases, both Valentines state cognizable Booker
claims éntitling them to resentencing.

B. Booker Is a New Rule of Criminal Procedure:
Jimmy Ray and Kenneth

Jimmy Ray and Kenneth both contend that the
district court erred and that Booker applies to their
cases on collateral review because Booker did not
announce a “new rule” of criminal procedure. Blakely
and Booker were mer# applications of Apprendi, they
argue, and not “new rules” for purposes of collateral
review of their convictions, which became final after
Apprendi.

In most instances, defendants seeking collateral
relief may not rely on new rules of criminal procedure
announced after their convictions have become final
on direct appeal. Schriro v. Summerlin, 542 U.S. 348,
352 (2004). In Teague v. Lane, 489 U.S. 288 (1989),
the Supreme Court announced a three-step analysis
for determining when a new procedural rule will apply
retroactively to cases on collateral review. As the
Supreme Court explained in Beard v. Banks, 542 U.S.
406, 411 (2004) (internal citations omitted):

First, the court must determine when the
defendant’s conviction became final. Second, it
must ascertain the “legal landscape as it then
existed,” and ask whether the Constitution, as
interpreted by the precedent then existing, compels
the rule. That is, the court must decide whether the

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rule is actually “new.” Finally, if the rule is new,
the court must consider whether it falls within
either of the two exceptions to nonretroactivity.

The Beard Court further explained that the second
step of the Yeague analysis asks “whether the
[relevant] rule... was dictated by then-existing
precedent-whether, that is, the unlawfulness of
{petitioners conviction[s] was apparent to all
reasonable jurists.” Jd. at 413 (internal citations
omitted). Jimmy Ray’s and Kenneth’s convictions
became final after Apprendi and prior to Blakely. Our
Humphress decision addressed Booker's retroactivity,
however, and held that Booker does not apply
retroactively to cases on collateral review. 398 F.3d at
860-63. The Valentines attempt to distinguish their
case, however, on the ground that Humphress’s
conviction became final prior to Apprendi whereas

their convictions became final after Apprendi, but
before Blakely and Booker.'

But this argument ignores several key facts about
the Humphress decision. First, the Humphress court
actually decided that Booker was not dictated by
Blakely, and therefore Booker created a “new rule”
that could not be raised by defendants whose
convictions became final at any time prior to Booker's
January 12, 2005, issuance. 398 F.3d at 860-52. If

1 In support of this distinction, the Valentines point to the
Humphress court’s framing of the issue before it: “We must
therefore assay the legal landscape as of [January 2000] and ask
‘whether the rule later announced in [Booker| was dictated by
then-existing precedent-whether, that is, the unlawfulness of
[respondent’s] conviction was apparent to all reasonable jurists.”
Humphress, 398 F.3d at 860 (quoting Beard, 542 U.S. at 413).

Fass

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Booker was a new rule despite Blakely, it follows that
it was a new rule despite Apprendi. Put simply, the
timing of Apprendi had no bearing on this court’s
decision in Humphress. .

Second, the Humphress court pointed out that
dissents in Booker made clear that Booker's result
was not preordained by Bilzkely. See id. at 861 (citing
Booker, 543 U.S. at 334 (Breyer, J., dissenting)
(opining that factual distinctions “offer a principled
basis” for refusing to extend Blakely and Apprendi to
the Federal Sentencing Guidelines)). The views
expressed in dissent, as the Humphress court
explained, were indicative of the MSeoker rule’s
“newness’ :

Although Justice O’Connor’ observed that
“Washington’s scheme is almost identical to the

upward departure regime established by 18 U.S.C.
§ 3553(b) and implemented in USSG
§ 5K2.0,” Blakely, 124 S. Ct. at 2549 (O’Connor, J.,
dissenting), it was by no means a foregone
conclusion that the rule in Blakely rendered the
Federal Guidelines unconstitutional, as Justice
Breyer’s dissent in Booker proves. Booker, 125 S.
Ct. at 802-03 (Breyer, J., dissenting).

Id, at 861 n. 2.

Third, the Humphress court also noted that “the
differing interpretations of Blakely announced by the
United States Courts of Appeals also indicate that not
all reasonable jurists believed that the Booker rule
was compelled by Blakely.” Id. at 861. The
Humphress court pointed out that this circuit, in
United States v. Koch, 383 F.3d 436 (6th Cir. 2004)
(en banc), joined the “Second, Fourth and Fifth
Circuits in holding that Blakely did not compel the

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conclusion that the Federal Sentencing Guidelines
violate the Sixth Amendment.” 398 F.3d at 861 (citing
Unitec States v. Mincey, 380 F.3d 102 (2d Cir. 2004),
United States v. Hammoud, 378 F.3d 426 (4th Cir.
2004) (en banc), and United States v. Pineiro, 377
F.3d 464 (5th Cir. 2004)). The court went on to
explain:

Even those Circuits that have applied Blakelys rule
to the Federal Guidelines have done so over
disse.its.... Weare mindful of the observation in
Beard that “[b]ecause the focus of the inquiry is
whether reasonable jurists could differ as to
whether precedent compels the sought-for rule, we
do not suggest that the mere existence of a dissent
suffices to show that the rule is new.” Beard, 124 S.
Ct. at 2513 n.5. We are confident, however, not only
that the jurists who authored those majority
opinions and dissents are reasonable, but that these
opinions and dissents make it manifest that the
rule of Booker is new.

Humphress, 398 F.3d at 861-62 (citations omitted).

To the extent that Humphress does not strictly
control this issue because of the timing of
Humphress’s conviction vis-a-vis Apprendi, its
reasoning remains persuasive.2 Moreover, other
courts of appeals have considered and rejected the
same arguments in cases involving similarly situated
petitioners whose convictions became final after
Apprendi. See, e.g., Never Misses A Shot v. United

2 Indeed, although Lang v. United States, 474 F.3d 348, 353 (6th
Cir. 2007), did not have occasion to address the issue as argued
by the Valentines here, it could be read to foreclose this claim.

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States, 413 F.3d 781, 782-83 (8th Cir. 2005)
(petitioner whose conviction became final after
Apprendi but before Booker could not raise Booker
claims because “the ‘new rule’ announced in Booker
does not apply to criminal convictions that became
final before the rule was announced, and thus does not
benefit movants in collateral proceedings”); Lioyd v.
United States, 407 F.3d 608, 612-14 (8d Cir. 2005)
(same); Guzman v. United States, 404 F.3d 139, 142
(2d Cir. 2005) (same); United States v. Price, 400 F.3d
844, 848-49 (10th Cir. 2005) (holding that while
Blakely interpreted Apprendi, it was not compelled by
Apprendi, and thus petitioner whose conviction
became final post-Apprendi but pre- Blakely could not
raise Blakely claims’ on_ collateral review);
McReynolds v. United States, 397 F.3d 479, 481 (7th

Cir. 2008) (“Booker does not apply retroactively to
criminal cases that became ffinal before its
release.... Blakely reserved decision about the status of
the federal Sentencing Guidelines... so Booker itself
represents the establishment of a new rule about the
federal system.”).

We find the views expressed by this court in
Humphress and those presented by our sister circuits
persuasive. We therefore cannot conclude that “the
rule later announced in [Booker] was dictated by
then-existing precedent [such that] the unlawfulness
of [petitioners’] conviction was apparent to all
reasonable jurists.” Beard, 542 U.S. at 413 (second
emphasis added). We hold that petitioners whose
convictions became final prior to Booker may not rely
on Booker's rule on collateral review.

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C. Booker Is Procedural, Not Substantive: Kenneth
Only

Kenneth also contends that Apprendi and its
progeny have “redefined the substantive law
regarding federal narcotics prosecutions.” Kenneth
presumably makes this argument because the Jeague
rule of nonretroactivity does not apply to new
substantive rules. See Teague, 489 U.S. at 311. As we
noted in Humphress, however, “Without question, this
rule is a procedural one,” 398 F.3d at 860 n.1 (citing
Schriro, 542 U.S. at 348), and Kenneth’s argument
fails.

D. Booker Is Not a “Watershed Rule of Criminal
Procedure”: Kenneth Only

Teague nonretroactivity contains a_ second
exception for new rules of criminal procedure that are
“watershed rules of criminal procedure implicating
the fundamental fairness and accuracy of the criminal
proceeding.” Beard, 542 U.S. at 417. This rule, as the
Court in Beard pointed out, has “limited scope” and “is
clearly meant to apply only to a small core of rules
requiring observance of those procedures that... are
implicit in the concept of ordered liberty.” dd.
Moreover, the Beard Court explained that “because
any qualifying rule would be so central to an accurate
determination of innocence or guilt [that it is] unlikely
that many such components of basic due process have
yet to emerge, it should come as no surprise that we
have yet to find a new rule that falls under the second
Teague exception.” Id.

Kenneth nevertheless argues that the “reasonable
doubt rulings in the Apprendi line of cases establish a
watershed rule that must be applied retroactively
under Teague due to its impact on the truth-finding

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function of a trial.” But the Supreme Court’s
reasonable doubt rulings form the core of Apprendi,
they are not a separate strand of principles which
have not been analyzed for purposes of this issue.
Moreover, this court addressed this issue in
Humphress, holding that Booker did not create a
watershed rule of criminal procedure. 398 F.3d at 863.
This argument fails as well.

E. Application of Equity to Booker Issues: Kenneth
Only

In his final Booker argument, Kenneth asks the
court to create an equitable rule to allow defendants
who raised an Apprendi argument on direct review to
raise a Booker argument on collateral review. Teague
forecloses such relief.

Ill. Ineffective Assistance of Counsel
A. Standard of Review

In reviewing a district court’s ruling on a § 2255
petition, this court reviews findings of fact for clear
error and conclusions of law de novo. Paulino v.
United States, 352 F.3d 1056, 1058 (6th Cir. 2003).

B. The Intersection of 28 U.S.C. § 2255 and
Strickland v. Washington

A prisoner who proves that the process leading to
his conviction was tainted by an “error of
constitutional magnitude” is entitled to relief under
§ 2255. Weinberger v. United States, 268 F.3d 346,
351 (6th Cir. 2001). The Valentines claim they were
denied the effective assistance of counsel guaranteed
by the Sixth Amendment. See McMann v. Richardson,
397 U.S. 759, 771 n.14 (1970). Their challenges here
are therefore governed by the well-known
“performance” and “prejudice” standard established in

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Strickland v. Washington, 466 U.S. 668 (1984). To
establish constitutionally ineffective assistance of
counsel, a petitioner must show that (1) his “counsel’s
representation fell below an objective standard of
reasonableness,” Strickland, 466 U.S. at 688, and

(2) “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.” Jd. at 694.

C. Trial Counsel’s Alleged Failure to Communicate
Jimmy Ray’s Desire to Accept a Plea

1. Factual Background

Jimmy Ray claims that he learned in February or
March 1999 that the government had offered him a
ten-year plea arrangement, but his trial counsel
advised him there was “no rush” to accept because he
believed the government would make a better offer

later in the proceedings. According to Jimmy Ray,
however, the government made no additional offers,
and he repeatedly told his trial counsel that he would
like to accept the government’s ten-year offer. Trial
counsel ignored Jimmy Ray’s wishes, he alleges, and
took the case to trial in January 2000, where Jimmy
Ray was convicted and sentenced to 292 months.

The government disputes Jimmy Ray’s factual
allegations, contending (1) that it never offered Jimmy
Ray a ten-year plea agreement, and (2) that Jimmy
Ray made his own decisions about his trial. The
government points to a colloquy at Jimmy Ray’s
sentencing hearing in which defense counsel made the
following representations to the district court:

And he would have taken a deal, Your Honor, he
would have taken a deal in a second had the
Government chose to give him a crime that he felt

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he was guilty of instead of something he wasn’t. He
adamantly maintained from day one, “I did not do
this. I am no leader. I did not move millions of
dollars worth of crack cocaine. I don’t have millions
of dollars. I don’t even have thousands of dollars. I
didn’t do this.” That’s what he told me time and
time again.

He is not a stupid man, but he is not a brilliant
man, but he understands what I told him, “You go
to trial and lose, it is life.” I told him that. He will
tell you that. He said, “I don’t care, I didn’t do what
they say I did.”

According to the government, this statement
“establishes that the government never offered a
ten-year plea agreement” to Jimmy Ray and that
Jimmy Ray “was not kept in the dark on anything and

freely made his own decision to go to trial.” The
government observes that Jimmy Ray maintained his
innocence during his sentencing hearing, apparently
implying that he would not have accepted any plea,
had one been offered. Moreover, the government
points out that Jimmy Ray had ten months in which to
complain about his lawyer’s alleged dereliction, but he
made no complaints during pretrial proceedings, at
trial, or at his sentencing hearing.

Jimmy Ray disputes the government’s
characterization of his counsel’s statements at the
sentencing hearing and contends that they illustrate
his trial counsel’s dishonesty. Jimmy Ray argues that
his attorney's statement “that his client would have
taken a deal ‘had the Government chose[n] to give him
a crime that he felt he was guilty of instead of
something that he wasn’t” can be interpreted as an
attempt by his attorney to “conceal his failure to

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communicate Mr. Valentine’s acceptance of the
ten-year plea offer.” Jimmy Ray also accuses the
government of dissembling in its interpretation of his
attorney's statement and his own statement at the
sentencing hearing, which he maintains should be
interpreted in the context of “disputing the
Government’s leadership charge,” rather than as
general claims of innocence.

2. Analysis

Jimmy Ray highlighted his claim in his § 2255
motion, but the district court denied him an
evidentiary hearing on the matter. We need only
determine whether Jimmy Ray is entitled to an
evidentiary hearing to resolve whether’ the
government offered him a plea that his lawyer
essentially prevented aim from accepting. If Jimmy

Ray’s trial counsel prevented him from accepting a
plea, his assistance was clearly ineffective and,
because the alleged plea agreement offered Jimmy
Ray substantially less prison time (120 months rather
than his 292-month sentence), he could show
sufficient prejudice to satisfy Strickland‘s second
prong. The district court denied Jimmy Ray’s claim,
finding that the “[djefendant has not presented
specific, credible evidence supporting his claim [on
this ground.”] This court reviews that determination
for abuse of discretion. Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999).

In reviewing a § 2255 motion in which a factual
dispute arises, “the habeas court must hold an
evidentiary hearing to determine the truth of the
petitioner's “claims.” Turner v. United States, 183
F.3d 474, 477 (6th Cir. 1999). “[T]he burden on the
petitioner in a Aabeas case for establishing an

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entitlement to an evidentiary hearing is relatively
light.” Jd. More is required, however, than mere
assertions of innocence. See id. (“[Ijt would be
nonsensical to conclude that the petitioner could meet
that burden simply by proclaiming his innocence.”).
Nevertheless, “[aJn evidentiary hearing is required
unless the record conclusively shows that the
petitioner is entitled to no relief.” Arredondo, 178
F.3d at 782 (internal quotations omitted). Stated
another way, “no hearing is required if the petitioner’s
allegations cannot be accepted as true because they
are contradicted by the record, inherently incredible,
or conclusions rather than statements of fact.” Jd.
(internal quotations omitted).

We conclude, for several reasons, that Jimmy Ray
met his burden, and the district court erred in
declining to hold a hearing. First, although the
government implies that Jimmy Ray’s protestations of
innocence discredit his argument that he was willing
to accept a plea, this circuit has rejected this
reasoning in the past. See Griffin v. United States,
330 F.3d 733, 738 (6th Cir. 2003) (citing North
Carolina v. Alford, 400 U.S. 25, 33 (1970)) (“Griffin’s
repeated declarations of innocence do not prove, as the
government claims, that he would not have accepted a
guilty plea.”). This court has also explained that
“{njrotestations of innocence throughout trial are
properly a factor in the trial court’s analysis, however
they do not, by themselves, justify summary denial of
relief without an evidentiary hearing.” Smith v.
United States, 348 F.3d 545, 552 (6th Cir. 2003).

Second, the authority relied on by the district court,
Moss v. United States, 323 F.3d 445 (6th Cir. 2003),
does not support its conclusion that a defendant’s

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affidavit alone could not present sufficient evidence
supporting his request for a hearing. The Moss
district court reached its conclusion only after an
extensive three-day hearing on the _ evidence
surrounding the defendant’s ineffective-assistance
and other claims. Jd, at 453.

Third, the conclusions the government draws from
Jimmy Ray’s counsel’s statement at his sentencing
hearing are unsupported by the record. From the
statement, “he would have taken a deal... had the
Government chosen to give him a crime that he felt he
was guilty of,” the government draws the conclusion
that “the Government never offered a ten-year plea
agreement to the Defendant.” But the government's
reasoning is flawod. Taking the statement at. face
value, it proves only that Jimmy Ray was never
offered a plea to a “crime that he felt he was guilty of,”
not that he was never offered a plea at all. The
government’s assertion may be correct, but it does not
follow from the colloquy it quotes. Furthermore, it is
strange that the government claims it never offered
Jimmy Ray a plea, but imen relies on an ambiguous
statement by Jimmy Ray’s counsel to prove this claim
in its brief, rather than an affidavit from Jimmy Rav’s
trial counsel or its own trial attorneys who litigated
the matter.

The defendant's burden to show his right to a
hearing is significantly lower than his burden to show
he is entitled to § 2255 relief. See Turner, 183 F.3d at
477. Here, Jimmy Ray offers more than a mere
assertion of his innocence; he presents a factual
narrative of the events that is neither contradicted by
the record nor “inherently incredible.” His claim may
prove false at the evidentiary hearing, but it is

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impossible to assess its veracity based on this record
alone. The purpose of the hearing, however, is to
allow the court to make these factual determinations
based on more than a defendant’s affidavit and the
contrary representations of the government.
Therefore, we reverse the district court’s judgment on
this issue and remand for an evidentiary hearing on
this claim.

D. Jury Communication/Denial of Counsel: Jimmy
Ray Only
1. Factual Background

Jimmy Ray alleges he was denied counsel during a
critical stage of his trial. The relevant facts are as
follows. The jury began deliberating at approximately
9:00 a.m. on Thursday, February 10, 2000. The next
morning, when the jury reconvened to continue its
deliberations, the court sent it the following message:

Dear jury, there is no time limit nor is there any
hurry in your deliberations. However, I must catch
a plane today at 1:30. Therefore, if you do nei have
a verdict by 12:00, I will discharge you until
Tuesday morning at 8:30, February the 15th, 2000.

The court did not contact the defendants’ attorneys
prior to delivering its message. During the morning,
however, the court gave defense counsel an
opportunity to submit a substitute note, which he
declined. Court was reconvened later that morning
after the jury delivered a note to the court indicating
that it had reached a verdict on all but one defendant,
and had deliberated about that defendant for six
hours. Defense attorney Mitchell objected to the note,
arguing that “it had the potential of creating a verdict
before the verdict’s time.” The court overruled the

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objection. The district court asked if*the note made
the jury feel rushed in reaching its verdicts, and the
jury also answered “No.” The jury then delivered its
verdicts with respect to all defendants but one, and
reconvened the following Tuesday to continue
deliberations.

2. Analysis

In his brief, Jizimy Ray frames this scenario as a
Sixth Amendment “denial of counsel” claim, rather
than an instance of ineffective assistance by his trial
counsel (his § 2255 petition argued both theories).
Because the court gave its message to the jury after
trying and failing to gather the defendants’ lawyers, it
is difficult for counsel to be considered ineffective.
Thus, if Jimmy Ray is entitled to relief under this
claim, it would be because he was denied counsel, not
because counsel was ineffective.

Jimmy Ray invokes the principle that “denial of
counse! during a critical stage of a judicial proceeding
mandates a presumption of prejudice.” Roe v.
Flores-Ortega, 528 U.S. 470, 483 (2000); see also
United States v. Cronic, 466 U.S. 648, 659 n.25 (1984).
Stated another way, denial of counsel is considered a
“structural error,” which entitles a defendant to a new
trial without showing prejudice under Strickland’s
second prong-prejudice is presumed because the error
makes “the adversary process itself presumptively
unreliable.” Cronic, 466 U.S. at 659. Jimmy Rav
must show that the district court's communication
with the jury constituted a “critical stage” of the trial,
recently defined by the Supreme Court as “a step of a
criminal proceeding, such as an arraignment, that
[holds] significant consequences for the accused.” Bel/
v. Cone, 535 U.S. 685, 695-96 (2002). Because this

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court has held that certain instances of jury
“re-instruction” and the reading of supplemental
instructions to the jury qualify as “critical stages,” see,
e.g., Caver v. Straub, 349 F.3d 340, 350 (6th Cir. 2003);
French v. Jones, 332 F.3d 430, 436 (6th Cir. 2003),
Jimmy Ray labels the district court’s note an
“instruction” given outside the presence of counsel.
We reject this characterization. Cases in which this
court has found denial of counsel at a critical stage
invariably involve a court instructing the jury about
the substantive elements of an offense or giving a
deadlocked jury further instructions about how to
proceed. See, e.g., Caver, 349 F.3d at 349 n.6 (counsel
was absent when the jury was re-instructed “on
certain elements of the offense after they had
deliberated”); French, 332 F.3d at 430 Gudge gave an
improvised deadlocked jury instruction, later

complained of as coercive, after hearing that the jury
had reached a third impasse).

In this case, however, the note conveyed only
scheduling information, with the caveat that jury
need not hurry its deliberations-arguably not an
‘Snstruciion” at all. The Tenth Circuit addressed a
factualiv similar situation in United States v.
McMurry, 818 F.2d 24 (10th Cir. 1987), where the
defendant challenged a statement the trial judge
made to the jury in the absence of his counsel as an
improper AJ/en charge. After several hours of
deliberations, the trial judge told the jury “that he had
to catch a plane in several hours and that if it had not
finished deliberating by then he would call a recess
over the weekend and allow deliberations to continue
the following week.” Jd. at 26-27. Although the
procedural posture and claims at issue in McMurry

20a

differ from this case, the Tenth Circuit’s conclusion is
informative:

The statement was simply not an instruction at
all.... The statement was made after the jury had
deliberated about four hours on a Thursday and
three hours on Friday. The judge had called the
jury into the courtroom to discuss’ lunch
arrangements. We must view this as no more than
an explanation about the schedule for lunch and for
subsequent deliberations. With the weekend
having arrived it was necessary to give the jury a
schedule for the balance of the day and the next
week. The jury was entitled to such an explanation
for its plans. It had nothing whatever to do with the
length of deliberations but was, again, a needed
schedule. The explanation can in no way be
considered as an instruction.

Id. We view the district court’s message in the same
way, as not fitting within the category of jury
instruction or re-instruction that demands the
presence of counsel. 3

And though a coercive instruction could be
characterized as a “critical stage,” which holds
“significant consequences for the accused,” Cone, 535
U.S. at 695-96, we have held similar statements not
coercive. See United States v. Markey, 693 F.2d 594,
597 (6th Cir. 1982); see also Gibson v. United States,
271 F.3d 247, 258 (6th Cir. 2001), overruled on other
grounds by United States v. Leachman, 309 F.3d 377
(6th Cir. 2002); United States v. Ratliff 63 F. App’x
192 (6th Cir. 2003) (unpublished opinion).

“In evaluating for coercive effect a judge’s
statement to the jury, this Court must consider the
statement in context, assessing it under the totality of

21a

the circumstances.” Gubson, 271 F.3d at 258. In
Markey, the defendant contended that the district
judge “coerced’ the jury into reaching a speedy verdict
[because the judge commented,] at the conclusion of
trial, that the courthouse would be available the
following morning (Christmas Eve) if the jury was
unable to reach a consensus that afternoon.” 693 F.2d
at 594. The Markey defendant’s coercion charge
mirrors Jimmy Ray’s: The court’s message in both
cases informed the jury that if it did not reach a
verdict by a certain time, it would have to return to
deliberate at a supposedly undesirable time, a holiday
in Markey and several days later in Jimmy Ray’s case.
The court in Markey found that “the trial judge’s
charge was not ‘likely to give the jury the impression
that it was more important to be quick than to be
thoughtful.” Jd. (quoting United States v. Green, 523
F.2d 229 (2d Cir. 1975)). Viewing this situation with
the lens Markey provides, we are confident the
message did not coerce the jury into reaching its
verdict, its quickness notwithstanding. This court has
repeatedly held that “the jury’s speed in reaching a
verdict is irrelevant to whether an instruction was
coercive.” Ratliff 63 F. App’x at 195-96 (citing United
States v. Giacalone, 588 F.2d 115%, 1168 (6th Cir.
1978)); United States v. Tines, 70 F.3d 891, 896 (6th
Cir. 1995). Therefore, we deny his petition for relief
on these grounds.

E. Ineffective Assistance of Appellate Counsel/
Batson: Jimmy Ray and Kenneth

1. Factual Background

Jimmy Ray and Kenneth claim their appellate
counsel was ineffective for failing to appeal the
district court’s decision to allow the government’s

22a

peremptory challenge to a prospective juror, Carl
Pratt. During jury selection, defense counsel objected
under Batson, explaining that only two members of
the panel were “people of color” and that one was
already excused for cause. Defense counsel stated:
“There is one other person and that’s Mr. Pratt. Id
say that he is a black man. I don’t know for sure, but
he certainly looks like a black man to me. And he has
been summarily excused by the prosecution.”

The district court then requested a response from
Assistant United States Attorney Brian Delaney.
Delaney respoaded with surprise, apparently because
he and none of the people sitting with him thought
that Pratt “was a black man.” The court then stated,
“Your non-discriminatory reason for challenging him
is because you did not know that he was an ethic [sic]

minority; is that a fair statement?” Delaney responded,
“That’s true, but we had reasons why we dismissed
him that had nothing to do with race.” Delaney
provided four reasons:

[1] He is only 46 years old and he shows that he is
retired. That kind of concerns me, someone who
isn’t working and involved in the community.
[2] Another concern was that instead of getting
workmen’s comp if it was a back injury he had, he
didn’t even get any, it makes me wonder about the
suspicious circumstances that might have
surrounded his leaving work. Usually people who
are legitimately injured get compensation for that
loss, rightfully, and he did not, which makes me
subject to think that perhaps there was something
missing there. He said he had resigned from his
employment. Just suspicious circumstances. I
mean, it’s not illegal to do it, but it makes me

23a

wonder about the person. [3] He failed to place in
the upper-hand left corner or right corner the city
from which he lived. [4] I did notice, it’s just my
own feelings, that he had an earring that we could
notice in his left ear. I tend to kick some people off,
males that have earrings, just because sometimes a
lot of law enforcement officers wear them, but just
as an idea of whether someone is conservative or
not. That’s somewhat unusual. That’s the only
male on the panel that’s wearing an earring. And
whether that is a good reason or not, it was one of
the reasons.

The district court responded, correctly, that “it doesn’t
have to be a good reason, it has to be a
non-discriminatory reason.” He then gave defense
counsel an opportunity to respond. Defense counsel
responded to Delaney’s worker’s compensation reason
by pointing out that

Mr. Pratt told this court why he did not bother to
get worker’s comp. He said his wife had died last
year and that he was getting over that and working
through all that. There is nothing unusual about
that. If Mr. Delaney is telling you that’s his reason,
I think it’s not a good reason. I realize it’s probably
a non-discriminatory reason, but it’s not a very: good
reason.

Defense counsel also discussed the earring: “[t]he fact
he has an earring, I can’t believe that’s a reason the
government goes around getting rid of people.”
Defense counsel continued, explaining that he is
“looking for black people on my juries, especially when
I look around and see eight black defendants sitting
behind eight white lawyers. There ought to be black
people on juries and I don’t believe that this is a valid

24a

reason for peremptory challenging this juror. I think
they have expressed discriminatory reasons for
getting rid of this.” The court then asked, “What was
the discriminatory reason they expressed?” Defense
counsel responded, “The earring seems,” to which the
court replied, “White people wear earrings.” Defense
counsel then attempted again to articulate a rationale
for his feeling that prosecutors challenged Pratt for a
discriminatory reason:

I can’t express it, other than to say that what
they've expressed is inadequate. It doesn’t explain
to me why they got rid of Mr. Pratt. There is no
reason that I can see, other than the fact I think he
is black and that’s why they got rid of him. That’s
my belief.

The court concluded as follows:

As far as Mr. Pratt is concerned, the Court’s
observations are that his race was unclear. He
didn’t put anything on his card, nor did he say that
he was or was not a member of some race. Like
Mr. Mitchell, I believe him to be a black man. But
that’s how I look at things. I have to accept the
word of Mr.Lennon and Mr. Delaney and
Mr. DiBrito when they tell me they did not think so.
And for that reason the motion is denied.

The district court then offered defense counsel the
opportunity to “cross-examine or examine people from
the clerk’s office who selected this jury” to give defense
counsel the chance to investigate why there were only
two black people on the panel. Defense counsel
declined this opportunity. Before bringing the jury
back into the courtroom, the court stated,
“Mr. Delaney, I'll give you a chance to reconsider on
Pratt. I think he was black. I’m not going to konor the

25a

objection. But if you, now having been told he is black,
want to invite him back on the jury, you may.”
Delaney responded, “I don’t agree with the assertion
that he is black. I mean, I don’t understand that, Your
Honor, by saying now that he is black. I mean, I can
only say.” The court then said,

Pll let you in on a little tip. When I asked the
question about are any of you black, he nodded
affirmatively. He’s the only person who did. I said,
I don’t think any of you are African-American, but I
don’t know. He clearly indicated he was an
African-American. Clearly. But you had to be
looking to see it. If you weren’t looking, you didn’t
see it.

Delaney responded, “I can only say for the record I
didn’t see it, it never even crossed my mind, Your

”

Honor.” The court said, “Again, I’m inviting you to
invite him back, but I’m not requiring you to.”
Delaney responded, “I would still, I mean, peremptory
challenge I have non-discriminatory purpose for doing
it and I’m going to stand by that.” The court replied,
“And I upheld it. Bring the jury back without
Mr. Pratt. Tell him he is excused.”

2. Analysis

Defendants raising claims of ineffective assistance
by appellate counsel must meet Strickland ‘s
two-prong test. McFarland v. Yukins, 356 F.3d 688,
699 (6th Cir. 2004). In the appellate context, the court
must first assess the strength of the claim appellate
counsel failed to raise. “Counsel’s failure to raise an
issue on appeal could only be ineffective assistance if
there is a reasonable probability that inclusion of the
issue would have changed the result of the appeal.” Jd.
As the court in McFarland explained, “fi]f there is a

26a

reasonable probability that [the defendant] would
have prevailed on appeal had the claim been raised,
we can then consider whether the claim’s merit was so
compelling that appellate counsel’s failure to raise it
amounted to ineffective assistance of appellate
counsel.” Jd. at 700. In order to assess the
effectiveness of Jimmy Ray’s and Kenneth’s appellate
counsel, then, the court must first consider whether a
Batson claim on appeal had a reasonable probability
of success. Applying this court’s precedent to the facts
in the record, a Batson claim had little probability of
success.

The Equal Protection Clause prohibits a
prosecutor’s use of peremptory challenges in a racially
discriminatory manner. Batson v. Kentucky, 476 U.S.
79 (1986). In assessing Batson claims, we employ a

three-step analysis: “Under Batson, a defendant must
first establish a prima facie case showing that the
prosecution exercised peremptory strikes on the basis
of race. If the defendant satisfies this requirement,
the prosecution must articulate a _ race-neutral
explanation for the challenges. The trial court must
then decide if the defendant has carried the burden of
proving purposeful discrimination.” United States v.
Tucker, 90 F.8d 1135, 1142 (6th Cir. 1996) (citing
Batson, 476 U.S. at 96-98).

In assessing the prosecutor’s articulated reasons,
the Supreme Court has provided, and the district
correctly recognized, that “[t]he second step of this
process does not demand an explanation that is
persuasive, or even plausible.... [T]he issue is the
facial validity of the prosecutor’s explanation. Unless
a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race

27a

neutral.” Purkett v. Elem, 514 U.S. 765, 767-68
(1995). Our review of the district court’s resolution of
the ultimate issue-whether the defendant has
established purposeful discrimination-is limited:
“{b]ecause this determination turns largely on the
evaluation of credibility, reviewing courts give the
findings of the district court great deference.” United
States v. Harris, 192 F.3d 580, 586 (6th Cir. 1999)
(citing Batson, 476 U.S. at 98 n.21), “We may reverse
that finding of fact only where we find clear error.”
United States v. Hill, 146 F.3d 337, 341 (6th Cir. 1998)
(citing Hernandez v. New York, 500 U.S. 352, 369
(1991)) (emphasis added). As the Supreme Court
counseled in FPurkett, “the ultimate burden of
persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the strike.”
514 U.S. at 768.

Although the district court in this case could have
provided a more precise analysis of the issue, the
record reveals no clear error in the court’s finding that
there was no discrimination. The prosecutor
articulated several reasons, none of which contained
discriminatory undertones or implications. The
district court considered the government’s reasons
and provided defense counsel the opportunity to meet
his burden by showing a discriminatory implication in
Delaney’s statements, but defense counsel did not
meet his burden and instead merely said that he had a
“belief? that the government's reasons were
discriminatory. This “belief’ does not meet defense
counsel’s “ultimate burden of persuasion regarding
racial motivation[, which] rests with, and never shifts
from, the opponent of the strike.” Jd. The district
court ultimately denied the objection, stating that
Pratt’s race was unclear and he “had to accept the

28a

word” of the prosecutors that they were unaware of
Pratt's race and thus did not strike him for that
reason. In other words, the district judge found
Delaney’s explanation credible, and this kind of
determination is given “great deference.” Harris, 192
F.3d at 586 (citing Batson, 476 U.S. at 98 n.21).
Therefore, the district court’s Batson ruling was nct
clear error. Given this conclusion, Jimmy Ray’s and
Kenneth’s ineffective-assistance-of-appellate-counsel
claims must also fail, as they cannot show that their
appellate counsel failed to include an issue that had a
reasonable probability of changing the result of the
appeal. See McFarland, 356 F.3d at 699.

IV. Conclusion

We affirm the district court’s denial of Jimmy Ray’s
and Kenneth’s challenges based on Booker, and their

ineffective-assistance claims, but we reverse the
district court’s decision denying Jimmy Ray an
evidentiary hearing on whether his trial counsel
denied him the opportunity to accept a plea bargain
and remand to the district court for a hearing on this
issue.

3 The record is unclear why the district court then asked Delaney
if he would like to voluntarily invite Pratt back on the jury, given
that the court ultimately decided that Pratt was black. The
record is clear, however, that the district court maintained its
initial ruling on the issue, and we review that ruling.

29a

CONCURRING IN PART,
DISSENTING IN PART

BOYCE F. MARTIN, JR., Circuit Judge, concurring
in part and dissenting in part. I join the result
reached by the majority, except for its conclusion in
Part II.B. regarding the retroactive application of the
Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005). The majority’s analysis presents
this issue fairly, and finds support in our precedent.
Even so, I dissent to underscore what | believe to be
an important theoretical difference that I have
regarding Booker’s retroactive application.

I have previously written, and continue to believe,
that Apprendi*v. New Jersey, 530 U.S. 466 (2000),
commanded the Supreme Court’s. subsequent
decisions in Blakely v. Washington, 542 U.S. 296
(2004), and Booker. See United States v. Koch, 383
F.3d 436, 443 (6th Cir. 2004) (en banc) (Martin, J.,
dissenting) (“The seeds of Blakely were sown in
Apprendi |, in which the Supreme Court held that
‘other than the fact of a prior conviction, 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.”). The
Supreme Court confirmed this belief in Booker itself
when it stated, succinctly and unequivocally, that “we
reaffirm our holding in Apprendr. Any fact (other than
a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury

30a

beyond a reasonable doubt.” Booker, 543 U.S. at 244.
As I am inclined to think the Court meant what it said,
I believe that neither Blakely nor Booker created a
new rule, but merely applied the rule already laid
down in Apprendi. The rule from Booker should
therefore apply retroactively to habeas -petitioners,
like the Valentines, whose convictions became final
after the Court issued its decision in Apprendi.

I.

At the outset, I do not believe that this Court’s
decision in Humphress v. United States, 398 F.3d 855
(6th Cir. 2005), controls the result here. The
conviction of the defendant in HumphAress became
final before the Supreme Court’s decision in Apprendi,
as the majority acknowledges. As a result, the
question faced by the panel in Humphress was not, as
it is here, whether Apprendi dictated the result in
Booker, but rather whether the rule from Booker was
dictated by precedent that predated Apprendi. I agree
with the end result reached in Humphress because I
believe that Apprendi itself announced a new rule,
and that petitioners whose convictions predated this
decision would be barred from obtaining relief under
Apprendi, Blakely, or Booker. To the extent that the
Humphress panel discussed whether Blakely or
Apprendi dictated the result in Booker, however, this
analysis is dicta, as it was unnecessary to reach the
conclusion that no precedent at the time the
petitioner’s conviction became final (before Apprendt! )
dictated the result in Booker.' See Central Virg. Cmty.

1 This is not to suggest that the Humphress opinion somehow
overreached or was off-base for the analytical approach that it

3la

College v. Katz, 546 U.S. 356: (2006) (“[W]e are not
bound to follow our dicta in a prior case in which the
point now at issue was not fully debated.”) (citing
Cohens v. Virginia, 19 U.S. 264 (1821) (“It is a maxim
not to be disregarded, that general expressions, in
every opinion, are to be taken in connection with the
case in which those expressions are used. If they go
beyond the case, they may be respected, but ought not
to control the judgment in a subsequent suit when the
very point is presented for decision.”)). The panel’s
view in Humphress may well be informative with
respect to the question of whether reasonable jurists
believed Booker was compelled by Blakely for
purposes of examining Booker’s retroactive
application under Teague v. Lane, 489 U.S. 288 (1989).
It does not, however, act as a binding precedent from
this Court on the issue we face here.?

followed. If, as the panel clearly believed, Blakely and Apprendi
did not dictate Booker, then it naturally follows that no
pre-Apprendi precedent dictated Booker either. This may have
been a simple way of reaching its conclusion regarding Booker’s
retroactive application to a pre-Apprendi_ conviction.
Nevertheless, this portion of its reasoning went beyond the
precise question presented to the panel, and does not bind us to
follow it.

2 Nor is it clear to me why the majority suggests that Lang v.
United States, 474 F.3d 348, 353 (6th Cir. 2007), “could be read
to foreclose” the “issue as gggued by the Velgnynes here.” Maj.
Op. at 4. As the majomty acknowledges, “Lang in no way
addressed whether Booker was dictated by Apprendi, apparently
because the petitioner in Lang did not raise this argument. The
majority's suggestion that Lang is somehow controlling would
allow precedential decisional law to be created on a given issue
where a losing party fails to raise that issue, simply because the
facts or procedural posture of his case would theoretically have

32a

Under Teague, “[ujnless they fall within an
exception to the general rule, new constitutional rules
of criminal procedure will not be applicable to those
cases which have become final before the new rules
are announced.” 489 U.S. at 310. Thus, if the rule
from Booker was new, and not dictated by Apprendi,
there is little doubt that the petitioners here could not
benefit from it, as it was not part of the legal
landscape at the time of their convictions (leaving to
the side for now any discussion of the Teague
exceptions). See Beard v. Banks, 542 U.S. 406 (2004).
The majority effectively catalogues a number of
judicial opinions that like Humphress, concluded that
Apprendi did not dictate Booker, either in holdings or
in dicta. These opinions are relevant to show that not
all reasonable jurists believed in the inevitability of
Booker, which, under Teague’s progeny, indicates that
Booker created a new rule after the petitioners’
convictions became final and from which they cannot
now benefit. See Beard, 542 U.S. at 413. Under this
conventional approach, even if all the members of our
panel were inclined to believe that Booker was
dictated by Apprendi, the fact that many of our
colleagues previously believed otherwise would render
the rule from Booker new, despite our current beliefs
to the contrary. This leads me to ponder a question
that I am not sure has been answered by the Supreme

allowed him to raise it. Essentially, by failing to raise the
argument and losing his case on other grounds, the Lang
petitioner would not only waive the unlitigated claim in his own
case, but would close the door on that claim on behalf of all other,
similarly situated habeas petitioners. This is a legal principle
with which I, at least, am unfamiliar.

33a

Court or this Court: Does the “apparent to all
reasonable jurists” inquiry, which is relevant under
Teague and its progeny to determining a rule’s
“newness,” apply with the same force to a strictly
federal rule of criminal procedure, raised in a habeas
challenge to a federal conviction under 28 U.S.C.
§ 2255, as it does in habeas proceedings addressing
state convictions under 28 U.S.C. § 2254?

Teague itself arose in the context of a habeas review
of a state court conviction, and did not address the
appropriate retroactivity analysis in habeas reviews
of federal conviction. 489 U.S. 288, 328 (Brennan, J.,
dissenting) (“The plurality does not address the
question whether the rule it announces today extends
to claims brought by federal, as well as state,
prisoners.”). The Yeague majority justified its rule
against the retroactive application of new rules of

3 Other Courts of Appeals have concluded that Teague applies to
section 2255 petitions, and have not acknowledged any difference
between the analysis for habeas petitions seeking relief from
federal convictions versus those seeking relief from state
convictions. See Daniels v. United States, 254 F.3d 1180, 1194
(10th Cir. 2001); United States v. Martinez, 139 F.3d 412, 416
(4th Cir. 1998); Van Daalwyk v. United States, 21 F.3d 179, 183
(7th Cir. 1994); Gilberti v. United States, 917 F.2d 92, 95 (2d Cir.
1990). As Justice Brennan pointed out in his dissent in 7eague,
however, the Court’s opinion had nothing to do with section 2255
petitions. 489 U.S. at 328 (Brennan, J., dissenting); see also
United States v. Payne, 894 F. Supp. 534, 542 (D. Mass. 1995)
(ruling that Teague does not apply in section 2255 cases.). I
would not take issue with the general conclusion reached by
other courts that 7eague is relevant to the retroactivity inquiry
in habeas petitions brought by federal prisoners; rather, as
discussed below, I think that its application should be somewhat
different in this context.

34a

criminal procedure on two grounds: (1) comity toward
state court adjudications, and (2) the finality of
criminal judgments. Teague, 489 U.S. at 308 (“[W]e
have recognized that interests of comity and finality
must also be considered in determining the proper
scope of habeas review.”); Beard, 542 U.S. at 412
(“Teagués nonretroactivity principle acts as a
limitation on the power of federal courts to grant
‘habeas corpus relief to... state prisoner[s]’.... This
should make clear that the Teague principle protects
not only the reasonable judgments of state courts but
also the States’ interest in finality quite apart from
their courts.”). Only one of these justifications-the
finality of criminal judgments-is relevant in habeas
cases seeking relief from convictions in federal court.

Teague’s concern with finality on its own likely
supports the general rule of applying the case’s basic
premise to section 2255 petitions. That is to say that
as a general matter, as with state court prisoners,
federal prisoners should only be able to rely on rules
that were part of the legal landscape at the time their
convictions became final, based on the value of repose,
and the importance of having some eventual end-point
in all litigation. Because concerns with comity are
reduced-if not nonexistent-in the context of section
2255, however, it would seem to me that a bit more
scrutiny is warranted in determining what the legal
landscape actually was, and whether a given rule was
“dictated by precedent existing at the time the
defendant’s conviction became final.” Teague, 489 U.S.
at 301 (emphasis in original).

As discussed above, the “dictated by prior
precedent” inquiry typically turns on whether
reasonable jurists, in cases prior to the decision in

35a

which the “new rule” was announced, would have
deemed its outcorme to be ordained by then-existing
precedent. See, eg, Beard, 542 U.S. at 413
(grounding the inquiry in whether “the unlawfulness
of [respondent’s] conviction was apparent to all
reasonable jurists”); Humphress, 398 F.3d at 860
(same). This deferential approach might make good
sense in the section 2254 context. Its focus on the
divergent opinions of federal and state.court judges
recognizes that sometimes reasonable minds can
differ over the development of legal rules. In such
instances, where the application of an existing rule to
a somewhat nuanced situation is debatable, the state
courts should not necessarily be subject to
Monday-morning quarterbacking every time they are
eventually proven wrong on an issue. See, e.g., Beard,
542 U.S. at 412 (“Jeagués nonretroactivity principle
acts as a limitation on the power of federal courts to
grant ‘habeas corpus relief to...state prisoner{s].”’)
(quoting Caspari v. Bohlen, 510 U.S. 383, 390 (1994)
(emphasis added)); zd. at 423 (Souter, J., dissenting)
(“(T]he function of Teagues reasonable-jurist
standard is to distinguish those developments in this
Court’s jurisprudence that state judges should have
anticipated from those they could not have been
expected to foresee.” (emphasis added)); Butler v.
McKellar, 494 U.S. 407, 414 (1990) (“The ‘new rule’
principle therefore validates reasonable, good-faith
interpretations of existing precedents made by state
courts even though they are shown to be contrary to
later decisions.”(emphasis added)). This concern is
explicitly recognized in Teague: “[s]tate courts are
understandably frustrated when they faithfully apply
existing constitutional law only to have a federal court
discover, during a _ fhabeas] proceeding, new

36a

constitutional commands.” 489 U.S. at 310 (quoting
Engle v. Isaac, 456 U.S. 107, 128 n.33 (1982)
(emphasis added)).

These quotations clearly reveal that the standard
new rule inquiry and its reference to opinions of
reasonable jurists is largely based on concerns with
federalism and comity, and demonstrates deference to
reasonable state court interpretations of the law.
Even where the “reasonable jurists” to whom we look
for guidance are federal judges, their opinions can
serve as a proxy for whether a similar state court
decision. was reasonable. So long as state courts are
applying Supreme Court case law in good faith, there
is diminished justification fer burdening their
quasi-sovereign judicial machinery’ with the
retroactive application of new rules in cases that have
become final.

In a section 2255 case, however, where comity and
federalism are irrelevant, there is much less need to
defer to the divergent views of federal judges who, in
hindsight, did not correctly apply existing precedent
to a new case. We are, after all, members of inferior
courts established by the same sovereign (unlike state
court judges), and if the Supreme Court says we were
wrong, we should take our medicine and gladly apply
the correct rule retroactively, rather than clinging to
vacated misapplications of the law to prove that a
Supreme Court rule is “new” (which conveniently
allows us to convince ourselves that we could not have
been wrong in the first place). Nor can our difference
of opinion serve as a proxy for why a prior, now
invalidated decision should be deferred to as a
reasonable application of the Constitution, as it might
in the section 2254 context.

37a

In fact, a less deferential approach in section 2255
cases to the divergent opinions of reasonable jurists
than in section 2254 cases would parallel the standard
of review codified by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). Specifically, section
2254(d)(1) imposes a very deferential standard .of
review in habeas cases challenging state court
convictions, allowing reversal only where the state
court decision “was contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States.” This provision has no counterpart
providing a standard of review in section 2255 cases,
and they are generally reviewed de novo. See Moss v.
United States, 323 F.3d 445, 454 (6th Cir. 2003).4 The

4 Moss refers to the standard by which our Court of Appeals
reviews a district court’s disposition of a section 2255 petition,
rather than how the district court reviews the prior, direct
proceedings in the underlying criminal case. But the fact that
the district court in which the petition is filed is usually the same
court that originally handled the case, and has the opportunity to
correct any errors it may have made, without showing any sort of
awkward deference to its own earlier decision, indicates even less
concern with deference in the first instance. See Weinberger v.
United States, 268 F.3d 346, 351 (6th Cir. 2001) (“A motion
brought under § 2255 must allege one of three bases as a
threshold standard: (1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.”). Further, some claims, such as those
for ineffective assistance of counsel, can only be heard in the first
instance in a petition for habeas relief under section 2255, see
United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997),
providing additional support for the view of such a petition as
part of the ongoing adjudication of a federal criminal case, rather

38a

different standard of review used in habeas petitions
challenging state court convictions versus that used in
petitions challenging federal convictions supports, at
least by analogy, a similar context-based difference in
the manner in which Jeague applies to determine a
rule’s newness.

than some separate, isolated proceeding, the conclusions of
which are entitled to some sort of deference.

Another judge who has questioned Teague's applicability in
federal habeas cases has suggested that concerns of both comity
and finality are diminished in section 2255 cases, in light of the
fact that to a large extent, they are a continuation of the original
federal criminal proceeding, rather than a purely separate and
distinct lawsuit:

To this Court, the difference in the nature of proceedings
under sections 2254 and 2255 precludes application of Teague
to federai prisoners, at least in the present circumstances:

In contrast to the “civil” and “collateral” section 2254
remedy for state prisoners, the section 2255 remedy. for
federal prisoners bears the markings of an integral part of
a continuous criminal proceeding that is segmented by no
event or condition decisive of finality. This characteristic
of section 2255 proceedings creates the possibility, ignored
by most courts and commentators that have faced the issue,
that Teague does not apply in section 2255 proceedings....

The legislative history of section 2255 supports the view that
2255 actions are part of the criminal proceedings and that the
conviction or sentence is not “final” until disposition of the
habeas petition.

Payne, 894 F. Supp. at 543 (quoting James S. Liebman & Randy
Hertz, Federal Habeas Corpus Practice and Procedure § 22A.6,
at 272-74 (Michie Supp. 1993), and Rules Governing Section
2255 Proceedings in the United States District Courts, 1
Advisory Committee Note (1976 Adoption) (2255 motion “is a
further step in the movant’s criminal case and not a separate
civil action”)).

39a

This is all to say that there would be goad reason to
conclude that in section 2255 cases, divergent past
opinions of “reasonable” jurists should not be enough
to demonstrate that a rule is new.5 This approach
would not undermine the central premise of Teague’s
general rule against retroactivity. Rather than
hanging onto the now-vacated opinions of reasonable
jurists, I would focus primarily on the straightforward
question of whether the new decision “simply applie[s]
a well-established constitutional principle to govern a
case which is closely analogous to those which have
been previously considered in the prior case law.”
Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (quoting
Mackey v. United States, 401 U.S. 667 (1971) (Harlan,

5’ This view might seem somewhat novel among federal judges,
but I would note that at least one commentator has made similar
observations pertaining to “7eague-light” in federal habeas
petitions:

[Ujnlike motions filed under the state habeas statute, which
are governed by 2254, 2255 motions are filed in the federal
district court that originally imposed the _ sentence.
Consequently, the great fear in Veague that retroactivity
would upset federal-state relations by interfering with the
finality of state court judgments and unduly burdening state
court systems with rehearings is simply not present with 2255
motions. As recently as 2004, the Court acknowledged that
the justification for the Teague ban hinged on the fact that
Teague involved state habeas petitioners. [citing Beard]...
In the wake of Blakely and Booker, however, lower federal
courts and commentators seem oblivious to the difference
between state and federal habeas challenges and why each
might fare differently under the principles of Teague.

Nicholas J. Eichenseer, Comment, Reasonable Doubt in the
Rear-View Mirror: The Case for Blakely-Booker Retroactivity in
the Federal System, 2005 Wis. L.Rev. 1137, 1167 (2005).

40a

J., concurring in part and dissenting in part)). To the
extent there is a need to articulate what my
“federal- Teague “ or “Teague-light” standard would be,
this language from VPenry would encapsulate it
precisely.

IT.

This discussion brings me to the question of
whether Booker created a new rule. In my mind,
there can be little argument that Booker did nothing
more than “simply appl[y] a_ well-established
constitutional principle [the rule from Apprendi] to
govern a case which is closely analogous.” The
well-established constitutional principle is_ that
“fo]ther than the fact of a prior conviction, 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.”
Apprendi, 530 U.S. at 490. The closely analogous
question presented in Booker, was, in the Court’s own
words, “whether our Apprendi line of cases applies to
the sentencing guidelines.”® 543 U.S. at 229.

Justice Stevens’s opinion for the Court in
Booker-the portion of the opinion that addressed the
constitutionality (but not the remedy) of mandatory
application of the Federal Sentencing

6 The Court explained the issue somewhat more thoroughly by
quoting the first question presented: “|wjhether the Sixth
Amendment is violated by the imposition of an enhanced
sentence under the United States Sentencing Guidelines based
on the sentencing judge’s determination of a fact (other than a
prior conviction) that was not found by the jury or admitted by
the defendant.” 543 U.S. at 229 n.1.

4la

Guidelines-made explicit that it was a
straightforward application of Apprendi to the
Sentencing Guidelines, rather than the creation of a
new rule: “we reaffirm our holding in Apprendr. Any
fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty
or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” Jd. at
244 (emphasis added). I am mindful of the Supreme
Court’s warning that “the fact that a court says that
its decision is within the ‘logical compass’ of an earlier
decision, or indeed that it is ‘controlled’ by a prior
decision, is not conclusive for purposes of deciding
whether the current decision is a ‘new rule’ under
Teague.” Butler, 494 U.S. at 415. Even so, Bookerdid
not create a new rule because it did not “break new
ground.” Teague, 489 U.S. at 301. Instead of creating
some new principle of law, or making an extension of
the law that was “controlled” by a prior holding, it
simply applied the same legal principles it had
articulated in Apprendi and Blakely to a new
sentencing scheme: “More important than _ the
language used in our holding in Apprendi are the
principles we sought to vindicate. Those principles
are unquestionably applicable to the Guidelines.”
Booker, 543 U.S. at 238 (emphasis added).
Revolutionary as the holding in Booker may have
seemed, the true upheaval actually occurred in
Apprendi through its resuscitation of the Sixth
Amendment jury trial right.

Unlike today’s majority and the Humphress Court,
I am unconvinced that the dissents in Booker and
Blakely were “indicative of the Booker rule’s

9?

‘newness.” Although I tend not to engage in the

42a
practice of counting justices, it is apparent from a
review of the opinions in these cases and Apprendi
that the dispute between justices is over the
fundamental premise of Apprendi rather than
whether or not it foreordained Booker’s constitutional
holding. This observation is based not only on the
identities of the individual dissenters, but the legal
principles they relied upon in each of the three cases.
See, e.g., Apprendi, 530 U.S. at 543-544 (O’Connor, J.,
dissenting) (“The actual principle underlying the
Court’s decision ... would apply not only to schemes
like New Jerseys, under which a _ factual
determination exposes the defendant to a sentence
beyond the prescribed statutory maximum, but also to
all determinate-sentencing schemes in which the
length of a defendant’s sentence within the statutory
range turns on specific factual determinations (e.g.,
the federal Sentencing Guidelines).”); id at 565
(Breyer, J., dissenting) (“As Justice O’Connor points
out, the majority’s rule creates serious uncertainty
about the constitutionality of such statutes and about
the constitutionality of the confinement of those
punished under them.”); Blakely, 542 U.S. at 323,
324-25 (O’Connor, J., dissenting) (“It is no answer to
say that today’s opinion impacts only Washington’s
scheme and not others, such as, for example, the
Federal Sentencing Guidelines .... The fact that the
Federal Sentencing Guidelines are promulgated by an
administrative agency nominally located in the
Judicial Branch is irrelevant to the mayjority’s
reasoning. The Guidelines have the force of law, ...
and Congress has unfettered control to reject or accept
any particular guideline. The structure of the Federal
Guidelines likewise does not, as the Government
half-heartedly suggests, provide any grounds for

43a

distinction.”); id. at 346 (Breyer, J., dissenting)
(“Taken together these three sets of considerations,
concerning consequences, concerning history,
concerning institutional reliance, leave me where |
was in Apprendi, i.e., convinced that the Court is
wrong.”); Booker, 543 U.S. at 327, 330 (Breyer, J.,
dissenting) (“The Chief Justice, Justice O’Connor,
Justice Kennedy, and I have previously explained at
length why we cannot accept the Court’s
constitutional analysis....The upshot is that the
Court’s Sixth Amendment decisions-Apprendi,
Blakely, and today’s-deprive Congress and state
legislatures of authority that is constitutionally
theirs.”); see also id. at 288 (Stevens, J., dissenting in
part) (“In reality, the [remedial] ma)jority’s
concerns... are nothing more than an objection to
Apprendi itself.”).

Of course, Supreme Court justices have the luxury
of being able to vote to overturn the Court’s prior
precedent, unlike the rest of us who must fall in line
once the magic number of five votes is cast. There is
no reason for us to be surprised by the Apprendi
dissenters’ continued opposition to the rule from that
case, which is justified by both their viewpoints and
their jobs. A candid look at the differences of opinion
between the Justices in these three cases does not
suggest to me, however, anything more than an
ongoing dispute over the premise underlying
Apprendi. Therefore, I cannot read their divergent

44a

viewpoints regarding Apprendi to suggest that it did
not command the result in Booker.”

In fact, the Apprendi dissenters said at the time of
the decision that it would require reversal of the
Guidelines, as quoted above. Further, like the Booker
constitutional majority eventually held, the Apprendi

7 There are many areas of the law where particular Supreme
Court justices have continued to argue against a certain legal
rule even after it is established as precedential authority. As an
example, for fourteen years after the Court declared in Gregg v.
Georgia, 428 U.S. 153, 169 (1976) that “the.punishment of death
does not invariably violate the Constitution,” Justices Brennan
and Marshall adhered to their dissenting opinions from Gregg
that the death penalty always violates the Eighth and
Fourteenth Amendments. See, e.g., Walton v. Arizona, 497 U.S.
639, 674-75 (1990) (Brennan, J., with whom Marshall J., joins,
dissenting) (“I also adhere to my view that the death penalty is in
all circumstances a cruel and unusual punishment.”) (citing
Gregg, 428 U.S. at 230-31 (Brennan, J., dissenting)). In fact, a
Lexis-Nexis search for “Dissentby (Brennan) and Dissentby
(Marshall) and death penalty” yields 1440 cases since 1976, the
vast majority of which appear to contain the oft recited phrase
“fa]jdhering to our views that the death penalty is in all
circumstances cruel and unusual punishment pre -ibited by the
Eighth and Fourteenth Amendments....”"See, eg., Boggs v.
Muncy, 497 U.S. 1043 (1990). Well placed as their arguments
may have been, it would be an uphill battle to point to this
entrenched resistance by these two esteemed justices as
diminishing the precedential significance of Gregg, or as
indicating that the death sentences of subsequent litigants were
somehow less controlled by the Court’s prior death penalty
jurisprudence.

See also Gonzales v. Carhart, 550 U.S.__, Nos. 05-380 and
1382 (2007) (Thomas, J., joined by Scalia, J., concurring) (“I write
separately to reiterate my view that the Court’s abortion
jurisprudence, including Casey and Roe v. Wade, 410 U.S. 113
(1973), has no basis in the Constitution.”).

45a

dissenters made clear that any distinctions based on
the structure or the source of authority
(administrative versus legislative) of the federal
guidelines was not a meaningful one.® For their part,
the majority opinions in Apprendi and Blakely only
stated that the federal guidelines were not in front of
the Court, rendering it impossible to make any
judgment with regard to the constitutionality of their
applicatior.2 530 U.S. at 497 n.21. Five years later,
the dissenters’ prediction proved correct, in a
remarkably straightforward application of Apprendi
to the Sentencing Guidelines. I therefore believe that

8 It seems that the United States had accepted this reality as well
after Apprendi, or at least by the time Blakely was argued in the
Supreme Court. See Blakely, 542 U.S. at 305 n.9 (“The United
States, as amicus curiae, urges us to affirm. It notes differences
between Washington’s sentencing regime and the Federal
Sentencing Guidelines but questions whether those differences
are constitutionally significant.”).

® As the majority points out, other federal courts have pointed to
the Supreme Courts “reserving judgment” on_ the
constitutionality of the guidelines in Apprendi and Blakely in
support of their determination that Booker created a new rule.
See, e.g., McReynolds v. United States, 397 F.3d 479, 481 (7th
Cir. 2005). In my mind, these statements about reserving
judgment have nothing to do with the newness inquiry. It is a
fundamental principle of the judicial process that courts can only
consider one case at a time, see Griffith v. Kentucky, 479 U.S.
314, 323 (1987), and the Supreme Court’s refusal to reach past
the case presented to it has little to do with whether the opinion
in one case dictates the result in a subsequent case. The Seventh
Circuit’s reasoning in McReynolds would essentially mean that
every Supreme Court decision announces a “new rule,” except in
the unlikely scenario where the Court grants certiorari to hear a
case presenting an issue identical to one it has already decided
and then decides it in an identical fashion.

46a

Booker “simply applied a_ well-established
constitutional principle to govern a case which is
closely analogous to those which have been previously
considered in the prior case law.” FPenry, 492 U.S. at
314.10

10 Although the focus of my dissent is that Booker should apply
retroactively to convictions that became final after Apprendi
because it did not create a new rule, a strong argument can also
be made that Booker fits into one of the exceptions to Teague’s
general prohibition of the retroactive application of new rules.
See David E. Johnson, Note, Justice for All: Analyzing Blakely
Retroactivity and Ensuring Just Sentences in Pre-Blakely
Sentences, 66 Ohio St. L.J. 875, 908-22 (2005). Specifically, /
where a new rule is deemed a “watershed rule [ } of criminal
procedure implicating the fundamental fairness and accuracy of
the criminal proceeding,” it still can apply retroactively. Beard,
542 U.S. at 417 (quoting O'Dell v. Netherland, 521 U.S. 151, 157
(1997)). The command from Apprendi, Blakely, and Booker that
facts necessary to support a sentence beyond the maximum
authorized by a conviction “must be admitted by the defendant or
proved to a jury beyond a reasonable doubt,” would clearly
appear to amount to a rule implicating fundamental fairness and
accuracy.

The Supreme Court has partially rejected this argument,
holding that assignment of the factfinding role to a jury, rather
than a judge, does not necessarily increase the accuracy of a
criminal proceeding. Schriro v. Summerlin, 542 U.S. 348, 356
(2004) (“[FJor every argument why juries are more accurate
factfinders, there is another why they are less accurate.”). In
holding that Booker was a new rule, our Circuit’s Humphress
opinion relied on Schrirdés conclusion that a jury does not
necessarily make more accurate factual determinations than a
judge. Schriro, however, did not analyze the separate but related
requirement of Apprendi that facts necessary to the sentence
must be found beyond a reasonable doubt. See Johnson, 66 Ohio
St. L.J. at 915. Mumphress did not account for the increased
standard of proof required by Apprendi. Raising the standard of

47a
II.

It is easy to lose sight of, but essential to bear in
mind, what the Court meant when it “reaffirmed” its
holding from Apprendi in Booker, and why and to
what extent, for purposes of fetroactivity, Booker
applied the holding from Apprendi. Booker’s
remedial resolution to the Constitutional problems
created by mandatory application of the Federal
Sentencing Guidelines was delivered in a complicated
opinion that continues to cause confusion for the lower
federal courts two years after it was decided.
Although in my view Booker’s constitutional holding
resulted from a_ straightforward application of
Apprendi, anyone who could have predicted the case’s
remedial holding would have been several steps ahead
of the proverbial reasonable jurist, if not a bona fide
fortune-teller.!!

proof from the pre- Booker preponderance of the evidence to the
Apprendi-mandated beyond a reasonable doubt must clearly
have a profound effect on the accuracy of sentencing procedures.
Id. at 915-22; see also In re Winship, 397 U.S. 358, 363 (1970)
(“The reasonable-doubt standard ... is a prime instrument for
reducing the risk of convictions resting on factual error.”).

11 In a particularly thorough opinion, United States District
Judge William Young of the District of Massachusetts has set
forth an insightful historical account of the developments leading
up to the Booker decision, and how he has implemented the
requirements of Apprendi, Blakely, and Booker in his court.
United States v. Kandirakis, 441 F. Supp. 2d 282 (D. Mass. 2006).
Judge Young anticipated the Constitutional problems with the
Federai Sentencing Guidelines, and ruled them unconstitutional
prior to the Supreme Court’s decision in Blakely. Jd. (citing
United States v. Green, 346 F. Supp. 2d 259 (D. Mass. 2004)). As
a result, prior to the Booker decision, he implemented a

48a

The fact that the remedial holding from Booker was
not entirely predictable, however, dces not diminish
the significance of the dictated-by-prior-precedent
Constitutional holding. The invalidation of sentences
imposed under a mandatory application of the

sentencing scheme that he referred to as “Blakely-izing” the
Guidelines by requiring the government to prove to the jury
beyond a reasonable doubt any sentencing enhancements that it
would seek, a process that as he explained “reflected the
preferred remedy of the dissenting Justices in Remedial Booker.”
Id. at 318-19.

Although, as Judge Young notes, “[t]he consequences of
Apprendi for the Federal Sentencing Guidelines were
immediately apparent,”sd. at 287, his opinion makes clear that
these consequences primarily played out in Sooker'’s
Constitutional holding. As for Booker’s remedial opinion, which
Judge Young described learning of with the following humorous
anecdote, he was left rather puzzled:

I well remember the advent of Booker. We were trying a
jury case. The law clerks, recognizing my continuing
interest in these matters, e-mailed the decision to my
courtroom deputy clerk, Elizabeth Smith, in the courtroom.
She began printing out the decision. The courtroom printer
is notoriously slow. As the first page came out of the printer,
she slapped on a “Post-It” note and, grinning, passed it up to
me. On the note was a litile smiley face and the words
“You'll love this!” Page by page, Justice Stevens’s majority
opinion was passed up to me until it was fully assembled.

The printer kept on humming.

Ms. ‘Smith stopped passing the pages in order to scan for
herself what turned out to be Remedial Booker. After three
or four pages had printed out, she applied another “Post-It”
and, crestfallen, passed them up. The second note read,
“How can there be two different majority opinions in the
same case?” How indeed?

Td. at 319.

49a

guidelines is enough to justify retroactivity analysis
on its own, aside from the predictability of the remedy
that was chosen to fix the Constitutional violation.
Further, while the remedy preferred by the dissenters
from Booker's remedial holding would appear to have
had a more significant effect on the actual length of
sentences, the remedial holding still carries profound
implications regarding both the length of sentences
and the methods by which they are imposed. The
opinion’s remedial holding might mathematically
reduce the disparity between the duration of an
unconstitutional sentence under the mandatory
guidelines and that of an acceptable post-Booker
sentence that treats the guidelines as advisory.!2 See

12 It also does not require profound statistical analysis to
understand that the presumption of reasonableness afforded a
within-guidelines sentence by the Courts of Appeals, including
ours, has tended to diminish any meaningful difference in
sentence length between pre-Booker sentences under the
mandatory guidelines and post- Booker sentences. Douglas A.
Berman, Reasoning through Reasonableness, 115 Yale L.J.
Pocket Part 142, 143 (Jyly/Aug.2006) (“Post- Booker circuit
doctrines and practices encourage the sort of rote, mechanistic
reliance on the Guidelines that Justice Stevens’s merits opinion
found constitutionally problematic.”). When consulted, the
statistics paint an even starker picture than an observer might
have hypothesized. Essentially, the presumption of
reasonableness has functioned to vitiate both holdings of Booker
by placing non-subtle pressure on district courts to institute a
within-guidelines sentence so as to avoid reversal. See Brief for
New York Counsel of Defense Lawyers as Amicus Curiae, Rita v.
United States, No. 06-5754 (U.S. Dec. 18, 2006) (surveying
appellate decisions regarding sentencing appeals and concluding
that of 1,152 within-guidelines sentences appealed by defendants,
only 16 were reversed, while 60 of 71 below-guidelines sentences
appealed by the government have been reversed, yet only 7 of 154

50a

Booker, 543 U.S. at 302 (Stevens, J., dissenting in
part) (“[T]he Court [in Remedial Booker] has
effectively eliminated the very constitutional right
Apprendi sought to vindicate.”). The positions of the
petitioners in the instant case illustrates, however,
how a defendant sentenced under the post-Booker
advisory guidelines regime still stands to serve a
shorter sentence, rendering the question of Booker’s
retroactive application something more than a purely
academic exercise.

Each petitioner was sentenced under the
pre-Booker mandatory Guidelines scheme. For each,
therefore, the maximum sentence authorized by the
facts established by the jury verdict was set by the
range required by the Sentencing Guidelines.!3 See,
e.g., United States v. Blood, 435 F.3d 612, 630 (6th Cir.

2006); United States v. Oliver, 397 F.3d 369, 378 (6th
Cir. 2005) (“Given that the federal sentencing
guidelines were mandatory at the time the district
court sentenced Oliver, it seems clear now in light of
Booker that the sentence imposed violated the Sixth
Amendment.”); United States v. Davis, 397 F.3d 340,
351 (6th Cir. 2005). It is undisputed that the 292
month sentences that both petitioners received were
predicated on the district judge finding, based on a
preponderance of the evidence, that 1.5 kilograms of

above-guidelines sentences appealed by defendants have been
reversed).

13 This analysis would be different had they been sentenced
under the post-Booker, advisory Guidelines regime, as the
statutory maximum sentence for the crime of which they were
convicted, not the Guidelines range, would set the ceiling. See
United States v. Duckro, 466 F.3d 438, 443 (6th Cir. 2006).

5la

crack cocaine could be attributed to each. The drug
amount calculation made by the judge by a
preponderance of the evidence resulted in each
petitioner going from one extreme of the Guidelines
based on the Drug Quantity Table of section 2D1.1 to
the other extreme-that is to say they each received the
highest possible base offense level based on a quantity
of drugs alone of 38. Jimmy Ray Valentine also
received a two-point offense level enhancement based
on the district judge’s determination that he played an
aggravated leadership role in the drug conspiracy,
resulting in a total offense level of 40.

Based on the jury verdict alone, which included no
finding of an amount of drugs, the highest possible
base offense level was 12. See U.S.S.G. § 2D1.1 (c). At
this level, Jimmy Ray would have received a 10-16
month sentence (for his criminal history category of I),
and Kenneth would have received a 15-21 month
sentence (for his criminal history category of III).
Instead, in stark contrast, they both received
sentences of 292 months. This equates to a
twenty-four year, four month sentence for each-the
difference of time each will spend in prison based on
facts that were not found by a jury beyond a
reasonable doubt is over twenty-two and a half years.

14 The judge’s finding that Jimmy Ray had an aggravating role in
the conspiracy and the resulting two point enhancement gave
him an offense level of 40 with a criminal history category of I,
which amounted to the functional equivalent of Kenneth’s
offense level of 38 with a criminal history of III. Each calculation
led to a guideline range of 292-365 months, and the district judge
gave both the minimum sentence allowed.

52a

This is not to suggest that the petitioners have some
claim to these specific shorter sentences, because were
we to remand for resentencing under remedial Booker,
the district court could certainly give a sentence
within the same guideline range based on judge-found
facts, so long as the guidelines range was applied in
an advisory fashion. In Jimmy Ray’s case, however,
the district court would not be able to impose a
sentence over 240 months at his hypothetical-
resentencing, as that is the statutory maximum for
his offense. See Duckro, 466 F.3d at 443 (“[I]n cases
where sentencing occurred post-Booker, with the
sentencing guidelines applying in only an advisory
fashion, the maximum sentence authorized by the
facts established through a guilty plea is the
‘maximum sentence prescribed by the applicable
statutory provision.”). That is to say that Jimmy Ray
would stand to have more than four years reduced
from*his sentence under Booker and Apprendi.
Although Kenneth’s sentence would not be similarly
limited, as his prior drug conviction raises the
statutory maximum to thirty years, the district court
could have also, of course, chosen to sentence below
the guidelines range of 292 months-a realistic
possibility in light of its selection of the very bottom of
the then-mandatory guidelines range. The upshot of
the complicated effect of the guidelines is that both
petitioners would have much to gain from a remand
for resentencing under Booker, as they would stand to
get sentences that were both shorter and
Constitutional. Not only did their sentences violate
Booker, but they violated the principle of Apprendi
that any fact “necessary to support a sentence
exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must

53a

be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”

Of perhaps greater importance than any numerical
disparities in the lengths of sentences, however, is the
less concrete but more profound value of imposing
criminal sentences only after ensuring that vital,
centuries-old Constitutional guarantees have been
met:

“What is overlooked in post- Booker discussions is
the fact that, for seventeen years, federal courts had
been sentencing offenders unconstitutionally.”
(quoting Professor Douglas Berman, Remarks at
Harvard Black Letter Law Association (Apr. 4,
2006)). For seventeen years federal courts had been
sentencing offenders unconstitutionally. Think
about that. The human cost is incalculable—
thousands of Americans languish in prison under
sentences that today are unconstitutional. The
institutional costs are equally enormous—for
seventeen years the American jury was disparaged
and disregarded in derogation of its constitutional
function; a generation of federal trial judges has lost
track of certain core values of an independent
judiciary because they have been brought up in a
sentencing system that strips the words “burden of
proof,” “evidence,” and “facts” of genuine meaning;
and the vulnerability of our fair and impartial
federal trial court system to attack from the
political branches of our government has been
exposed as never before in our history.

Kandirakis, 441 F. Supp. 2d at 283. Stated somewhat
differently, the Apprendi line of cases means much
more than how long the government can send a
defendant to jail-it speaks volumes about how we, as a

4

democratic society, are able to follow the strictures
that represent the very backbone of our legal and
Constitutional system. See, e.g., Apprendi, 530 U.S.
at 466 (“To guard against a spirit of oppression and
tyranny on the part of rulers,’ and ‘as the great
bulwark of [our] civil and political liberties,’ trial by
jury has been understood to require that ‘the truth of
every accusation, whether preferred in the shape of
indictment, information, or appeal, should afterwards
be confirmed by the unanimous suffrage of twelve of
[the defendant’s] equals and neighbours....””) (quoting
2 J. Story, Commentaries on the Constitution of the
United States 540-541 (4th ed. 1873) and 4 W.
Blackstone, Commentaries on the Laws of England
.343 (1769)). Apprendi and its offspring—Blakely and
Booker—recognize a_ critical, constitutionally
mandated check on the sentencing process, through
the grounding of sentencing determinations in facts
that have been proved to the jury beyond a reasonable
doubt. Our modern federal judiciary has been
reluctant to recognize this Sixth Amendment
limitation, 1 probably due to the primacy of the
mandatory sentencing guidelines that has been
ingrained in our approach to sentencing for seventeen
years. Although this is an innate and natural way for
anyone to think, federal] judges included, our personal
experience over seventeen years clearly must take a
backseat to the fundamental guarantees of the
Centuries-old Bill of Rights, with the benefit of the

' See, e.g. Koch, 383 F.3d at 438 (“[Wle conclude that Blakely
does not require us to invalidate the Guidelines.”).

55a

Supreme Court’s reinvigoration of these values
through Apprendi and its progeny (i.e. Booker).

IV.

Because I do not believe Booker to be a new rule but
rather to be a straightforward application of Apprendi,
federal habeas petitioners whose convictions became
final after Apprendi should be able to benefit from
Booker. For this reason, I respectfully dissent from
the majority opinion with respect to Part II. B.

56a
UNITED STATES OF AMERICA,
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Case No. 1:99-CR-01
Plaintiff,
vs.
JIMMY RAY VALENTINE, Hon. Richard Alan
KENNETH JEROME Enslen,
VALENTINE, Chief Judge
CHARLES EDWARD
BENNETT,
COREY TIWANE VALENTINE,
DEDRICK QUWANTA
VALENTINE,
JOHNNY VALENTINE,
ROBERT DONTRALL SHARP,
and
KENYA LEVELLE
VALENTINE,
Defendants.

VERDICT FORM AND SPECIAL
INTERROGAT .

1. As to Count One of the Indictment, charging a
conspiracy to possess with intent to distribute cocaine,
and/or cocaine base, and/or marijuana we, the jury,

57a

unanimously find defendant JIMMY RAY
VALENTINE

_____ Not Guilty
x Guilty

A. (Only complete this interrogatory if you find
the defendant guilty as to Count One.) We, the jury,
unanimously agree that JIMMY RAY VALENTINE has
conspired to possess with intent to distribute the
following drugs:

x __ Cocaine

x Cocaine Base (Crack
Cocaine)

Marijuana
2. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,
and/or cocaine base, and/or marijuana we, the jury,
unanimously find defendant KENNETH JEROME
VALENTINE

Not Guilty
x Guilty

A. (Only complete this interrogatory if you find
the defendant guilty as to Count One.) We, the jury,

unanimously agree that KENNETH JEROME
VALENTINE has conspired to possess with intent
to distribute the following drugs:

Cocaine

Cocaine Base (Crack
Cocaine)

Marijuana

3. As to Count One of the Indictment, charging a
conspiracy to possess with intent to distribute cocaine,

58a

and/or cocaine base, and/or marijuana we, the jury,
unanimously find defendant CHARLES EDWARD
BENNETT

Not Guilty
Guilty

A. (Only complete this interrogatory if you find
the defendant guilty as to Count One.) We, the jury,
unanimously agree that CHARLES EDWARD
BENNETT has conspired to possess with intent to
distribute the following drugs:

Cocaine

Cocaine Base (Crack
Cocaine)

Marijuana
4. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,
unanimously find defendant COREY TIWANE
VALENTINE

Not Guilty
x Guilty

A. (Only complete this interrogatory if you find
the defendant guilty as to Count One.) We, the jury,
unanimously agree that COREY TIWANE
VALENTINE has conspired to possess with intent
to distribute the following drugs:

Cocaine

Cocaine Base (Crack
Cocaine)

Marijuana

59a

5. As to Count One of the Indictment, charging a
conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,
unanimously find defendant DEDRICK QUWANTA
VALENTINE |

x Not Guilty
Guilty

A. (Only complete this interrogatory if you find
the defendant guilty as to Count One.) We, the jury,
unanimously agree that DEDRICK QUWANTA
VALENTINE has conspired to possess with intent to
distribute the following drugs:

Cocaine

_______ Cocaine Base (Crack
Cocaine)

Marijuana

6. As to Count One of the Indictment, charging a
conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,

unanimously find defendant JOHNNY VALENTINE
Not Guilty
x Guilty

A. (Only complete this interrogatory if you find
the defendant guilty as to Count One.) We, the jury,
unanimously agree that JOHNNY VALENTINE has
conspired to possess with intent to distribute the
following drugs:

Cocaine

x Cocaine Base (Crack
Cocaine)

x Marijuana

60a

7. As to Count One of the Indictment, charging a
conspiracy to possess with intent to distribute cocaine,
and/or cocaine base, and/or marijuana we, the jury,
unanimously find defendant ROBERT DONTRALL
SHARP

x Not Guilty
Guilty

A. (Only complete this interrogatory if you find
the defendant guilty as to Count One.) We, the jury,
unanimously agree that ROBERT DONTRALL
SHARP has conspired to possess with intent to
distribute the following drugs:

Cocaine

Cocaine Base (Crack
Cocaine)

Marijuana

8. As to Count Two of the Indictment, charging
distribution of cocaine base, we, the jury,
unanimously find defendant DEDRICK
QUWANTA VALENTINE

Not Guilty
x Guilty

So, Say We All, this 11 day of February, 2000.

JURY FOREPERSON

6la
UNITED STATES DISTRICT COURT
Western District of Michigan
UNITED STATES OF Judgment in a
AMERICA Criminal Case
(for Offenses
Committed On or
After November 1,
1987)
Case Number
1:99-CR-1-02
JIMMY RAY VALENTINE Michael T. Maddaloni
Defendant’s Attorney

THE DEFENDANT was found guilty on Count One
after a plea of not guilty.

Accordingly, the defendant is adjudged guilty of
such count(s), which involve the following offenses:

Date Offense Count
Title & Section Concluded Number(s)

21:846 and January 12, One
841(a)(1) 1999

Nature of Offense

Conspiracy to Distribute and Possess With Intent to
Distribute Cocaine, Cocaine Base, and Marijuana
The defendant is sentenced as provided in pages 2
through 5 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.

IT IS FURTHER ORDERED that the defendant
shall notify the United States attorney for this district
within 30 days of any change of name, residence, or

62a

mailing address until all fines, restitution, costs, and
special assessments imposed by this judgment are
fully paid.

Date of Imposition of Sentence: May 18, 2000

Defendant’s Soc. Sec. No.: ***-**-****
Defendant’s Date of Birth: June 7, 1963
US Marshal’s No.: 09555-040

Defendant’s Address: 1980 Hatch
Benton Harbor, MI 49022

DATED: 5-24-2000

HON. RICHARD ALAN ENSLEN
CHIEF JUDGE

IMPRISONMENT

The defendant is hereby committed to the custody
of the United States Bureau of Prisons to be
imprisoned for a term of TWO HUNDRED NINETY
-TWO (292) MONTHS.

It is recommended that the defendant participate in
the Inmate Financial Responsibility Program to
provide for his dependent children. The defendant
shall not be deprived of prison employment or
UNICOR employment or educational opportunities
because the defendant is paying child support in lieu
of paying the fine and other financial obligations.

Friend of the Court Docket No.: 99-82106-DP-M
2nd Circuit Court

811 Port Street

St. Joseph, MI 49085

RETURN

I have executed this judgment as follows:

Defendant delivered on

to

with

certified copy of this judgment.

United States Marshal
By

Deputy Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shail
be on supervised release for a term of FIVE (5)

YEARS.

Within 72 hours of release from the custody of the
Bureau of Prisons, the defendant shall report in
persou to the probation department in the district to
which the defendant is released.

While on supervised release, the defendant shall not
commit another federal, state, or local crime, shall
comply with the standard conditions of supervision, and
shall comply with the following additional conditions:

The defendant shall not illegally possess a controlled
substance and shall refrain from the unlawful use of
controlled substances.

The defendant shall not possess a firearm, destructive
device or other dangerous weapon.

The defendant shall submit to one drug test within
fifteen (15) days of release on supervised release and

64a

at least two periodic drug tests thereafter within sixty
(60) days or as otherwise directed by the Court.

The defendant shall pay any financial penalty that is
imposed by this judgment that remains unpaid at the
commencement of the term of supervised release.

The defendant shall provide the probation officer with
access to any requested financial information.

The defendant shall participate in a program of
testing and treatment for drug abuse, as directed by
the probation officer, until such time as the defendant is
released from the program by the probation officer.

The defendant shali notify the Probation Officer at
least fifteen (15) days prior to any change in residence
in accordance with the Violent Crime Control and Law
Enforcement Act of 1994.

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on supervised release
pursuant to this judgment, the defendant shall not
commit another federal, state or local crime. In
addition:

1) the defendant shall not leave the judicial
district without the permission of the court or
probation officer;

2) the defendant shall report to the probation
officer as directed by the court or probation
officer and shali submit a truthful and
complete written report within the first five
days of each month;

3) the defendant shall answer truthfully all
inquiries by the probation officer and follow
the instructions of the probation officer;

4) the defendant shall support his or her

65a

dependents and meet other’ family
responsibilities;

5) the defendant shall work regularly at a lawful
occupation unless excused by the probation
officer for schooling, training, or other
acceptable reasons;

6) the defendant shall notify the probation officer
15 days prior to any change in residence or
employment;

7) the defendant shall refrain from excessive use
of alcchol and shall not purchase, possess, use,
distribute, or administer any narcotic or other
controlled substance, or any paraphernalia
related to such substances, except as prescribed
by a physician;

8) the defendant shall not frequent places where
controlled substances are illegally sold, used,
distributed, or administered;

9) the defendant shall not associate with any
persons engaged in criminal activity, and
shall not associate with any person convicted
of a felony unless granted permission to do so
by the probation officer;

10) the defendant shall permit a probation officer
to visit him or her at any time at home or
elsewhere and shall permit confiscation of any
contraband observed in plain view by the
probation officer;

11) the defendant shall notify the probation
officer within seventy-two hours of being
arrested or questioned by a law enforcement
officer;

12) the defendant shall not enter into any

66a

agreement to act as an informer or a special
agent of a law enforcement agency without the
permission of the court;

as directed by the probation officer, the
defendant shall notify third parties of risks
that may be occasioned by the defendant’s
criminal record or personal history or
characteristics, and shall permit the probation
officer to make such notifications and to confirm
the defendant's compliance with such
notification requirement.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following criminal
monetary penalties in accordance with the schedule of
payments set forth below.

Assessment Fine Restitution
Totals: $100.00 $5,000.00 $0.00

SPECIAL ASSESSMENT

The defendant shall pay to the United States a
special assessment of $100.00.

CHILD SUPPORT OBLIGATION

Prior to the payment of the fine, the defendant shall
pay past due child support, as well as any other child
support obligations due or accruing while the defendant
is incarcerated or is on supervised release.

. After payment of the special assessment, the
obligation to pay child support shall take precedence
to all other financial obligations imposed by this
judgment, and should the defendant participate in the
Inmate Financial Responsibility Program, the
defendant’s child support obligations shall be paid

67a

prior to the payment of other obligations which are part
of that Program.

The defendant shall not be deprived of prison
employment or UNICOR employment or educational
opportunities because the defendant is paying child
suppoit in lieu of paying the fine and other financial
obligations.

Friend of the Court Docket No.: 99-82106-DP-M
2nd Circuit Court

811 Port Street

St. Joseph, MI 49085

FINE

The above fine includes costs of incarceration
and/or supervision in the amount of $5,000.00.

FORF E

The defendant shall forfeit to the United States of
America the defendant’s interest in United States
Currency as set forth in this Court’s May 17, 2000 Final
Order of Forfeiture.

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order:
(1) assessment; (2) child support obligation;
(3) restitution; (4) fine principal; (5) cost of prosecution;
(6) interest; (7) penalties.

Payment of the criminal monetary penalties shall
be due in full immediately.

Unless the court has expressly ordered otherwise in
the special instructions above, if this judgment
imposes a period of imprisonment, payment of the
criminal monetary penalties shall be due during the
period of imprisonment. All criminal monetary payments

68a

are to be made as directed by the court, the probation
officer or the United States attorney.

STATEMENT OF REASONS

The court adopts the factual findings and guideline
application in the presentence report.

Guideline Range Determined by the Court:
Total Offense Level: 40
Criminal History Category: I
Imprisonment Range: 292 to 365
Supervised Release Range: at least 5 years

Fine Range: $25,000.00 to $4,000,000.00 - Fine is
waived because of the defendant’s inability to pay.

Restitution: not applicable

The sentence is within the guideline range, that
range exceeds 24 months, and the sentence is imposed
at the lowest end of the guideline range because, in this
Court’s opinion, the guideline’s call for much too severe a
punishment.

69a

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION

Nos. 00-1590, 00-1603, 00-1604, 00-1615, 00-1651,
00-1958

UNITED STATES of
America,

Plaintiff-Appellee,

On Appeal from the
United States

Johnny VALENTINE, District Court for
et al., the Western District
of Michigan

Defendants-
Appellants.

Before BOGGS, SUHRHEINRICH and CLAY, Circuit
Judges.

BOGGS, Circuit Judge. Appellants Johnny
Valentine, Corey Valentine, Dedrick Valentine,
Jimmy Ray Valentine, Kenneth Valentine, and
Charles Bennett appeal numerous aspects of their

70a

convictions and sentences.! The convictions in this
case arose from the prosecution of a drug distribution
organization based in Benton Harbor, Michigan. The
initial trial of the defendants lasted fourteen days.
We affirm on each issue in all of the appeals.

I
Johnny Valentine

Johnny Valentine was convicted of one count of
conspiracy to distribute and to possess with intent to
distribute cocaine base (crack) and marijuana, in
violation of 21 U.S.C. §§ 846 and 841(a)(1). According
to the government, Johnny was responsible for
purchasing large quantities of crack from Arkansas
for sale in Michigan. He operated several crack
houses in Benton Harbor. At his sentencing, the
district court found that he was responsible for at
least 1.5 kilograms of crack, which resulted in the
court assigning him a base offense level of 38. The
district court added two levels, pursuant to U.S.S.G.
§ 2D1.1(b)(1), for possession of a dangerous weapon
during criminal activity. His criminal history
category was determined to be I. He was sentenced to
the lowest end of the guideline range, 292 months of
imprisonment.

Corey Valentine?

Corey Valentine was convicted of one count of
conspiracy to distribute and to possess with intent to

! Due to the multiplicity of defendants with the same last name,
the Valentines will often be referred to by their first names,

2 Corey Valentine was granted permission to adopt the briefs of
his co-defendants.

Tla

distribute crack and marijuana, in violation of 21
U.S.C. §§ 846 and 841(a)(1). According to the
government, Corey was a key member of the
Valentine organization, responsible for transporting
crack from Arkansas to Michigan. At his sentencing
he was found responsible for 1.5 kilograms of crack,
which resulted in the district court assigning him a
base offense level of 38. The court determined that he
had a criminal history category of I. While the defense
argued that the district court should decrease Corey’s
base offense level by two levels because he was a
minor participant in the criminal activity, the district
court declined to do so. He was sentenced to the
lowest end of the guideline range, 235 months of
imprisonment.

Dedrick Valentine®

Dedrick Valentine was convicted of knowingly and
intentionally distributing a quantity of crack, in
violation of 21 U.S.C. § 841(a)(1). He was acquitted of
the conspiracy to distribute and possess with intent to
distribute charge.

His pre-sentence report characterizes him as a
low-level distributor of crack. At his sentencing, he
was found responsible for 283.5 grams of crack, which
resulted in a base offense level of 34. The district
court reduced his base offense level by two levels
because it found that Dedrick was a minor participant,
pursuant to U.S.S.G. § 3B1.2(b), and declined to grant
his motion for a downward departure. He was found
to have a criminal history category of IV. The court

3 Dedrick Valentine was granted permission to adopt the briefs of
his co-defendants

72a

sentenced him to the lowest end of the guideline range,
168 months of imprisonment.

Jimmy Ray Valentine

Jimmy Ray Valentine was convicted of one count of
conspiracy to distribute and to possess with intent to
distribute cocaine and crack, in violation of 21 U.S.C.
§§ 846 and 841(a)(1). According to the government,
Jimmy Ray would obtain drugs from his convicted
co-conspirator, Jerry Butler, in Arkansas, as well as
other drug suppliers in California, Texas, and other
locations, for distribution to drug dealers in southwest
Michigan. At his sentencing hearing, the district
court determined that he was responsible for over 1.5
kilograms of crack, which resulted in a base offense
level of 38. The district court increased his base
offense level by two levels, pursuant to U.S.S.G.
§ 3B1.1(c), finding that he was an organizer or a
leader of the conspiracy. The district court also
declined to grant a motion for a downward departure.
Jimmy Ray’s criminal history category was
determined to be I. The court sentenced him to the
lowest end of the guideline range, 292 months of
imprisonment.

Kenneth Valentine

Kenneth Valentine was convicted of one count of
conspiracy to distribute and to possess with intent to
distribute crack, in violation of 21 U.S.C. §§ 846 and
841(a)(1). According to his presentence investigation
report, he was responsible for arranging for the
purchase of crack in Arkansas and for paying the
couriers used to pick up the crack in Arkansas. At his
sentencing hearing, the district court determined that
he was responsible for over 1.5 kilograms of crack.
resulting in a base offense level of 38. The district

73a

court declined to grant a motion for a downward
departure. Kenneth’s criminal history category was
determined to be III. The court sentenced him to the
lowest end of the guideline range, 292 months of
imprisonment.

Charles Bennett

Charles Bennett was convicted after his second trial
of one count of conspiracy to distribute and to possess
with intent to distribute cocaine, crack, and
marijuana, in violation of 21 U.S.C. §§ 846 and
841(a)(1). His first trial ended in a mistrial after the
jury deadlocked.

During Bennett’s first trial, after the jury retired to
deliberate, a juror was replaced by an alternate juror
after she requested to be relieved due to a family

emergency. Prior to replacing the juror, the court
asked Bennett and his counsel to approve the change
in the jury’s composition, and they consented. After
the jury was brought in with the new juror, the
government asked for a waiver of objection to the
replacement of the juror by Bennett. Bennett again
consented to the replacement. After the jury began to
deliberate again, Bennett requested that the court
declare a mistrial due to the substitution of the
alternate juror. The district court denied the motion.
After supplemental instructions by the court (to which
Bennett did not object), the jury deadlocked and a
mistrial was ordered with respect to Bennett.

At his sentencing hearing following the second trial,
the district court determined that Bennett was
responsible for 1.5 kilograms of crack, which Bennett’s

74a

counsel states resulted in a base offense level of 40.4 It
was determined that Bennett’s criminal history
category was I. Prior to his sentencing hearing,
Bennett objected to any sentence of more than 240
months because the indictment did not specify any
amount of controlled substances, citing Apprendi! v.
New Jersey, 530 U.S. 466 (2000). At the sentencing
hearing, Bennett moved for a downward departure
because of his ailing health. The district court
sustained the Apprendi objection and determined that
Bennett’s maximum lawful sentence was 240 months.
The district court also departed downward and
sentenced Bennett to 180 months of imprisonment.

II. The Indictments

Appellants Jimmy Ray Valentine, Johnny

Valentine, Charles Bennett, Dedrick Valentine, and
Corey Valentine argue that the district court lacked
jurisdiction to enter a conviction and impose a
sentence because the indictment failed to list certain
“essential elements” of the charged offense,
specifically the quantity of drugs, and for which type

4 Bennett’s counsel wrote an Anders brief on appeal, which
notifies the court that counsel requests permission to withdraw
from the appeal because of a lack of any good-faith issues to
appeal, and identifies issues that arguably might be appealed.
Anders v. California, 386 U.S. 738. Bennett submitted a pro se
response to the Anders brief in which he raised issues he believed
worthy of appeal. Neither Bennett nor the government submitted
any of Bennett’s documents from the district court for inclusion
in the Joint Appendix. The government did not submit any
argument countering Bennett’s pro se appeal. As such, all facts
pertaining to Bennett included in this opinion are taken from the
Anders brief submitted by Bennett’s counsel.

75a

of drug they were to be held accountable. This
argument has become unavailing since appellants
filed their briefs. The Supreme Court held in United
States v. Cotton that a defective indictment does not
deprive a court of jurisdiction, in the sense of the
authority to adjudicate a case. 535 U.S. 625, 631
(2002).

Jimmy Ray, Johnny, Dedrick, and Corey Valentine
also argue that the indictment violated their Fifth and
Sixth Amendment rights to confront the evidence
against them, and that the judge’s failure to instruct
the jury that it must find a specific amount of drugs
attributable to the conspiracy amounted to a
“constructive amendment” to the indictment. They
argue that they were not afforded notice of the
charges against them as they were told at their
arraignments that the off2nse with which they were
charged, § 841(b)(1)(A), carried a penalty of ten years
to life. However, when the jury was instructed that
quantity was not an element of the offense, it was
being instructed pursuant to § 841(b)(1)(c), which
carries a maximum penalty of twenty years of
imprisonment. They argue that they may have been
more likely to plead guilty, and would have had more
leverage to do so, had they known their conviction
would result in only a twenty-year maximum.

The Supreme Court in Cotton rejected similar
arguments. The defendant in Cotton did not object in
the district court to the fact that the sentences were
based on a quantity not alleged in the indictment;

5 Any aspects of this second argument that deal with sentencing
issues will be addressed at part IV.E, infra.

76a

therefore the Court applied a plain error analysis,
pursuant to Federal Rule of Criminal Procedure 52(b).
Cotton, 535 U.S: at 631-32. The Court concluded that
there was plain error, but that even if the error
affected the substantial rights of the defendant, it did
not seriously affect the fairness, integrity or public
reputation of the judicial proceedings, because the
evidence was overwhelming and uncontroverted that
the conspiracy involved at least 50 grams of cocaine
base. Jd. at 623-33. The evidence in this case is
likewise overwhelming and essentially unrefuted that
the participants in this conspiracy were responsible
for at least 1.5 kilograms of crack.

As for appellants’ arguments regarding their lack of
notice, and the possibility that they might have
handled their plea negotiations differently, it is as

likely that they may have gone to trial knowing they
were only risking twenty years in prisor instead of a
maximum of a life sentence. Moreover, had they
pushed the issue in the district court, the court might
have acquiesced and given the jury a quantity
instruction.

Ill. The Trial

A. Sufficiency of the evidence to support appellants’
convictions

Appellants Dedrick, Jimmy \Ray, Johnny, and Corey
Valentine all argue that the evidence presented at
trial was not sufficient to support their convictions.
This court reviews a defendznt’s sufficiency of the
evidence claim by considering “whether, after viewing
the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

77a

319 (1979). However, none of the appellants moved
for judgment of acquittal at the close of the
government’s case-in-chief pursuant to Federal Rule
of Criminal Procedure Rule 29. This court has held
that failing to make this motion “constitutes a waiver
of any objection to the sufficiency of the evidence.”
United States v. Nesbitt, 90 F.3d 164, 167 (6th Cir.
1996). Therefore, we may only disturb the jury’s
verdict if it constitutes a miscarriage of justice.
United States v. Charles, 138 F.3d 257, 265 (6th Cir.
1998).

1, Dedrick Valentine

In order to establish the crime of distribution of
cocaine base, the government must prove that. the
defendant: (1) knowingly or intentionally distributed
cocaine base, and; (2) at the time of such distribution
knew that the substance was cocaine base. 21 U.S.C.
§ 841(a); United States v. Colon, 268 F.3d 367, 376
(6th Cir. 2001).

The main thrust of Dedrick’s argument is that the
witnesses who testified against him were not credible
because they were cooperating witnesses. He argues
that because the jury found him not guilty of the
conspiracy charge, and because these witnesses were
testifying against him as to his participation in the
conspiracy, the jury must have discounted their
testimony. He also takes issue with the testimony of
Melvin Ferguson and Detective John Briney, who
both testified regarding a “controlled buy” involving
Dedrick.

Ferguson, at the behest of law enforcement,
contacted Dedrick in order to make a purchase of
crack. Law enforcement taped the telephone
conversation between Dedrick and Ferguson, in which

78a

Dedrick agreed to sell a quarter-ounce of crack to
Ferguson and agreed to meet Ferguson ai a specific
place designated by Dedrick. This tape was played for
the jury. Detective Briney testified that he observed
Ferguson drive to the meeting place, observed Dedrick
approach the car and speak with Ferguson, observed
him walk away from the car and disappear from view
behind a house, and then return within less than two
minutes and meet again with Ferguson. Ferguson
drove away and was met by law enforcement.
Ferguson had previously been searched in order to
verify that he had no drugs on his person. He turned
over the cocaine base he had just purchased from
Dedrick. Ferguson also testified at trial that he had
purchased one-half to one ounce quantities of crack
from Dedrick on at least twelve occasions.

Dedrick argues that Detective Briney’s testimony
should be discounted because he was too far away tv
observe the transaction, and later admitted that he
did not observe the transaction take place. He also
argues t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1470%3A2. Public record. Not legal advice.