Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Habeas Hints: Apprendi

by Atty. Kent Russell

[This column is intended to provide "Habeas Hints" for prisoners who are handling habeas corpus petitions as their own attorneys. The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.]

Apprendi : Feast or Famine? Part 2.

The Apprendi whirlwind just keeps on blowing. It's only been three months since my first column on Apprendi , but scores of new Apprendi cases continue to rain down across the country, and there's no sign of a let-up. Therefore, even though the passing of Apprendi 's 1-year anniversary on June 26, 2001 means that no new Apprendi claims will make it by the AEDPA's 1-year statute of limitations unless prisoners can establish equitable tolling for the failure to file them within one year after Apprendi was announced, there are so many cases already in the pipeline with lively Apprendi issues that it's worth it to take a second look at Apprendi and the most current strategies for handling Apprendi claims.

Apprendi held that, except for prior convictions, the Constitution requires that any fact which is used to enhance a sentence over and above the maximum for the offense of conviction must be pleaded and proved to the jury beyond a reasonable doubt. This amounts to a radical change from past practice, in which facts which were used to ratchet up sentences were considered sentencing factors which could be determined by the sentencing judge alone, and by just a preponderance (51% or more) of the evidence rather than the much higher standard of proof, "beyond a reasonable doubt." That's the good news.

The bad news is that, in order to successfully use Apprendi on habeas corpus, you have to jump through a series of hoops that are so many and so narrow that very few habeas corpus claims based on Apprendi have actually succeeded. Below I list the major obstacles to the use of Apprendi on habeas corpus ( in italics ), followed by my Habeas Hints for trying to overcome them ( in bold print ).

1. Apprendi error doesn't occur unless the sentence imposed is greater than the statutory maximum for the offense of conviction.

A narrow reading of Apprendi is that judges still have the discretion to determine, on their own, "sentencing factors" which increase the sentence, so long as the sentence imposed is not greater than the maximum for the offense of conviction. For example, suppose that a statute prohibiting the use of a weapon allows for a sentence of up to 20 years, and that the jury was only required to determine whether the defendant "used" the weapon, but not why s/he used it. At sentencing, the judge finds that the defendant's purpose in using the weapon was attempted murder, and on that basis gives the defendant the full 20 years instead of something like 5 years, the latter being the sentence that would have likely been imposed without the attempted-murder finding. Such a sentence violates the spirit of Apprendi , but virtually all courts to date have held that such a sentence doesn't actually violate Apprendi because the statutory maximum was 20 years and the defendant didn't get a sentence longer than that. Overcoming this problem isn't going to be easy, but there are two avenues to try:

1a. Apprendi applies to "mandatory minimum" and "mandatory maximum" sentences, suggesting that Apprendi error can occur even where a sentence greater than the statutory maximum wasn't imposed. Several courts have held that where a "mandatory minimum" sentence is triggered by a sentencing fact, Apprendi requires that such a fact be submitted to the jury and found beyond a reasonable doubt. See: United States v. Bandy , 239 F.3d 802 (6 th Cir. 2001). Others have vacated sentences where Apprendi error resulted in a "mandatory maximum" sentence being automatically imposed. See: Flowal v. U.S. , 234 F.3d 932 (6 th Cir. 2000). It's arguable that these cases open the door to other Apprendi applications where the maximum sentence was not actually exceeded.

1b. The Supreme Court may expand Apprendi to include cases where the sentence imposed was at or below the maximum. At last count, the U.S. Supreme Court had granted certiorari in more than 40 Apprendi cases, at least some of which involved sentences less than the maximum. You can argue that, at least until and unless all these cases are decided against the petitioners, Apprendi violations occur where the "spirit" of the decision is violated, even where a sentence at or below the maximum is imposed. See: United States v. Norris , 2001 U.S. Dist. Lexis 5449 (E.D. NY).

2. Habeas corpus petitioners are stuck with the law as it existed at the time their convictions became final, so Apprendi can only be used on direct appeal but not on habeas corpus.

In Teague v. Lane , 489 U.S. 288 (1989), the Supreme Court held that, as a general rule, "new" constitutional rules announced after a defendant has been through his direct appeals are not available on habeas corpus. Apprendi 's rules are certainly "new," and most prisoners making Apprendi claims are raising them after their appeals are over; therefore, a habeas petitioner relying on Apprendi has to figure out how to get around Teague . I recommend two approaches:

2a. Teague only applies if the new case announces a new "procedural" rule, not if the rule is "substantive." It's not always easy to differentiate between the two, but a rule is "substantive" when it re-defines the elements of a conviction as opposed to merely affecting the means of proving that a defendant is guilty. Several courts have found Apprendi applicable to federal drug cases under 28 USC § 841, where the sentence increases depending on the amount of drugs, and those cases have said that Apprendi affects the elements of the § 841 charge that the government must prove. Applying that reasoning, Apprendi 's new rules are "substantive" and are an exception to the Teague bar. See: Darity v. U.S. , 124 F. Supp. 2d 355, 360-361 (W.D.N.C. 2000) [ Apprendi rule is "substantive"] and U.S. v. Hernandez , 137 F. Supp. 2d 919, 928-929 (N.D. Ohio 2001) [same]; but see: Jones v. Smith , 231 F.3d 1227, 1236 (9 th Cir. 2000) [finding without discussion that Apprendi announced a new "procedural" rule].

2b. Apprendi is a "watershed" change in the law that qualifies as an exception to Teague .The Teague bar against use of new procedural rules on habeas corpus is qualified by an exception for new rules which are so fundamental that they amount to "watershed" changes in the law that "alter our understanding of the `bedrock' elements essential to the fairness of the proceeding." The Apprendi majority stressed that Apprendi requires jury determinations beyond a reasonable doubt, both fundamental elements of the criminal process which affect the reliability of the determination of guilt or innocence; and even the dissenters acknowledged that Apprendi "will surely be remembered as a `watershed' change in constitutional law." Apprendi , 530 U.S. 466, 524; 120 S.Ct. 2348, 2380 (2000) (O'Connor dissenting). Several lower federal courts have therefore declared that Apprendi is, indeed, a watershed change in the law that qualifies as an exception to Teague . See: U.S. v. Murphy , 109 F. Supp. 2d 1059, 1064 (D. Minn. 2000); Parise v. U.S. , 135 F. Supp. 2d 345 (D. Conn. 2001).

3. Apprendi claims can't be brought on a "successive" petition.

Any second or subsequent federal post-conviction attack is a "successive" petition, for which the AEDPA prohibits filing in federal district court unless permission to file is first obtained from a circuit (appellate) court. And, that permission is undoubtedly going to be denied for Apprendi claims because Congress clearly stated that such permission could only be granted where a new rule was "made retroactive by the Supreme Court," and the Supreme Court hasn't said that Apprendi is retroactive and isn't likely to do so.

3. File successive Apprendi claims under 28 USC § 2241 in the district where you are imprisoned, arguing that you are "innocent" of the crime because of the Apprendi error. The requirement of permission to file a successive petition in federal court is contained in the AEDPA (§ 2255 for federal and § 2254 for state habeas, both identical). However, the AEDPA contains a "savings clause" which allows a habeas corpus petition to be filed under the pre-AEDPA law (§ 2241), if the petitioner can show that the AEDPA remedy is "inadequate" or "ineffective," and that denying habeas corpus review would raise "serious constitutional concerns." Where, as with Apprendi claims, you are relying on a change in the law that didn't exist at all while you were on appeal, that's the kind of situation that makes the AEDPA remedy "inadequate or ineffective" through no fault of your own. Furthermore, because Apprendi effectively makes you "innocent" of the sentence enhancement unless it is found by a jury beyond a reasonable doubt, it would raise "serious constitutional concerns" if it were impossible to bring such a claim on habeas corpus. Therefore, a second or successive petition should be filed pursuant to 28 USC § 2241. Section 2241 petitions are filed in the district of confinement rather than the district where convicted, and don't require advance permission to file from the circuit court. See: Treistman v. United States , 124 F.3d 361 (2 nd Cir. 1997) and Jeffers v. Chandler , 234 F.3d 277 (5 th Cir. 2000).

4. Apprendi claims are subject to "harmless error" analysis.

Even if you can make past #1-3 above, your Apprendi claim will still be denied if the judge determines that any Apprendi error didn't make a difference in the outcome and was therefore "harmless."

4. Show that the Apprendi error amounts to "plain error" under the facts of your case. In most cases, Apprendi claims are being raised on habeas corpus for the first time, because they would have been impossible to bring under the law as it was before Apprendi . This means that the failure to bring Apprendi claims on appeal or on previous post-conviction applications is not the fault of the petitioner, which brings into play the doctrine of "plain error." Plain error has four components: (1) There was "error." (2) The error was "plain." (3) The error affected "substantial rights." (4) The error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Where you can show that Apprendi error has occurred (i.e, imposition of a sentence greater than the maximum based on facts not submitted to and determined by the jury beyond a reasonable doubt), you've established (1) and (2). See: United States v. Nordby , 225 F.3d 1053 (9 th Cir. 2000) [ Apprendi error, once shown, is "error" that is "plain"]. Similarly (4) is satisfied because a sentence that violates the fundamental Due Process rules in Apprendi necessarily affects the fairness and integrity of the proceedings.

However, the stickler is (3), which requires a showing that the error "affected substantial rights." This is very much like the test for showing "prejudicial error," which is error that likely made a difference in the outcome of the case. For example, suppose that the claim of Apprendi error is based on the jury's failure to find that defendant distributed the amount of drugs necessary to kick in the enhanced sentence that the judge imposed. But suppose further that the defendant pled guilty, and in the course of doing so admitted distribution of the necessary amount of drugs. The defendant can't show that "substantial rights" were affected, because the defendant himself admitted the same fact that the Apprendi claim is based on. See United States v. Duarte , 246 F.3d 56 (1 st Cir. 2001). Conversely, if the defendant went to trial and put on evidence to challenge the government's evidence as to the amount or kind of drugs allegedly distributed, then the Apprendi violation did affect his substantial rights. United States v. Nordby , supra. Thus, a petitioner raising an Apprendi claim should do everything possible to show that the factual element on which the Apprendi claim is based was never admitted to by the defendant; and/or that the evidence relied on to support the element was challenged by the defendant and undermined by other, contrary evidence.

[Kent Russell specializes in criminal defense, appeals, and habeas corpus. He is the author of the "California Habeas Handbook" which explains habeas corpus and the AEDPA, and can be purchased ($25, incl. return postage for prisoners) from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115.] "

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login