Becak, 954 F.2d 386, 387-88 (6th Cir.) (time spent at mother's house as condition of release on bond), cert. denied, 504 U.S. 945, 119 L. Ed. 2d 211, 112 S. Ct. 2286 (1992).
In United States v. Rodgers, 466 U.S. 475, 80 L. Ed. 2d 492, 104 S. Ct. 1942 (1984), the Supreme Court applied its interpretation of a criminal statute retroactively, despite the defendant's alleged reliance on prior circuit precedent, because "the existence of conflicting cases from other Courts of Appeals made review of that issue by this Court and decision against the position of the respondent reasonably foreseeable." Id. at 484; see Moskal v. United States, 498 U.S. 103, 114 n.6, 112 L. Ed. 2d 449, 111 S. Ct. 461 (1990) (defendant's "contention that he was 'entitled to rely' on one Court of Appeals decision . . . is wholly unpersuasive"). Thus, "under Rodgers, the mere existence of conflicting decisions reached by other courts of appeals makes it 'reasonably foreseeable' that the Supreme Court will resolve the circuit split and decide the issue adversely to the defendant." United States v. Russotti, 780 F. Supp. 128, 135 (S.D.N.Y. 1991).
In United States v. Zuniga, 18 F.3d 1254, 1259 (5th Cir.), cert. denied, 513 U.S. 880, 130 L. Ed. 2d 142, 115 S. Ct. 214 (1994), the court retroactively applied a Supreme Court decision to the defendant despite the defendant's ex post facto arguments. Prior to the Supreme Court's decision, the Eleventh Circuit and the District of Columbia Circuit had disagreed with a Ninth Circuit ruling on the relevant issue. Citing Rodgers, the Zuniga court concluded that "where a split exists among the circuits, it is reasonably foreseeable that the Supreme Court may resolve that conflict adversely to the defendant." Zuniga, 18 F.3d at 1259. For the same reasons, the disagreement among the Circuit Courts of Appeals regarding the pending issue renders the Koray decision reasonably foreseeable.
The fact that the Third Circuit had decided Koray v. Sizer in Petitioner's favor prior to his release on bail does not change this result. In United States v. Walsh, 770 F.2d 1490, 1492-93 (9th Cir. 1985), Walsh claimed to have relied upon a Ninth Circuit decision predating his conduct which was subsequently reversed by the Supreme Court. See United States v. Albertini, 710 F.2d 1410 (9th Cir. 1983), rev'd, 472 U.S. 675, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985). In Walsh, however, the Ninth Circuit held that "the difficulty with Walsh's position is that he could not properly rely on our decision in Albertini, since that decision never became settled circuit law. To the contrary, it was reversed by the Supreme Court." Walsh, 770 F.2d at 1492; see United States v. Angiulo, 847 F.2d 956, 966 (1st Cir.) (finding that defendant's reliance on circuit precedent did not create an ex post facto violation because "the Supreme Court's reversal of that decision was reasonably foreseeable") (citing Rodgers, 466 U.S. at 484), cert. denied, 488 U.S. 852, and cert. denied, 488 U.S. 928, 102 L. Ed. 2d 332, 109 S. Ct. 314 (1988). Thus, Petitioner could not have relied on Koray v. Sizer.
Moreover, in Koray v. Sizer the petition to the Supreme Court for a writ of certiorari had already been filed when Petitioner posted bail. The Third Circuit issued its ruling on April 25, 1994. Koray v. Sizer, 21 F.3d 558. Although the writ of certiorari was not granted until January 13, 1995, Reno v. Koray, 513 U.S. 1106, 115 S. Ct. 787, 130 L. Ed. 2d 779, (1995), the petition must have been filed by the end of July, 1994. See Sup. Ct. R. 13.1 (petition must be filed within 90 days of Court of Appeals' judgment); Sup. Ct. R. 13.2 (late-filed petition is "jurisdictionally out of time"). Thus, by the time of Petitioner's arrest in October of that year, a petition for a writ of certiorari must have been filed with the Supreme Court on this issue which had split the Circuit Courts of Appeals. Cf. Russotti, 780 F. Supp. at 134 (finding that Supreme Court's grant of a writ of certiorari prior to relevant conduct made the Court's subsequent ruling "especially" reasonably foreseeable). For these reasons, the Supreme Court's decision in Koray was reasonably foreseeable, and its retroactive application to Petitioner accordingly does not violate the ex post facto prohibition of the Constitution.
For the reasons set forth above, the petition for a writ of habeas corpus will be denied. The Court will enter an appropriate Order.
Dated: January 7, 1998
STEPHEN M. ORLOFSKY
United States District Judge
This matter having come before the Court on the Petition of JohnFerrante for a writ of habeas corpus, John Ferrante appearing pro se, and Faith S. Hochberg, Esq., United States Attorney, Louis J. Bizzarri, Esq., Assistant United States Attorney, and Roberta Truman, Esq., Attorney-Advisor, appearing on behalf of Respondents; and,
The Court having considered the Petition for a Writ of Habeas Corpus and documents filed in support thereof, Petitioner's Motion to Amend Court's Order of September 18, 1997, Respondents' Answer and documents filed in support thereof, and Petitioner's Reply and documents filed in support thereof, for the reasons set forth in the Court's OPINION, filed concurrently with this ORDER;
IT IS, on this 7th day of January, 1998, hereby ORDERED that the Petition for a writ of habeas corpus is DENIED.
STEPHEN M. ORLOFSKY
United States District Judge