On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 94-cr-00008-1) District Judge: Hon. Harvey Bartle, III
Before: Sloviter, McKEE, and Rosenn, Circuit Judges
The opinion of the court was delivered by: Sloviter, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) December 19, 2002
The issue presented in this appeal is whether the rule of law announced by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), applies retroactively to cases on collateral review. The courts of appeals that have considered the issue have uniformly held that Apprendi does not apply retroactively to cases on collateral review. We also so hold. See also United States v. Jenkins, No. 01-1722 (3d Cir. June 18, 2003).
Appellant Andre Swinton was charged with various drug offenses in a six-count superseding indictment returned in 1994. He was found guilty after a jury trial of one count of conspiracy to distribute more than fifty grams of cocaine base (crack), in violation of 21 U.S.C. § 846 (Count One), one count of distribution of more than fifty grams of cocaine base (crack) within 1,000 feet of a school, in violation of 21 U.S.C. § 860 (Count Three), two counts of distribution of more than fifty grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Counts Four and Five), and retaliation against a witness/informant in violation of 18 U.S.C. § 1513 (Count Six).
The District Court sentenced Swinton to 324 months incarceration on Counts One, Three, Four, and Five, and 120 months incarceration on Count Six, all terms to run concurrently, followed by ten years of supervised release. It also imposed a $5,000 fine and a $250 special assessment. On appeal, this court affirmed the judgment and sentence. United States v. Swinton, 151 F.3d 1027 (3d Cir. 1998) (unpublished table decision). The United States Supreme Court denied Swinton's petition for a writ of certiorari on October 5, 1998. Swinton v. United States, 525 U.S. 857 (1998).
On August 12, 1999, within a year of the final judgment in his case, Swinton filed a pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, raising various ineffective assistance of counsel claims. However, because Swinton did not properly complete the requisite forms for filing a § 2255 motion, the District Court ordered him to do so within thirty days. Swinton did file the necessary forms on October 8, 1999, but once again he failed to follow the requisite procedure. Instead of listing his grounds for relief on the § 2255 motion form as required by the local rules, Swinton referred the court to an attached memorandum. The District Court dismissed the motion without prejudice. On November 29, 1999, only slightly more than two weeks after the District Court's dismissal, Swinton filed another § 2255 motion setting forth his ineffective assistance of counsel claims on the motion form and, on August 2, 2000, the District Court ordered the Government to file a response.
On September 8, 2000, before the Government filed its response, Swinton filed a document titled "Supplement to Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255" (the "Supplemental Motion") in which he moved the District Court to allow him to incorporate an additional issue into his § 2255 motion. Swinton claimed that his rights to due process and a jury trial were violated because the jury was instructed that the Government need not prove the quantity and identity of the drugs involved in his case. Although not mentioned in his filing, this claim was based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), decided June 26, 2000, less than three months earlier. In Apprendi, the Court held that "[o]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." Id. at 490.
The Government filed a response to the § 2255 motion, contending that there was no merit to Swinton's ineffective assistance of counsel claims. The Government further argued that the Supplemental Motion should be denied because Apprendi has not been made retroactive to cases on collateral review, and accordingly the Supplemental Motion was time-barred under the statute of limitations provision of § 2255. Also, it argued that even if Apprendi were applicable, Swinton's claim would fail because the District Court did not commit plain error in sentencing Swinton based on a drug quantity that was supported by credible and undisputed evidence.
The District Court held that the November 29, 1999 § 2255 motion was untimely because Swinton filed it more than one year after his judgment of conviction became final. In the alternative, it ruled that Swinton's ineffective assistance of counsel claims lacked merit. The District Court also ruled that Swinton's Supplemental Motion raising his Apprendi claim is a second or successive § 2255 motion that requires authorization from this court before it can be filed in the District Court. It denied the Supplemental Motion without prejudice and with leave to file the necessary motion in this court. Swinton filed a timely notice of appeal and a request for a certificate of appealability with this court.
We granted a certificate of appealability limited to the following issues:
(1) [W]hether the language "made retroactively applicable to cases on collateral review" in the statute of limitations set forth in 28 U.S.C. § 2255(3) is distinguishable from the language "made retroactive to cases on collateral review by the Supreme Court" in the requirement for authorization to file a second or successive Section 2255 motion, as that language was discussed in Tyler v. Cain, 121 S.Ct. 2478 (2001) and In re: Turner, 267 F.3d 225, 227-28 (3d Cir. 2001).
(2) If the language is distinguishable, is the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), retroactively applicable on collateral review, and does it make Swinton's Supplemental Section 2255 motion timely under § 2255(3).
The court appointed counsel to represent Swinton.*fn1
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). We review issues of statutory interpretation de novo. Kapral v. United States, 166 F.3d 565, 567 (3d Cir. 1999).
A. Statute of Limitations Under 28 U.S.C. § 2255
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to a motion to vacate a sentence filed under § 2255. Paragraph 6 of § 2255 provides that the limitation period shall run from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255 (emphasis added).
Swinton filed his Supplemental Motion more than one year after his judgment of conviction became final. However, because he claims a violation of Apprendi, Swinton argues that the Supplemental Motion was timely under subparagraph (3) above because he filed it within a year after Apprendi was decided. Swinton can take advantage of that provision only if Apprendi creates a "right [that] has been  newly recognized by the Supreme Court and  made retroactively applicable to cases on collateral review." Id.
In Apprendi, defendant, who pled guilty to various state firearm offenses, was sentenced to an enhanced sentence under the New Jersey hate crime law. That statute provides for an extended term of imprisonment if the trial judge finds by a preponderance of the evidence that the defendant acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity. In the state courts and then in the Supreme Court of the United States, Apprendi challenged the constitutionality of the statute, arguing that "the Due Process Clause of the United States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt." Apprendi, 530 U.S. at 471. The Supreme Court agreed and held that "[o]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." Id. at 490.
The decision in Apprendi impacts both the statutory provision in paragraph 6 of 28 U.S.C. § 2255, which requires tolling the statute of limitations for certain claims of new rights recognized by the Supreme Court, and paragraph 8 of § 2255, which requires that second or successive claims must be certified by the court of appeals before they can be filed in the district courts. There are several requirements under each of those provisions and the language is somewhat different. Under paragraph 6 the right at issue must ...