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In re Olopade

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


April 11, 2005

IN RE: ANTHONY BOLA OLOPADE, PETITIONER

The opinion of the court was delivered by: Sloviter, Circuit Judge

PRECEDENTIAL

On Request for Permission to File a Second or Successive Habeas Corpus Petition Pursuant to 28 U.S.C. § 2244(b)

Submitted on Motion Under Third Circuit LAR 34.1(a) March 10, 2005

Before: SLOVITER, NYGAARD, and FUENTES, Circuit Judges

OPINION OF THE COURT

Anthony Olopade has filed an application in this court pursuant to 28 U.S.C. § 2244 seeking permission to file a second or successive motion under 28 U.S.C. § 2255 to vacate his sentence. In ruling on that application, we must decide whether the United States Supreme Court's recent decision in United States v. Booker, 543 U.S., 125 S. Ct. 738 (2005), applies to persons seeking permission to file second or successive § 2255 motions. In keeping with the holdings of all the other courts that have addressed related issues, *fn1 we hold that Booker cannot be relied on for that purpose.

I.

In 1998, a jury convicted Anthony Olopade in the United States District Court for the District of New Jersey of conspiracy to import heroin. The District Court thereafter imposed a sentence of 240 months imprisonment. On direct appeal, this court affirmed Olopade's conviction and sentence. United States v. Olopade, 205 F.3d 1330 (3d Cir. 1999) (table).

In 2001, Olopade filed a motion for a writ of habeas corpus under 28 U.S.C. § 2255 in the United States District Court for the District of New Jersey. In that motion, Olopade claimed, inter alia, that (1) his sentence violated the principle established in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the quantity of narcotics was not proven to the jury beyond a reasonable doubt; (2) that the indictment was defective because it failed to allege a drug amount; and (3) that his trial counsel was ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). On April 24, 2003, the District Court entered a memorandum and order denying Olopade's motion; thereafter, this court denied Olopade's request for a certificate of appealability ("COA").

In 2004, relying on the Supreme Court's decision in Blakely v. Washington, 542 U.S., 124 S. Ct. 2531 (2004), Olopade sought this court's authorization under 28 U.S.C. § 2244 to file a second or successive motion to vacate his sentence under 28 U.S.C. § 2255. We denied Olopade's request in an unpublished order dated September 29, 2004.

("Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005."); Gerrish v. United States, 353 F. Supp. 2d 95, 96 (D. Me. 2005) ("Booker... [is] not applicable to cases that were not on direct appeal when [it was] decided."); United States v. Johnson, 353 F. Supp. 2d 656, 658 (E.D. Va. 2005) (finding that Booker does "not apply retroactively on collateral review").

In the wake of the Supreme Court's decisions in Booker, Olopade has yet again sought this court's authorization under § 2244 to file a second or successive habeas corpus motion. In his pro se application titled "Request for Permission to File a Second or Successive Petition in the District Court," which was filed with this court on February 28, 2005, Olopade argues that a second or successive § 2255 motion is appropriate in his case because such a motion would rely on new rules of law that were previously unavailable, i.e., the holdings in Booker. In response, the United States, by way of a letter motion dated March 10, 2005, has asked this court to dismiss Olopade's most recent § 2244 request. *fn2 We will do so.

II.

As we discussed in more detail in our opinion in United States v. Ordaz, 398 F.3d 236, 238-39 (3d Cir. 2005), the Supreme Court held this term in United States v. Booker that "the Sixth Amendment as construed in Blakely does apply to the [Federal] Sentencing Guidelines." Booker, 543 U.S. at, 125 S. Ct. at 746 (Stevens, J.). Booker was decided by two opinions of the Court. In the first opinion, authored by Justice Stevens for a majority of five, the Court reaffirmed the holding in Apprendi that "[a]ny 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," and the Court extended that rule to the Federal Sentencing Guidelines. Booker, 543 U.S. at, 125 S. Ct. at 756 (Stevens, J.). The second opinion, authored by Justice Breyer for a majority of five, focused on the remedy. The Court held that 18 U.S.C. § 3553(b)(1), the provision of the Sentencing Reform Act of 1984 that made the Guidelines mandatory, was incompatible with the Court's constitutional ruling; thus, the Court severed and excised § 3553(b)(1). Similarly, 18 U.S.C. § 3742(e), "the provision that set[] forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range," was also severed and excised because it contained critical cross-references to the section that made the Guidelines mandatory. Booker, 543 U.S. at, 125 S. Ct. at 764 (Breyer, J.). The net result was to delete the mandatory nature of the Guidelines and transform them to advisory guidelines. In his most recent 28 U.S.C. § 2244 application, Olopade seeks to avail himself of the two Booker holdings.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), however, has "greatly restrict[ed] the power of federal courts to award relief to... prisoners who file second or successive habeas corpus applications." Tyler v. Cain, 533 U.S. 656, 661 (2001). Specifically, AEDPA mandates that:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain–

(1) [certain types of newly discovered evidence]; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255. The certification process to which § 2255 refers is 28 U.S.C. § 2244(b)(3). Section 2244(b)(3) sets forth the protocols and standards for requests for second or successive habeas corpus applications in the court of appeals. Among other requirements, a prisoner in Olopade's procedural posture must make "a prima facie showing that the application satisfies the requirements of this subsection." 28 U.S.C. § 2244(b)(3)(C) (emphasis added). Thus, § 2255, read in conjunction with § 2244(b)(3)(C), makes explicit that before we can grant Olopade permission to file a second or successive motion in the District Court, he must first make out a "prima facie showing" that his request to file a second or successive motion relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." See generally In re Turner, 267 F.3d 225, 227 (3d Cir. 2001).

This issue is controlled by the decision in Tyler v. Cain, 533 U.S. 656 (2001). In Tyler, the Supreme Court held that "a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive." 533 U.S. at 663 (internal quotations omitted). *fn3 After Tyler, the relevant question is not whether the Supreme Court should make a case applicable retroactively to cases on collateral review but whether it has done so; likewise, it is insufficient that two or more of the Court's decisions read together merely suggest that a rule has retroactive effect. Rather, the Supreme Court must have explicitly held, or two or more of its decisions when read together must absolutely dictate, that a particular rule is retroactively applicable to cases on collateral review. In re Turner, 267 F.3d at 229.

It is clear that the Supreme Court has not expressly held that Booker is applicable to cases on collateral review. In the Booker decision itself, the Court did not mention collateral review and only expressly applied its holdings to cases on direct appeal. Booker, 125 S. Ct. at 769 (Breyer, J.) ("[W]e must apply today's holdings – both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act – to all cases on direct review."). *fn4 And, in no subsequent case has the Supreme Court addressed, let alone decided, whether Booker has retroactive effect. See Bey, 399 F.3d at 1269 ("The Court decided Booker on direct appeal and did not expressly declare, nor has it since declared, that Booker should be applied retroactively to cases on collateral review.").

Of course, "just because the [Supreme] Court has never specifically considered the retroactivity of [a particular decision] does not foreclose the possibility that the Court has 'made' [the decision] retroactive on collateral review." In re Turner, 267 F.3d at 229. Rather, as noted above, an amalgam of Supreme Court holdings could have "made" Booker applicable retroactively to cases on collateral review if the holdings, when read together, "dictate" such a result. In re Turner, 267 F.3d at 229.

Here, however, there is no combination of Supreme Court decisions that "dictates" that Booker has retroactive force on collateral review; indeed, the most analogous Supreme Court case, Schriro v. Summerlin, 542 U.S., 124 S. Ct. 2519 (2004), strongly suggests precisely the opposite. In Schriro, the Court held that Ring v. Arizona, 536 U.S. 584 (2002), in which the Court applied Apprendi and found unconstitutional the provisions of the State of Arizona's death penalty sentencing scheme that allowed a judge rather than a jury to find aggravating factors, did not announce a "watershed rule[ ] of criminal procedure" applicable retroactively to cases on collateral review. Schriro, 542 U.S. at, 124 S. Ct. at 2524; accord United States v. Swinton, 333 F.3d 481, 491 (3d Cir. 2003) ("[W]e hold that Apprendi does not apply retroactively to cases on collateral review."). Considering that Booker, like Ring, is simply the application of the principles of Apprendi to a particular subject, we conclude that the Schriro holding strongly suggests that Booker is likewise not retroactively applicable to cases on collateral review. See McReynolds, 397 F.3d at 480 ("Although the Supreme Court did not address the retroactivity question in Booker, its decision in Schriro... is all but conclusive on the point.").*fn5

In conclusion, we will deny Olopade's request for leave to file a second or successive habeas corpus motion because he cannot make a "prima facie showing," 28 U.S.C. § 2244(b)(3)(C), that Booker constitutes "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," 28 U.S.C. § 2255.

Of course, our holding today does not address the underlying merits of Olopade's claims under Booker. *fn6 In such a situation, it is appropriate to deny Olopade's request to file a second or successive motion without prejudice in the event that the Supreme Court subsequently makes Booker retroactive to cases on collateral review. See In re Turner, 267 F.3d at 231.*fn7

III.

For these reasons, we will deny without prejudice Olopade's application for permission to file a second or successive habeas corpus motion and will grant the United States' motion to dismiss.


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