United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice, District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge
criminal case is before the Court on Defendant Anthony
Baltimore's Amended Motion to Vacate, Set Aside, or
Correct a Sentence, pursuant to 28 U.S.C. § 2255 (Doc.
No. 299). The Magistrate Judge filed a Report and
Recommendations which recommended dismissal (the
“Report, ” ECF No. 334). Defendant filed timely
Objections (ECF No. 336). Judge Rice then recommitted the
matter for reconsideration in light of the Objections
(Recommittal Order, ECF No. 337). The United States has filed
no response to the Objections and its time to do so has
expired. Thus the Objections are ripe for consideration.
§ 2255 Motion pleads six Grounds for Relief (Amended
Motion, ECF No. 299). The Objections do not raise any issues
with the recommended dismissal of Grounds Four and Five and
they will not be further discussed. The other Objections take
the grounds for relief out of order, but the analysis here
will follow the order in which the grounds were pleaded.
One: Conviction on Count Five Unconstitutional Under
Alleyne v. United States. 570 U.S. 99
First Ground for Relief, Baltimore asserts his conviction on
Count 5 for violating the continuing criminal enterprise
statute, 21 U.S.C. §§ 848(a), (b)(1), and (b)(2)(A)
is unconstitutional because neither the jury nor the trial
judge found that he was “the principal administrator,
organizer, or leader of the enterprise.”
Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court held “under the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of
the Sixth Amendment, any fact (other than prior conviction)
that increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt.” Id. at ___.
Eventually the Supreme Court held any fact that makes a
defendant eligible for the mandatory minimum sentence for an
offense is an “element” which must be submitted
to the jury. Alleyne v. United State, . 570 U.S. 99
(2013), overruling Harris v. United States, 536 U.S.
was decided almost a year after the Sixth Circuit affirmed
Mr. Baltimore's conviction. The Report concluded
Alleyne would provide no relief to Baltimore because
it was not retroactively applicable to cases pending on
collateral review (Report, ECF No. 334, PageID 8478, relying
on In re: Mazzio, 756 F.3d 487 (6th Cir. 2014), and
Rogers v. United States, 561 Fed.Appx. 440
(6th Cir. 2014), cert denied, 135 S.Ct. 500
(2014). The Report disagreed with Baltimore's argument
that the relevant language in Rogers was dictum (ECF
No. 334, PageID 8478-79).
Objections do not respond to that point, but assert that
Alleyne is retroactively applicable on collateral
review by analogy to Montgomery v. Louisiana, 136
S.Ct. 718 (2016). In Montgomery the Supreme Court
declared that its prior decision in Miller v.
Alabama, 132 S.Ct. 2455 (2012), announced a new
substantive rule of constitutional law, to wit, that
mandatory life sentences without parole for juvenile
offenders were unconstitutionally cruel and unusual
punishment. Montgomery concluded that
Miller was therefore applicable on collateral
review. Baltimore had called Montgomery to the
Magistrate Judge's attention (ECF No. 331), but the
Report did not discuss the case and it therefore requires
to two narrow exceptions, a case that is decided after a
defendant's conviction and sentence become final, as
Alleyne was here, may not provide the basis for
federal habeas relief if it announces a new rule. Graham
v. Collins, 506 U.S. 461 (1993); Stringer v.
Black, 503 U.S. 222 (1992); Teague v. Lane, 489
U.S. 288 (1989).
exceptions to the Teague rule, however, permit the
retroactive application of a new rule whenever: 1) the rule
places certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe or otherwise prohibits imposition of a certain type
of punishment for a class of defendants because of their
status or offense; or 2) the rule announces a new
“watershed” rule of criminal procedure
implicating the fundamental fairness and accuracy of the
criminal proceeding.” In re Carl Green, 144
F.3d 384, 386 (6th Cir. 1998), citing Caspari
v. Bohlen, 510 U.S. at 396.
Supreme Court decision announces a new rule within the
meaning of Teague where the issue addressed was
susceptible to debate among reasonable minds. Butler v.
McKellar, 494 U.S. 407, 412-415 (1990). A new rule is
“a rule that ... was not dictated by precedent
existing at the time the defendant's conviction became
final.” Saffle v. Parks, 494 U.S. 484, 488
(1990), quoting Teague v. Lane, 489 U.S. 288, 301
(1989)(emphasis in original). Alleyne announced a
new rule because it explicitly overruled Harris.
rule in Crawford v. Washington, 541 U.S. 36 (2004),
interpreting the Confrontation Clause is a new rule, but does
not fall within the “watershed” exception to
Teague. Whorton v. Bockting, 549 U.S. 406
(2007). As of February 28, 2007, the date Whorton
was decided, the only rule the Supreme Court has identified
as qualifying under the “watershed” exception is
that adopted in Gideon v. Wainwright, 372 U.S. 335
“A rule is substantive rather than procedural if it
alters the range of conduct or the class of persons that the
law punishes.” Schriro, 542 U.S., at 353, 124
S.Ct. 2519, 159 L.Ed.2d 442. “This includes decisions
that narrow the scope of a criminal statute by interpreting
its terms, as well as constitutional determinations that
place particular conduct or persons covered by the statute
beyond the State's power to punish.” Id.,
at 351-352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (citation
omitted); see Montgomery, supra, at, 136
S.Ct. 718, 730, 193 L.Ed.2d 599, 615). Procedural rules, by
contrast, “regulate only the manner of
determining the defendant's culpability.”
Schriro, 542 U.S., at 353, 124 S.Ct. 2519, 159
L.Ed.2d 442. Such rules alter “the range of permissible
methods for determining whether a defendant's conduct is
punishable.” Ibid. “They do not produce
a class of persons convicted of conduct the law does not make
criminal, but merely raise the possibility that someone
convicted with use of the invalidated procedure might have
been acquitted otherwise.” Id., at 352, 124
S.Ct. 2519, 159 L.Ed.2d 442.
Welch v. United States, 576 U.S. ___, 136 S.Ct. 1257
Under the analysis in Montgomery, the
Alleyne rule is a new substantive rule of law
because it established that a defendant cannot be punished
(in this case a mandatory life sentence) for certain primary
conduct unless the facts supporting the aggravated level of
punishment are submitted to a jury and proven beyond a
reasonable doubt, regardless of whether the defendant could
have received the same sentence with or without that fact.
(Objections, ECF No. 334, PageID 8547). When the quoted
language is parsed, it facially refutes the proposition for
which it is cited. Alleyne does not place
“certain primary conduct” entirely beyond
punishment, but conditions such punishment on a submitting
the facts to a jury and obtaining a verdict. Thus
Alleyne is in the line of cases beginning with
Apprendi which impose procedural limits on imposing
certain enhancements of criminal punishment.
Apprendi itself does not apply retroactively as it
is not a watershed rule of criminal procedure. Goode v.
United States, 305 F.3d 378 (6th Cir. 2002).
authority holding Alleyne is not retroactively
applicable on collateral review includes United States v.
Reyes, 755 F.3d 210 (3rd Cir. 2014);
United States v. Redd, 735 F.3d 91 (2nd
Cir. 2013); United States v. Hoon, 2014 U.S. App.
LEXIS 15408 (10th Cir. 2014); In re
Payne, 733 F.3d 1027 (10th Cir. 2013);
Simpson v. United States,721 F.3d 875
(7th Cir. 2013); United States v. Taylor,
2014 U.S. Dist. ...