Court: Court of Appeals for the Seventh Circuit; September 12, 2001; Federal Appellate Court
Billy Ray Ashley filed an application for a collateral attack in the Seventh Circuit following the Supreme Court's decision in Apprendi v. New Jersey. His initial request for leave was dismissed because he had not previously filed a collateral attack. Subsequently, Ashley's motion under 28 U.S.C. § 2255 was dismissed by the district court as untimely. Ashley's conviction had become final before the Antiterrorism and Effective Death Penalty Act (AEDPA) took effect on April 24, 1996, which established a one-year limitation period for such motions. Ashley had one year from the date of the AEDPA's enactment to initiate his collateral attack; however, he only filed on August 28, 2000. The district court ruled that the motion was barred by the statute of limitations and denied a certificate of appealability.
The court highlighted that the limitation period for § 2255 motions runs from the latest of four specified events, with the district court applying subparagraph (1)—the date the conviction became final—as the relevant limit. Ashley contended that his filing was timely under subparagraph (3), arguing that Apprendi recognized a new constitutional right applicable to his case. The district court rejected this argument, stating that a new decision does not open a filing window for prisoners unless the Supreme Court explicitly declares the decision retroactive for collateral review. The district court's reasoning was supported by precedent which indicated that appellate courts could only authorize second or successive applications if the Supreme Court had made a retroactivity determination. The court concluded that while Apprendi signified a novel constitutional ruling, it did not retroactively apply to Ashley’s case without a specific Supreme Court declaration.
An initial petition for collateral review must be filed within one year of a decision that is made retroactively applicable. In contrast, a second petition relies on a new rule of constitutional law that the Supreme Court has made retroactive. The term "made retroactive" in the first formulation allows ambiguity, while the second clearly assigns the retroactivity decision to the Supreme Court. This distinction suggests that lower courts may also determine retroactivity for initial petitions, as the Supreme Court’s ruling in Tyler indicates that such courts can issue holdings on retroactivity.
Three key reasons support the ability of lower courts to decide on retroactivity for initial petitions: first, it allows the question to reach the Supreme Court for a conclusive ruling; second, the tight deadline of 30 days for second petitions necessitates a straightforward application of existing decisions, while initial petitions can be assessed more thoroughly; and third, the procedural restrictions for successive petitions are stricter, thus emphasizing the need for initial petitions to be evaluated fairly.
The one-year filing period for initial petitions starts not from the Supreme Court's decision but from when that decision is made retroactive. This creates potential confusion if different circuits declare the same decision retroactive at different times. For example, if the Ninth Circuit declares a decision retroactive on January 15, while the Seventh Circuit does so on July 15, the question arises as to when the one-year period should commence. The later date seems more logical for consistent application.
Current case law indicates that some circuits have ruled that the decision in Apprendi does not apply retroactively on collateral review, with various courts affirming this position without establishing retroactivity for collateral attacks.
No court has yet determined if the Supreme Court's decision in Apprendi is retroactive. It remains unclear whether only prisoners with convictions finalized the year before Apprendi can seek this declaration, or if others must wait for a state court ruling on retroactivity. Section 2255 para. 6(3) and section 2244(b)(2)(A) do not prevent district courts from declaring retroactivity based on Teague principles, and the timeliness of such petitions hinges on this determination. Just as district courts assess jurisdictional issues in civil cases, they should also decide if a Supreme Court ruling applies retroactively, affecting the timeliness of a collateral attack.
There is conflicting circuit authority on this issue. The Seventh Circuit's Montenegro case aligns with the district court's stance, while the Fifth Circuit's Lopez case argues for the authority of both district and appellate courts to decide on retroactivity. The decision to overrule Montenegro, although unusual, is justified to resolve this conflict. The court noted that the Montenegro decision did not adequately address Lopez's reasoning and came before the Supreme Court's Tyler case, which provides further clarity on section 8(2).
The district court dismissed Ashley’s petition as untimely without determining if Apprendi retroactively applies to collateral attacks. The court has issued a certificate of appealability, recognizing the substantial nature of the underlying claim due to Apprendi. The case is remanded for a retroactivity determination, acknowledging the potential for Ashley to not qualify for relief under Apprendi if his sentence does not exceed certain thresholds. Additionally, if Ashley cannot demonstrate cause and prejudice for not raising the issue on direct appeal, the question of retroactivity becomes moot. The resolution of these matters is left to the district court, as they depend on facts not present in the appellate record. The opinion was reviewed by the court's active judges prior to release, and none requested an en banc hearing.
