Eugene A. Fischer v. United States

Citations: 285 F.3d 596; 2002 U.S. App. LEXIS 6072; 2002 WL 501054Docket: 98-1803

Court: Court of Appeals for the Seventh Circuit; April 4, 2002; Federal Appellate Court

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Eugene A. Fischer sought habeas relief from his conviction of being the principal administrator of a continuing criminal enterprise (CCE), asserting that his conviction violated the precedent set in Richardson v. United States. The district court denied his habeas petition, and the Seventh Circuit affirmed this decision. Fischer had previously been convicted of conspiring to distribute over 300 tons of marijuana and was sentenced to life imprisonment under the drug kingpin statute, along with a concurrent 35-year sentence for conspiracy. In his habeas petition filed under 28 U.S.C. § 2255, Fischer raised multiple claims, including challenges to the prosecutor's authority, grand jury procedures, the trial judge's potential conflict of interest, ineffective assistance of counsel, and the admission of prejudicial evidence. Notably, he did not contest jury unanimity regarding his CCE conviction in his habeas petition, having previously raised this issue on direct appeal.

Additionally, Fischer filed a Rule 35 motion in 1993 to correct his sentence, which was partially granted in 1997 based on the Supreme Court's ruling in Rutledge v. United States, which determined that a conspiracy under § 846 is a lesser included offense of a CCE under § 848. Consequently, the district court vacated Fischer's conspiracy conviction to avoid double jeopardy, but his CCE conviction and life sentence remained intact. Fischer's appeal of the district court's decision to vacate his conspiracy conviction instead of his CCE conviction was also affirmed by the Seventh Circuit.

Fischer's Rule 35 appeal challenged the lack of jury unanimity regarding his Continuing Criminal Enterprise (CCE) convictions based on the Supreme Court's ruling in *Richardson*, which mandates that juries must unanimously agree on both the occurrence of a continuing series of violations and the specific violations involved. The court determined that Fischer's challenge pertained to his underlying conviction rather than his sentence, making Rule 35 an inappropriate vehicle for his claim; instead, such challenges should be raised under 28 U.S.C. § 2255. Following the denial of Fischer's habeas petition, he sought a certificate of appealability, which was initially denied. However, he later renewed his request and petitioned to include a *Richardson* claim, which was granted limited to that issue.

The government argued a lack of jurisdiction under § 2255, citing a one-year limitation period that starts when a right is newly recognized by the Supreme Court and made retroactive on collateral review. While it is acknowledged that *Richardson* is a "newly recognized" right and generally applies retroactively, the government contended that only the Supreme Court can determine retroactive applicability. This argument was rejected, affirming that lower courts can also declare retroactivity. The court confirmed that Fischer's motion was filed before the date (*June 12, 2000*) when *Richardson* was deemed retroactively applicable, thus establishing jurisdiction to hear his claim under § 2255.

Jurisdiction exists under 28 U.S.C. § 2255(3) to hear Fischer's Richardson claim; however, it is not properly before the court because Fischer did not present this claim in a timely petition to the district court. To consider a ground for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996, it must be raised first in the district court. If an issue is not presented at that level, it is waived on appeal, limiting the inmate's options to specific rules governing second or successive collateral attacks. The government argues that Fischer's appeal should be denied since he did not challenge the lack of jury unanimity before the district court. This situation mirrors the case of Gray-Bey v. United States, where a defendant was barred from raising a new claim on appeal that had not been presented to the district court. Fischer's attempt to argue his Richardson claim based on a previous court statement is flawed; that statement merely indicated the correct procedural method for raising the claim and did not exempt him from necessary procedural compliance. Fischer's failure to challenge the jury unanimity issue in his original petition results in a waiver, leading to the affirmation of the district court's denial of his habeas petition.