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The rule regarding fact-finding for criminal sentences that was announced in the U.S. Supreme Court’s far-reaching Apprendi decision does not apply retroactively to initial habeas corpus petitions, the 2nd U.S. Circuit Court of Appeals has ruled. A divided three-judge panel, addressing an issue of first impression in the circuit, said it was joining the “chorus” of federal appellate courts on retroactivity under Apprendi. In that case, the Supreme Court ruled that any fact — other than a prior conviction — that “increases a defendant’s term beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” While Apprendi dealt with New Jersey’s hate crimes statute, its logic has been applied most notably in drug cases, where defendants have successfully challenged sentence enhancements based on a post-conviction finding of drug quantity by a judge, and not a jury. In the case before the 2nd Circuit, Coleman v. United States, 01-2262, William Coleman was challenging his 20-year sentence, which was imposed after a judge found by a preponderance of the evidence that Coleman had possessed more than 50 grams of cocaine base. Coleman’s appeal of his sentence ended when the Supreme Court denied certiorari. He then moved before U.S. District Judge William K. Sessions in Vermont to have his sentence vacated through a motion for habeas corpus filed under 18 U.S.C. � 2255. Although his motion was at first based on ineffective assistance of counsel and a claim challenging his guilty plea as involuntary, he later added a claim under Apprendi following the Supreme Court’s decision in that case. But when the motion was denied, Coleman turned to the 2nd Circuit. Writing for the court, Judge Robert Sack said the first issue to confront in determining retroactivity is whether the Supreme Court was announcing a “new rule” in the Apprendi case. “In light of the dramatic changes wrought by Apprendi, it unquestionably announced a new rule of law,” he said. Next, he said, the question of retroactivity turns on whether the new rule is substantive or procedural. Save a few exceptions, procedural rules do not have retroactive force. Sack said that the Apprendi Court made it clear that the announced rule was procedural in nature. “The holding in Apprendi dictates only who must decide certain factual disputes and under what standard of proof they must be decided,” he said. “It does not concern the scope of the criminal statutes, the relationship between the defendant’s conduct and the severity of his punishment, nor anything else of substantive import.” Coleman had argued that Apprendi was substantive because it made the quantity of drugs an “element of the offense” and not merely a sentencing factor. But Judge Sack said that in Apprendi and in the 2nd Circuit’s ruling in United States v. Thomas, 274 F.3d 655 (2001), “the term ‘element’ was used simply as shorthand for a set of procedural requirements.” Rejecting Coleman’s argument that Apprendi announced a “watershed rule,” Sack said the 2nd Circuit was affirming the judgment of the lower court in denying the petition. Judge Barrington D. Parker Jr. concurred in the result because he felt the Coleman sentence did not violate the rule in Apprendi. But Parker disagreed with the majority’s analysis on retroactivity because he viewed the rule of Apprendi as substantive. “ Apprendi‘s innovation was not in identifying the procedures that apply to an element of a crime, but, rather, in defining what constitutes an element of a crime,” he said. Chief Judge John M. Walker Jr. joined in the majority opinion. Devin McLaughlin and Peter F. Langrock of Langrock Sperry and Wool in Middlebury, Vt., represented Coleman. Assistant U.S. Attorney David V. Kirby represented the government.

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