In re Turner

Permission to file a second habeas corpus application in an attempt to vacate a sentence for crack cocaine distribution denied because petitioner failed to make a prima facie showing that his habeas corpus application contained a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

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Argued July 16, 2001

OPINION OF THE COURT

Carnell Turner seeks our permission to file a second habeas corpus application in the Eastern District of Pennsylvania in an attempt to vacate his 1996 sentence for crack cocaine distribution and conspiracy to distribute crack cocaine. Turner’s proposed habeas corpus application invokes the new rule of constitutional law announced by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 446 (2000). The legal issue presented by this case is whether the new rule found in Apprendi has been “made retroactive to cases on collateral review by the Supreme Court,” such that Turner may file a second habeas corpus application in the District Court. Following the Supreme Court’s recent pronouncements in Tyler v. Cain , 121 S. Ct. 2478 (2001), we hold that Apprendi has not been “made retroactive to cases on collateral review by the Supreme Court,” and accordingly will deny Turner permission to file a second application.

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