                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-1999

United States v Roberson
Precedential or Non-Precedential:

Docket 97-7309




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Filed October 14, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7309

UNITED STATES OF AMERICA,

v.

KEVIN ROBERSON,
Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 88-cr-00173)

(District Court Judge: Honorable William W. Caldwell)

Argued: November 19, 1998

Before: GREENBERG and ALITO, Circuit Judges,
and GODBOLD, Senior Circuit Judge*

(Opinion Filed: October 14, 1999)

       WILLIAM A. BEHE
       ERIC PFISTERER (ARGUED)
       OFFICE OF THE UNITED STATES
        ATTORNEY
       Federal Building
       228 Walnut Street
       Harrisburg, PA 17108

       Counsel for Appellee
_________________________________________________________________

* The Honorable John C. Godbold, United States Senior Circuit Judge for
the Court of Appeals for the Eleventh Circuit, sitting by designation.
       STEPHEN M. LATIMER (ARGUED)
       LOUGHLIN & LATIMER
       131 Main Street
       Suite 235
       Hackensack, NJ 07601

       Counsel for Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:

The question presented for our review is whether
applying AEDPA's gatekeeping provisions to a 28 U.S.C.
S 2255 motion filed after AEDPA's effective date would have
an impermissible retroactive result if the movantfiled his
first S 2255 motion prior to AEDPA's enactment. We
conclude that the application of AEDPA's gatekeeping
provisions to Kevin Roberson's second S 2255 motion would
have no impermissible retroactive result, and thus we hold
that amended SS 2244(b)(3)(A) and 2255 require us to deny
Roberson's request for authorization to proceed with his
second motion.

I.

On March 3, 1989, Kevin Roberson pleaded guilty to a
felony information charging him with conspiracy to
distribute crack cocaine, in violation of 21 U.S.C.
SS 841(a)(1) and 846, distribution of crack cocaine, in
violation of 21 U.S.C. S 841(a)(1), and aiding or abetting the
distribution of crack cocaine, in violation of 21 U.S.C.
S 841(a)(1) and 18 U.S.C. S 2. The District Court sentenced
Roberson to 30 years of imprisonment on both the
conspiracy and the distribution counts and ordered
Roberson to serve the terms concurrently. By means of a
judgment order, we affirmed Roberson's conviction on
appeal and rejected his contention that the District Court
lacked a reasonable factual basis to find by a
preponderance of the evidence that his offense involved the
distribution of at least 500 grams of cocaine base.

                               2
On July 17, 1991, Roberson, acting pro se, filed a motion
under 28 U.S.C. S 2255 to vacate, set aside, or correct his
sentence. See App. at 10-38. One of his arguments was
that the sentencing court "lacked sufficient facts upon
which to fairly or reasonably conclude that the defendant
was responsible for the distribution of 500 grams or more
of `crack', either individually or as a member of the
conspiracy." App. at 24. On October 7, 1991, the District
Court denied Roberson's S 2255 motion, holding that
Roberson could not raise this argument in his collateral
attack because we previously had rejected the same
argument on direct appeal. Appellant's Br. at Tab 6.
Roberson appealed, App. at 183, and we dismissed his
appeal on January 31, 1992, for failure to prosecute. App.
at 184.

On April 24, 1996, the President signed into law the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which,
among other things, revised the standards and procedures
governing S 2255 petitions. Prior to AEDPA's enactment,
federal courts denied second or successive S 2255 motions
if the government could demonstrate that the motion
constituted an abuse of the writ. See McCleskey v. Zant,
499 U.S. 467, 494 (1991). Courts excused an abuse of the
writ only if: (1) the applicant could establish cause and
prejudice -- i.e., that "some objective factor external to the
defense impeded counsel's efforts" to raise the claim earlier
and that "actual prejudice result[ed] from the errors of
which he complain[ed,]" id. at 493-94 (internal quotation
marks and citations omitted); or (2) the applicant could
demonstrate that "a fundamental miscarriage of justice
would result from a failure to entertain the claim," id.

AEDPA, however, replaced the abuse-of-the writ doctrine
articulated in McCleskey. Under AEDPA's new
"gatekeeping" provisions, an applicant seeking to file a
second or successive S 2255 motion must obtain from "the
appropriate court of appeals . . . an order authorizing the
district court to consider the application," 28 U.S.C.A.
SS 2244(b)(3)(A), 2255 (West Supp. 1999), and a court of
appeals may grant such an order only if the motion
contains:

                               3
       (1) newly discovered evidence that, if proven and
       viewed in light of the evidence as a whole, would be
       sufficient to establish by clear and convincing evidence
       that no reasonable factfinder would have found the
       movant guilty of the offense; or

       (2) a new rule of constitutional law, made retroactive to
       cases on collateral review by the Supreme Court, that
       was previously unavailable.

28 U.S.C.A. S 2255.

On May 28, 1997, Roberson filed a second S 2255 motion
in which he raised two grounds for relief. First, he claimed
that the sentencing court erred by applying United States
Sentencing Guidelines ("U.S.S.G.") S 2D1.1(c)'s
enhancement for cocaine base because the government had
failed to prove by a preponderance of the evidence that the
controlled substance involved in his offense was "crack," as
opposed to some other form of cocaine base. App. at 9.
Second, he claimed that his counsel at sentencing and on
direct appeal was constitutionally ineffective for failing to
raise this argument. Id.

The District Court dismissed Roberson's petition, holding
that it did not have authority under AEDPA to entertain
Roberson's second S 2255 motion unless we issued an
order authorizing it to do so. Appellant's Br. at Tab 4.
Roberson appealed. As we stated above, AEDPA's
amendments require S 2255 movants to file a motion in the
appropriate court of appeals for an order authorizing the
district court to consider a second or successive
application. See 28 U.S.C.A. S 2244(b)(3)(A). Recognizing
that the application of AEDPA's new gatekeeping provisions
to Roberson's second S 2255 motion might be impermissibly
retroactive, we requested that the parties address the
following question: whether applying AEDPA's gatekeeping
provisions to a second S 2255 motion, which the applicant
filed after AEDPA's effective date, would produce an
impermissible retroactive result if the applicant filed his
first S 2255 motion before AEDPA's enactment.1
_________________________________________________________________

1. Roberson also argues that if we preclude him from bringing his claims
under S 2255, he should be permitted to bring them through a petition
for a writ of habeas corpus under 28 U.S.C. S 2241(c)(3). Appellant's Br.
at 13. "Because there is no petition under S 2241 before us, we decline
to address this contention." See Fed. R. App. P. 22(a); United States v.
Ortiz, 136 F.3d 161, 168 (D.C. Cir. 1998).

                               4
II.

We recently addressed a similar retroactivity question in
In re Minarik, 166 F.3d 591 (3d Cir. 1999). In that case, the
prisoner filed his first federal habeas petition under 28
U.S.C. S 2254 prior to AEDPA's passage, butfiled his
second S 2254 motion after AEDPA's effective date. We held
that the application of AEDPA's gatekeeping provisions to
Minarik's second petition had no impermissible retroactive
effect. Id. at 608. In reaching this result, we were guided by
two Supreme Court decisions: Landgraf v. USI Film Prods.,
511 U.S. 244 (1994), and Lindh v. Murphy, 521 U.S. 320
(1997). We interpreted these cases as establishing the
following three principles:

       1. There is a strong presumption against applying a
       statute in a manner that would attach "new legal
       consequences" to events completed before the statute's
       enactment, i.e., a manner that would "impair rights a
       party possessed when he acted, increase a party's
       liability for past conduct, or impose new duties."
       Landgraf, 511 U.S. at 280, 114 S.Ct. 1483.

       2. If Congress has focused on the issue, "has
       determined that the benefits of retroactivity outweigh
       the potential for disruption or unfairness," and has
       provided unambiguous evidence of its conclusion by
       directing that retroactive effect be given, then, and only
       then, will the presumption be overridden.

       3. Consistent with these principles, normal rules of
       statutory construction "may apply to remove . . . the
       possibility of retroactivity." Nothing short of an
       unambiguous directive, however, will justify giving a
       statute a retroactive effect. Thus, when normal rules of
       statutory construction indicate that a statute is
       intended to be applied in a manner involving no
       retroactive effect, a Court need inquire no further. On
       the other hand, if such construction suggests that a
       retroactive effect may have been intended, the
       traditional presumption nevertheless bars retroactive
       application unless an unambiguous congressional
       directive is found.

In re Minarik, 166 F.3d at 597-98.

                               5
Informed by these principles, we turn to Roberson's
argument that applying AEDPA's gatekeeping provisions to
his second S 2255 motion is impermissibly retroactive. We
begin our analysis by noting that the gatekeeping
provisions at issue here, as in Minarik, are part of AEDPA's
chapter 153 amendments. See AEDPA, SS 105-06, Pub.L.
No. 104-132, 110 Stat. 1220-21 (1996). Congress did not
provide unambiguous evidence of its intent to apply
AEDPA's chapter 153 amendments to cases in which a
prisoner filed his first S 2255 or S 2254 motion prior to
AEDPA's effective date. See Lindh, 521 U.S. at 327-29;
Minarik, 166 F.3d at 599; United States v. Ortiz, 136 F.3d
161, 165 (D.C. Cir. 1998); In re Hanserd, 123 F.3d 922,
924 (6th Cir. 1997); Burris v. Parke, 95 F.3d 465, 468 (7th
Cir. 1996) (en banc).

Furthermore, we held in Minarik that normal rules of
statutory construction do not remove the possibility of
retroactivity where a prisoner's first and second S 2254
petitions straddle AEDPA's effective date. See 166 F.3d at
598. We stated:

       Lindh held that AEDPA's text, read in light of normal
       principles of statutory interpretation, evidences a
       congressional intent that AEDPA's chapter 153
       amendments should generally be applied to petitions,
       like Minarik's, filed after April 24, 1996, the effective
       date of the Act, but not to petitions, like Lindh's,filed
       before. This does not resolve the issue before us,
       however. The finding of congressional intent in Lindh
       was based on the drawing of a negative inference from
       Congress's express mandate that AEDPA's new rules
       regarding certain death penalty cases apply to pending
       cases. Because Congress had expressly provided for
       application to pending capital cases, but not to
       pending non-capital cases, it was a fair inference that
       Congress did not intend retrospective application to the
       latter. Landgraf and Lindh make clear, however, that
       while such an inference is sufficient to eliminate the
       possibility of a retroactivity problem, it is not the kind
       of unambiguous statement that will justify overriding
       the judicial presumption against retroactivity in a case
       where a retroactivity problem exists.

                               6
Id. Because AEDPA's chapter 153 amendments include the
gatekeeping provisions for S 2255 motions, we hold that our
analysis in Minarik applies with equal force here.

Having determined that Congress did not provide
unambiguous evidence for the retroactive application of the
gatekeeping provisions and that normal rules of statutory
construction do not remove the possibility of the
gatekeeping provisions' retroactive application,"we now
turn to a case-specific analysis of whether applying
AEDPA's [gatekeeping provisions to Roberson's second
S 2255 motion] would have a genuine retroactive effect by
`attach[ing] new legal consequences to events completed
before [AEDPA's] enactment.' " Minarik, 166 F.3d at 599
(quoting Landgraf, 511 U.S. at 270). Minarik, which is
binding on us, is quite clear that the relevant question is
whether the application of the gatekeeping provisions would
produce a genuine retroactive effect in the particular case
at hand, not whether it would generally do so in a broader
class of cases into which the case at hand falls. See 166
F.3d at 599 (emphasis added) ("If applying AEDPA's habeas
corpus amendments would produce a genuine retroactive
effect in Minarik's case, then Landgraf's default rule
prohibits their application.' ")

Roberson argues that AEDPA's gatekeeping provisions
attach "new legal consequences" to his firstS 2255 motion.
Appellant's Br. at 9-11. Specifically, he claims that under
pre-AEDPA law, he could have established cause and
prejudice and that, consequently, a federal court would
have entertained his second S 2255 motion. He concedes
that he cannot satisfy AEDPA's new substantive standards,2
_________________________________________________________________

2. Roberson does not argue that the gatekeeping provisions' procedural
requirement -- viz., that an applicant seeking to file a second or
successive S 2255 motion in the district courtfirst obtain authorization
from the court of appeals -- is impermissibly retroactive. This argument
is foreclosed by our decision in Minarik, 166 F.3d at 599 ("Section
2244(b)(3)(A) . . . is a change in procedural law which falls within the
firmly established `procedural change' category described in Landgraf
that may be retrospectively applied.") (citing Landgraf, 511 U.S. at 275
("Because rules of procedure regulate secondary rather than primary
conduct, the fact that a new procedural rule was instituted after the
conduct giving rise to the suit does not make application of the rule at
trial retroactive.")).

                               7
see Appellant's Br. at 10-11, and he argues, therefore, that
because AEDPA's gatekeeping provisions impair a right he
possessed when he filed his first S 2255 motion, applying
them in his case is impermissibly retroactive.3

As previously noted, Roberson raises two grounds for
relief in his second S 2255 motion. First, he claims that the
District Court erred by applying S 2D1.1(c)'s enhanced
sentencing provisions for crack because the government
failed to prove by a preponderance of the evidence that the
controlled substance he pleaded guilty to distributing and
conspiring to distribute was crack. See App. at 9. He
contends that he pleaded guilty to distributing and
conspiring to distribute a form of cocaine base that is not
subject to S 2D1.1(c)'s enhanced sentencing provisions for
crack. See id. Second, he claims that his attorney at
sentencing and on direct appeal was constitutionally
ineffective for failing to argue, based on S 2D1.1(c)'s
distinction between crack and other forms of cocaine base,
that Roberson should not have been sentenced under the
enhanced sentencing provisions for crack. See id . We
conclude that Roberson had cause under pre-AEDPA law
for not including these two grounds in his first S 2255
motion. We also conclude, however, that he suffered no
_________________________________________________________________

3. Implicit in his concession is an admission that he also cannot
establish that a fundamental miscarriage of justice would result from a
failure to entertain his claims. One of S 2255's new substantive
standards requires movants to proffer "newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense." 28
U.S.C.A. S 2255. Thus, Roberson acknowledges that the claims in his
second S 2255 motion -- i.e., that the District Court erred by applying
U.S.S.G. S 2D1.1(c)'s enhanced sentencing provisions for crack and that
his counsel was constitutionally ineffective for failing to raise this
error
-- do not constitute newly discovered evidence that is sufficient to
establish by clear and convincing evidence that he is not guilty of the
underlying offenses. In order to prove that his case implicates a
fundamental miscarriage of justice, Roberson needs to establish that he
was "actually innocent." See Bousley v. United States, 118 S. Ct. 1604,
1611 (1998); Murray v. Carrier, 477 U.S. 478, 496 (1986). Because he
concedes that he cannot meet S 2255's innocence standard, he likewise
cannot satisfy the "actual innocence" standard of pre-AEDPA law.

                               8
prejudice as a result of these alleged errors and thus that
a district court would have denied his second S 2255
motion under pre-AEDPA law. We therefore hold that
AEDPA's gatekeeping provisions do not have an
impermissible retroactive effect upon his second S 2255
motion.

III.

We find that Roberson had "cause" for not raising these
two grounds in his first S 2255 motion, which he filed in
July 1991, because the legal distinction between"crack"
and "cocaine base" for sentencing purposes did not exist
until November 1, 1993, and because Roberson had no
duty to anticipate changes in the law. See Sistrunk v.
Vaughn, 96 F.3d 666, 670-71 (3d Cir. 1996); Government of
Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In
1993, the Sentencing Commission amended S 2D1.1(c) to
include the following definition of cocaine base:

       "Cocaine base," for the purposes of this guideline,
       means "crack." "Crack" is the street name for a form of
       cocaine base, usually prepared by processing cocaine
       hydrochloride and sodium bicarbonate, and usually
       appearing in a lumpy, rocklike form.

U.S.S.G. S 2D1.1 (Note D to Drug Quantity Table). Prior to
1993, the Sentencing Guidelines had not defined the term
"cocaine base" in S 2D1.1(c), and no court of appeals had
held that this term referred only to "crack" and not to other
forms of cocaine base. See United States v. Rodriguez, 980
F.2d 1375, 1378 (11th Cir. 1992); United States v. Jones,
979 F.2d 317, 320 (3d Cir. 1992); United States v. Wheeler,
972 F.2d 927, 930 (8th Cir. 1992); United States v.
Jackson, 968 F.2d 158, 162 (2d Cir. 1992); United States v.
Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992) (per curiam);
United States v. Shaw, 936 F.2d 412, 416 (9th Cir. 1991);4
_________________________________________________________________

4. We are aware of the Sentencing Commission's statement that the
Ninth Circuit held in United States v. Shaw, 936 F.2d 412 (9th Cir.
1991), that "cocaine base means crack." See U.S.S.G., App. C, Amend.
487 (1997). We disagree with the Sentencing Commission's
interpretation of Shaw and note that in determining whether a claim is

                               9
United   States   v.   Turner, 928 F.2d 956, 960 (10th Cir. 1991);
United   States   v.   Levy, 904 F.2d 1026, 1033 (6th Cir. 1990);
United   States   v.   Metcalf, 898 F.2d 43, 46-47 (5th Cir. 1990);
United   States   v.   Brown, 859 F.2d 974, 976 (D.C. Cir. 1988).

The Supreme Court has held that there may be cause for
omitting a claim when it " `is so novel that its legal basis is
not reasonably available to counsel.' " Bousley v. United
States, 118 S. Ct. 1604, 1611 (1998) (quoting Reed v. Ross,
468 U.S. 1, 16 (1984)). In Bousley, the petitioner pleaded
guilty in 1990 to "using" a firearm in violation of 18 U.S.C.
S 924(c) and later sought a writ of habeas corpus under 28
U.S.C. S 2241, which the District Court treated as a motion
pursuant to 28 U.S.C. S 2255. Bousley, 118 S. Ct. at 1607.
The District Court dismissed the petitioner's S 2255 motion,
and he appealed to the Court of Appeals for the Eighth
Circuit. See id. While Bousley's appeal was pending, the
Supreme Court decided Bailey v. United States, 516 U.S.
137 (1995), in which it held that a conviction for "use"
under S 924(c)(1) required the government to show not only
"mere possession," but "active employment of the firearm"
as well. Bailey, 516 U.S. at 144. The Eighth Circuit
subsequently affirmed the District Court's decision,
rejecting Bousley's argument that Bailey should be applied
retroactively. See Bousley, 118 S. Ct. at 1608.
_________________________________________________________________

so novel that it constitutes cause to excuse an abuse of the writ, we are
not bound by the Sentencing Commission's reading of a circuit court's
opinion. In Shaw, the defendant argued that he could not be sentenced
under the guideline provision applicable to offenses involving "cocaine
base." The defendant maintained "the legal definition of `cocaine base' is
a cocaine compound containing a hydroxylion (OH-) such that it is a
`base,' as that term is used in chemistry." 936 F.2d at 414. "Because the
government's expert did not say anything about the presence of a
hydroxylion," the defendants argued that they could not be sentenced for
cocaine base. Id. Rejecting this argument, the court wrote: "[W]e
conclude that . . . the Commission must have intended the term `cocaine
base' to include `crack,' or `rock cocaine,' " and that the Commission did
not intend "the term `cocaine base' to be defined by the presence of a
hydroxylion or by its testing basic rather acidic." Id. at 416 (emphasis
added). Plainly, a holding that the term "cocaine base" includes crack is
not the same as a holding that "cocaine base means crack." U.S.S.G.,
App. C, Amend. 487 (1997).

                                     10
On appeal to the Supreme Court, Bousley argued, in an
attempt to establish cause, that the legal basis for his claim
was not "reasonably available to counsel at the time his
plea was entered." Bousley, 118 S. Ct. at 1611 (internal
quotation marks and citation omitted). The Court rejected
this argument, noting that it "was most surely not a novel
one" and that "at the time of petitioner's plea, the Federal
Reporters were replete with cases involving challenges to
the notion that `use' is synonymous with mere
`possession.' " Id. (citations omitted). Here, however, the
argument that cocaine base, as used in S 2D1.1, included
only crack and excluded all other forms of cocaine base was
novel at the time of Roberson's first S 2255 motion. The
Federal Reporters, as we already noted, did not contain a
single case reaching this conclusion. Accordingly, we hold
that Roberson had cause for failing to raise in hisfirst
S 2255 motion the two grounds that he advanced in his
second S 2255 motion.5

Although we find that Roberson could have established
cause for the two claims he raised in his second S 2255
_________________________________________________________________

5. Roberson contends that he has established "cause" under McCleskey
because he proceeded pro se in his first S 2255 motion. Appellant's Br.
at 11 n.4. We disagree. In McCleskey, the Court held that the application
of the cause and prejudice standard does not "imply that there is a
constitutional right to counsel in federal habeas corpus." 499 U.S. at
495 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)).
Accordingly, the Court, in setting forth a single standard for "cause,"
made no distinction between pro se defendants and those who are
represented by counsel. See Cornman v. Armontrout, 959 F.2d 727, 729
(8th Cir. 1992) (stating that the requirement of cause in the abuse of the
writ context "is not lessened by the fact that the petitioner may . . .
have
filed the initial habeas petition pro se"); Saahir v. Collins, 956 F.2d
115,
118 (5th Cir. 1992) ("Because a habeas petitioner is not constitutionally
entitled to any legal representation in waging a collateral attack, the
McCleskey `knew or reasonably should have known' standard for cause
applies irrespective of whether he was represented by counsel when he
filed any previous petitions."); Rodriguez v. Maynard, 948 F.2d 684, 687
(10th Cir. 1991) ("We hold that, in abuse of the writ cases, the cause and
prejudice standard applies to pro se petitioners just as it applies to
petitioners represented by counsel."). We hold, therefore, that the fact
that Roberson filed his first S 2255 petition pro se does not constitute
cause in the abuse of the writ context.

                               11
motion, we hold that he could not have demonstrated
prejudice for either one. We will address each claim in turn.

A.

Roberson claims that the government did not prove by a
preponderance of the evidence that the controlled
substance in question was "crack." Appellant's Br. at 10.
Relying on our decision in United States v. James, 78 F.3d
851 (3d Cir. 1996), Roberson contends that he did not
plead guilty to possession or distribution of crack.
Appellant's Reply Br. at 3. Rather, he asserts that he
pleaded guilty to possession or distribution of cocaine base.
Id. In further support of his argument, Roberson notes that
"there was no laboratory analysis of the substances seized."
Id. Roberson argues, based on this record, that the District
Court erred in applying S 2D1.1(c)'s enhanced sentencing
provision for crack and that this error resulted in prejudice.
We reject Roberson's argument for three reasons.

First, he waived the argument that he pleaded guilty to
distributing a form of cocaine base other than crack. "A
waiver of rights must be knowing and voluntary." James,
78 F.3d at 856 (citing United States v. Newman, 912 F.2d
1119, 1123 (9th Cir. 1990) (voluntary plea requires real
notice of the true nature of the charge)). In James, the
defendant pleaded guilty to selling 57.4 grams of cocaine
base. See id. at 853. The District Court, pursuant to
U.S.S.G. S 2D1.1(c), sentenced James under the enhanced
sentencing provisions for crack. James argued that the
District Court erred in applying S 2D1.1(c)'s enhancement
for crack because he did not plead guilty to possession or
distribution of crack. See id. at 856.

We found that the record, on the whole, supported his
argument. There, the indictment charged James "with
distribution and possession of a `substance containing a
detectable amount of cocaine base.' " Id . at 855.
Additionally, the parties stipulated in the plea agreement
that "for purposes of determining . . . James' offense level
under the Sentencing Guidelines, . . . the relevant quantity
of cocaine base is 57.4 grams." Id. at 855-56. Finally,
during the plea colloquy, James admitted that he

                                12
distributed "cocaine base," but made no such admission
with respect to "crack." Id. at 856. While we noted that the
prosecutor referred to the controlled substance in question
three times as "crack cocaine,"6 we held that, "without
more, the causal reference to crack by the Government in
the colloquy with the court over `the relevant quantity of
cocaine base in determining Mr. James's offense level' did
not amount to a "knowing and voluntary admission that
the cocaine base constituted crack." Id. at 856.

Here, the superseding information charged Roberson with
distributing and conspiring to distribute "a substance
containing cocaine base, known as `crack' cocaine." App. at
178-79. Moreover, Roberson pleaded guilty in his plea
agreement to "distribution of crack cocaine" and
"conspiracy to distribute crack cocaine." App. at 169. Thus,
in contrast to James, Roberson's plea to distributing and
conspiring to distribute "crack" was knowing and voluntary.

Second, the government proved by a preponderance of
the evidence that the substance in question was crack. We
review for clear error a district court's factual determination
that the substance a defendant distributed was crack. See
United States v. Dent, 149 F.3d 180, 189 (3d Cir. 1998);
United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997).
" `Factual findings are clearly erroneous if the findings are
unsupported by substantial evidence, lack adequate
evidentiary support in the record, are against the clear
weight of the evidence or where the district court has
misapprehended the weight of the evidence.' " Roman, 121
_________________________________________________________________

6. During the plea colloquy, the prosecutor stated:

        The parties agree that the relevant quantity of cocaine base in
        determining Mr. James's offense level is 57.4 grams. That's the
total
        net weight of the crack cocaine that was purchased in each of the
        three transactions that comprise Counts One, Two and Three.

        . . .

        Mr. James exchanged a plastic baggy that contained some
        suspected crack cocaine. That was sent to a lab, analyzed, and was
        determined to be -- I believe the net weight was 22.0 grams of
        cocaine base or crack cocaine.

78 F.3d at 856 (emphasis in original).

                                13
F.3d at 140 (quoting Davin v. United States Dep't of Justice,
60 F.3d 1043, 1049 (3d Cir. 1995) (internal quotations
omitted)).

Here, unlike James, we note that the government, the
witnesses, and even Roberson's trial attorney consistently
referred to the controlled substance in question as crack
cocaine. See, e.g., App. at 47 (testimony of Troy
Smallwood); App. at 68-69 (testimony of Ryan Edward
Palmer); App. at 74, 122-23 (testimony of Senia Patricia
Lewis); App. at 88 (testimony of Jamie Herrell); App. at 82,
122 (defense counsel); App. at 142 (prosecutor's comments
to the District Court Judge). Because S 2D1.1 defines
"crack" as "the street name for a form of cocaine base," see
U.S.S.G. S 2D1.1(c), Note (D) to Drug Quantity Table, we
find the witnesses' testimony especially compelling. See
United States v. Hall, 109 F.3d 1227, 1236 (7th Cir. 1997).

Moreover, we noted in Roman that "where a written plea
agreement is entered[,] questions of notice and proof at
sentencing could be greatly minimized by simply including
language in the plea agreement by which a defendant
acknowledges the identity of the drugs involved." 121 F.3d
at 141 n.4. Here, as we stated above, Roberson pleaded
guilty to distributing "crack." Therefore, any question of
proof we have concerning whether Roberson distributed
crack is "greatly minimized."

Roberson also argues that the government failed to meet
its burden of proof, at least in part, because it did not
perform a laboratory analysis of the substance at issue.
Appellant's Reply Br. at 3. We find this argument
unpersuasive. It is not necessary for the government to
perform a chemical analysis to prove that the substance at
issue is crack, as opposed to another form of cocaine base.
See Dent, 149 F.3d at 190; Roman, 121 F.3d at 141.

Third, Roberson cannot establish prejudice because the
1993 amendment to S 2D1.1(c) ("Amendment 487") effected
a substantive change in the law, and substantive
amendments -- in contrast to clarifying amendments-- are
not given retroactive effect. See U.S.S.G.S 1B1.11(b)(2)
(1998); United States v. Marmolejos, 140 F.3d 488, 490 (3d
Cir. 1998). As we stated in Marmolejos, "[t]here is no bright-

                                14
line test for determining whether an amendment to the
Guidelines `clarifies' the existing law; `these categories [are]
unclear, and as is usually the case, there are factors
supporting either side.' " 140 F.3d at 491 (quoting United
States v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993)). Among
other factors, we have considered: (1) "whether, as a matter
of construction, the guideline and commentary in effect at
that time is really consistent with the amended manual,"
United States v. Bertoli, 40 F.3d 1384, 1405 (3d Cir. 1994);
and (2) whether the amendment resolves an ambiguity in
the guideline or commentary. See Marmolejos, 140 F.3d at
491-93.

Amendment 487 overruled prior constructions of
S 2D1.1(c). Compare United States v. Jones, 979 F.2d 317,
320 (3d Cir. 1992) (holding that crack is a form of cocaine
base), with U.S.S.G. App. C, Amend. 487 (1997) ("Under
this amendment, forms of cocaine base other than crack
. . . will be treated as cocaine."). Because Amendment 487
overruled our prior construction of the guideline, we are
inclined to hold that it effected a substantive change. See
Bertoli, 40 F.3d at 1405.

This holding is supported by our conclusion that
Amendment 487 did not resolve a pre-existing ambiguity in
S 2D1.1(c)'s definition of "cocaine base." Prior to
Amendment 487's effective date, no court of appeals held
that cocaine base meant only crack and excluded all other
forms of cocaine base. Supra, at 9-10. Unlike our decision
in Marmolejos, where we concluded that the Sentencing
Commission's amendment resolved an ambiguous
application note, see Marmolejos, 140 F.3d at 491,
S 2D1.1(c) was not ambiguous prior to Amendment 487.

In Marmolejos, we examined Application Note 12 to
S 2D1.1, which provided instructions for determining the
quantity of controlled substances when the offense involved
a negotiation to traffic such substances. 140 F.3d at 490.
We noted that "[t]he prior text of the application note
provided no guidance as to what amount of drugs a court
should consider in sentencing a defendant convicted of
participating in a completed transaction." Id . at 491. We
held, therefore, that "the terms of the previous application
note were facially ambiguous; the note spoke only to

                                15
uncompleted deals." Id. Here, the prior text of S 2D1.1(c)
provided the courts with guidance as to what type of
controlled substance should be subject to an enhanced
sentence -- i.e., cocaine base. We discern no facial
ambiguity in the pre-1993 version of S 2D1.1(c) such that
one could reasonably read the term cocaine base to mean
only crack. Accordingly, we view Amendment 487 as a
substantive amendment, which narrowed the category of
controlled substances subject to enhanced penalties from
all forms of cocaine base to a single type, crack.

As a final point, we note that our result is supported by
the four other courts of appeals that have issued a
published opinion addressing the retroactivity of
Amendment 487. See United States v. Booker, 70 F.3d 488,
489-90 (7th Cir. 1995); United States v. Kissick, 69 F.3d
1048, 1053 (10th Cir. 1995); United States v. Samuels, 59
F.3d 526, 529 (5th Cir. 1995); United States v. Camacho, 40
F.3d 349, 354 (11th Cir. 1994).

B.

We now turn to the second claim Roberson raised on
appeal -- viz., that his attorney at sentencing and on direct
appeal was constitutionally ineffective for failing to argue,
based on the legal distinction between crack and other
forms of cocaine base, that Roberson should not have been
sentenced under S 2D1.1's enhanced sentencing provisions.

To succeed on an ineffective assistance of counsel claim,
Roberson must show that his attorney's performance fell
outside "the wide range of professionally competent
assistance," Strickland v. Washington, 466 U.S. 668, 689
(1984), and that his attorney's deficient performance
resulted in prejudice, which the Supreme Court has defined
as "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. In reviewing counsel's
performance, we "must judge the reasonableness of
counsel's challenged conduct on the facts of the particular
case, viewed as of the time of counsel's conduct." Id. at
690. In this case, Roberson essentially contends that his
attorney's performance was deficient because he failed to

                                16
argue, based on the legal distinction between crack and
other forms of cocaine base, that Roberson should not have
been sentenced under S 2D1.1(c)'s enhanced sentencing
provisions for cocaine base.7 App. at 9. We are
unpersuaded.

The District Court sentenced Roberson in July 1989,
App. at 185, and we denied his direct appeal in December
1989. As we have already observed, the Sentencing
Commission did not create a legal distinction between crack
and other forms of cocaine base until almost four years
later, and prior to that time, no court of appeals had held
that cocaine base, as defined in S 2D1.1(c), meant only
crack and no other form of cocaine base. Supra , at 9-10.
Because "there is no general duty on the part of defense
counsel to anticipate changes in the law," Sistrunk, 96 F.3d
at 670-71 (quoting Government of the Virgin Islands v.
Forte, 865 F.2d 59, 62 (3d Cir. 1989)), we hold that
counsel's failure to make an argument based on
S 2D1.1(c)'s distinction between crack and cocaine base
does not fall outside "the wide range of professionally
competent assistance." And since we conclude that
Roberson failed to show that his counsel's performance was
deficient, we need not reach the issue of whether he was
prejudiced by his attorney's representation. See Sistrunk,
96 F.3d at 673 n.8 (citing Strickland, 466 U.S. at 697
("[T]here is no reason for a court deciding an ineffective
assistance claim to . . . address both components of the
inquiry if the defendant makes an insufficient showing on
one.").

IV.

Accordingly, we conclude that a district court would have
precluded Roberson from filing his second S 2255 motion
under pre-AEDPA law. Therefore, we hold that applying
AEDPA's gatekeeping provisions to his second S 2255
motion cannot work an impermissible retroactive effect.
_________________________________________________________________

7. We note that when Roberson filed his firstS 2255 motion pro se
approximately two years after the District Court imposed its sentence,
see App. at 23-24, Roberson did not distinguish between crack and
cocaine base.

                                17
Because   Roberson's second S 2255 motion does not satisfy
AEDPA's   new substantive standards for filing a second
motion,   we deny Roberson's request for authorization to
proceed   with his second motion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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