226 F.3d 866 (7th Cir. 2000)
Richard Dale Talbott, Applicant,v.State of Indiana, Respondent.
Nos. 00-3080 & 00-3085
In the  United States Court of Appeals  For the Seventh Circuit
Submitted August 29, 2000Decided September 7, 2000

Applications for Leave to Commence Successive Collateral Attacks.[Copyrighted Material Omitted]
Before Bauer, Easterbrook, and Manion, Circuit Judges.
Easterbrook, Circuit Judge.


1
Richard Talbott is  among the throngs of state and federal prisoners  who believe that Apprendi v. New Jersey, 120 S.  Ct. 2348 (2000), undermines their sentences.  Prisoners who already have filed and lost a  collateral attack need this court's approval to  launch another. Not one of the Apprendi-based  applications for permission to file has been  granted, however, and none is going to be granted  in the near future, for a fundamental reason: a  new decision of the Supreme Court justifies a  second or successive collateral attack only if it  establishes "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. sec.sec. 2244(b)(2)(A),  2255 para.8(2). We held in Bennett v. United  States, 119 F.3d 470 (7th Cir. 1997), that  retroactive application must be declared by the  Supreme Court itself. Although West v. Vaughn,  204 F.3d 53, 59-63 (3d Cir. 2000), disagrees with  Bennett and holds that a decision of the Supreme  Court is "retroactive to cases on collateral  review" if its logic implies retroactivity under  the approach of Teague v. Lane, 489 U.S. 288  (1989), we are not willing to depart from  Bennett. Congress said that only new rules "made  retroactive . . . by the Supreme Court" (emphasis  added) support successive petitions under  sec.2244(b)(2)(A) or sec.2255 para.8(2). Teague  establishes standards that guide the Supreme  Court in deciding whether a decision is  retroactive; sec.2244(b)(2)(A) or sec.2255  para.8(2) depart from pre-1996 law by specifying  that only the Supreme Court may make that  decision for purposes of successive collateral  attacks. In West the third circuit confused a  substantive question ("which decisions apply  retroactively?") with a procedural question  ("which court makes the retroactivity  decision?"). Cf. Williams v. Taylor, 120 S. Ct.  1495, 1523 (2000). Justices don't have to recite  the statutory language verbatim, but the choice  between prospective and retroactive application  belongs to the Supreme Court rather than to the  court of appeals.


2
Apprendi does not state that it applies  retroactively to other cases on collateral  review. No other decision of the Supreme Court  applies Apprendi retroactively to cases on  collateral review. So, given Bennett, no  application based on Apprendi can be authorized  under sec.2244(b)(2)(A) or sec.2255 para.8(2).  Accord, United States v. Sustache-Rivera, 2000  U.S. App. Lexis 18079 (1st Cir. July 25, 2000). If  the Supreme Court ultimately declares that  Apprendi applies retroactively on collateral  attack, we will authorize successive collateral  review of cases to which Apprendi applies. Until  then prisoners should hold their horses and stop  wasting everyone's time with futile applications.  (They are futile, not fatal under 28 U.S.C.  sec.2244(b)(1). As we held in Hernandez v. United  States, No. 00-3048 (7th Cir. Sept. 1, 2000), a  dismissal based on the fact that a case has not  been declared retroactive is without prejudice  for purposes of sec.2244(b)(1).) What is more,  prisoners now peppering district judges with  initial collateral attacks based on Apprendi  should reconsider: the itch to invoke the latest  decision of the Supreme Court can be costly,  because a loss will require this court's approval  to launch a later collateral attack if better  grounds for relief become available. Federal law  allows only one round of collateral review as of  right, so prisoners should choose their issues  wisely.


3
Many of the applications we have received have  serious problems in addition to Bennett.  Prisoners seem to think that Apprendi reopens  every sentencing issue decided by a federal court  in the last generation. It does not. All Apprendi  holds is that most circumstances increasing a  statutory maximum sentence must be treated as  elements of the offense--and, if the defendant  has demanded a jury trial, this means that they  must be established beyond a reasonable doubt to  the jury's satisfaction. Apprendi does not affect  application of the relevant-conduct rules under  the Sentencing Guidelines to sentences that fall  within a statutory cap. Thus, for example, when  the statutory maximum is life imprisonment,  Apprendi is beside the point. United States v.  Smith, 223 F.3d 554, 564-66 (7th Cir.2000); Hernandez, F.3d at, slip op. 4. When a drug  dealer is sentenced to less than 20 years'  imprisonment--the limit under 21 U.S.C.  sec.841(b)(1)(C) for even small-scale dealing in  Schedule I and II controlled substances--again  Apprendi is irrelevant even if we eventually  conclude, as United States v. Aguayo-Delgado,  2000 U.S. App. Lexis 17243 (8th Cir. July 18,  2000), has held, that United States v. Jackson,  207 F.3d 910, 920-21 (7th Cir. 2000), erred in  concluding that the drug type-and-quantity rules  of sec.841(b) are sentencing factors rather than  elements of the offense. To put this otherwise,  Apprendi does not affect the holding of Edwards  v. United States, 523 U.S. 511 (1998), that the judge alone determines drug types and quantities  when imposing sentences short of the statutory  maximum. And, more to the point of Talbott's  application, Apprendi does not affect the holding  of Custis v. United States, 511 U.S. 485 (1994),  that the validity of prior convictions is not  open to reexamination at sentencing for a new  offense, unless the defendant lacked counsel when  convicted of the prior offenses.


4
Richard Talbott is serving a lengthy federal  sentence for possessing ammunition despite  multiple prior felony convictions. 18 U.S.C.  sec.922(g)(1). See United States v. Talbott, 78  F.3d 1183 (7th Cir. 1996), decision after remand,  No. 96-2712 (Feb. 13, 1997) (unpublished order).  The length of the sentence, more than 22 years'  imprisonment, stems from his prior felony  convictions, which led to his classification as  an armed career criminal under 18 U.S.C.  sec.924(e). We held on Talbott's prior appeals  that the sec.924(e) recidivist enhancement is  proper. Talbott wants to revisit this subject,  arguing that, under Apprendi, one of his prior  felony convictions really should have been a  misdemeanor conviction. As he interprets the  state laws underlying his conviction for battery  (for which he was sentenced to eight years'  imprisonment), a sentence exceeding 180 days'  imprisonment depends on findings that, as Talbott  reads Apprendi, only a jury may make. Compare  I.C. 35-50-3-3 (misdemeanor battery) with I.C.  35-42-2-1 (felony battery). Suppose this is so.  Then there is a constitutional defect in the  state felony conviction--but Talbott does not  contend that he lacked assistance of counsel in  the Indiana prosecution, so under Custis any  shortcomings in the state prosecution are  immaterial. When enhancing the sentences of  repeat offenders, federal courts are entitled to  treat the prior convictions as what they are,  rather than as what defendants say they should  have been.


5
Perhaps Talbott believes that Custis is limited  to the imposition of sentence and direct appeal,  that its rule is avoidable by initiating a  collateral attack on the prior conviction (which  is what he appears to want) or by using sec.2255  to contest the federal sentence. But we held in  Ryan v. United States, 214 F.3d 877 (7th Cir.  2000), that Custis applies to collateral attacks  as well as to sentencing and direct appeals.  Courts of appeals are divided on this subject, as  the first paragraph in Ryan shows, and the  Solicitor General has asked the Supreme Court to  resolve the conflict. See United States v. Clark,  203 F.3d 358 (5th Cir. 2000), petition for  certiorari filed by the United States, No. 00-  122; United States v. Daniels, 195 F.3d 501 (9th  Cir. 1999), petition for certiorari filed by  Daniels and acquiesced in by the United States,  No. 99-9136. If the Supreme Court ultimately  disagrees with Ryan's understanding, and declares  its new position retroactive on collateral  attack, and holds Apprendi retroactive on  collateral attack, then Talbott may be entitled  to contest his sentencing as an armed career  criminal. But while Ryan stands as the law of  this circuit, Talbott cannot get to first base,  and his Apprendi issue is way over at third base.


6
Two final observations. First, Talbott is  mistaken in believing that he is entitled to wage  a collateral attack in federal court directly  against the Indiana sentence under 28 U.S.C.  sec.2254. He is not in custody under that  sentence. See Maleng v. Cook, 490 U.S. 488  (1989). His custody is federal, his ultimate  objection is to the length of his federal  sentence, and proceedings contesting that  sentence must be under sec.2255. Indiana may or  may not be willing to entertain a petition for a  writ in the nature of coram nobis, but Talbott  must seek that relief from the state courts.  Second, in any collateral attack the proper  respondent is the prisoner's custodian. "The  State of Indiana," which Talbott has named as  respondent, is not his custodian and is immune  from suit under the eleventh amendment. The  proper respondent in proceedings that do not  contest current custody is the state's attorney  general or the official most like a custodian.  See Rule 2(a) and (b) of the Rules Governing  Section 2254 Cases in the United States District  Courts. But we do not deny Talbott's application  for having attempted to use sec.2254 rather than  sec.2255, or for having named as respondent the  State of Indiana rather than the Attorney General  of Indiana. Then he would just file more papers.  We deny his application because, under Custis and  Ryan, the holding of Apprendi would do him no  good even if it had been declared retroactively  applicable on collateral attack.


7
We consolidate Talbott's two applications for  leave to commence successive collateral attacks.  Both documents, filed a day apart, make the same  contentions and are best understood as a single  application. That application is denied.

