In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1733

Billy Ray Ashley,

Petitioner-Appellant,

v.

United States of America,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-4261-JPG--J. Phil Gilbert, Judge.

Submitted August 14, 2001--Decided September 12, 2001



  Before Bauer, Easterbrook, and Diane P.
Wood, Circuit Judges.

  Easterbrook, Circuit Judge. Shortly after
the Supreme Court decided Apprendi v. New
Jersey, 530 U.S. 466 (2000), Billy Ashley
filed with this court an application for
leave to commence a collateral attack.
That request was dismissed because it
appeared to be unnecessary: Ashley had
not filed a previous collateral attack,
so he did not need our permission. He
then turned to the district court, which
dismissed as untimely his motion under 28
U.S.C. sec.2255. Ashley’s conviction
became final before April 24, 1996, the
effective date of the Antiterrorism and
Effective Death Penalty Act, which
created a one-year limitations period for
collateral attacks. See United States v.
Ashley, 54 F.3d 311 (7th Cir. 1995). Thus
Ashley had a year from the aedpa’s
adoption to get a collateral attack under
way. See Lindh v. Murphy, 96 F.3d 856,
866 (7th Cir. 1996) (en banc), reversed
on other grounds, 521 U.S. 320 (1997).
Yet this collateral attack was not
commenced until August 28, 2000, when
Ashley sought our permission (that filing
date was carried to the district court).
The district court dismissed it as time-
barred and declined to issue a
certificate of appealability.

  Paragraph 6 of sec.2255 provides:
A 1-year period of limitation shall apply
to a motion under this section. The
limitation period shall run from the
latest of--

(1) the date on which the judgment of
conviction becomes final;

(2) the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution
or laws of the United States is removed,
if the movant was prevented from making a
motion by such governmental action;

(3) the date on which the right asserted
was initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review; or

(4) the date on which the facts
supporting the claim or claims presented
could have been discovered through the
exercise of due diligence.

The district court treated subparagraph
(1) as the applicable limit and rejected
Ashley’s argument that his application is
timely under subparagraph (3) because
filed within a year of Apprendi. No one
could doubt that Apprendi "newly" or
"initially" recognizes a constitutional
right. Apprendi caused this court to
overrule numerous cases, a sign that
something novel occurred. See United
States v. Nance, 236 F.3d 820 (7th Cir.
2000). Nonetheless, the district court
held, until the Supreme Court itself
declares that a new decision applies
retroactively on collateral review,
subparagraph (3) does not open a new
filing window for prisoners.

  In reaching this decision, the district
court drew on opinions holding that an
appellate court may authorize a second or
successive application under sec.2255
para.8(2) (federal prisoners) or
sec.2244(b)(2)(A) (state prisoners) only
if the Supreme Court itself has made the
retroactivity decision. See Tyler v.
Cain, 121 S. Ct. 2478 (2001). Declaring
para.8(2) functionally identical to
para.6(3), the district court held that
the same approach governs both.

  Yet the two provisions differ. (As do 28
U.S.C. sec.2244(b) (3)(D) and (b)(2)(A),
the comparable provisions for state
prisoners.) According to para.8(2), a
court of appeals may authorize a second
or successive application if it would
rest on:

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

Paragraph 6(3), by contrast, restarts the
time on:

the date on which the right asserted was
initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review[.]

An initial petition may be filed within a
year of a decision that is "made
retroactively applicable to cases on
collateral review[.]" A second petition,
by contrast, depends on "a new rule of
constitutional law, made retroactive to
cases on collateral review by the Supreme
Court" (emphasis added). Both statutes
make it clear that only the Supreme Court
may issue the new decision. But who
decides whether that new decision applies
retroactively? The first formulation
("made retroactive") leaves that question
open. The second formulation ("made
retroactive . . . by the Supreme Court")
answers it. To treat the first
formulation as identical to the second is
not faithful to the difference in
language. By omitting the restriction
contained in para.8(2), para.6(3) implies
that courts of appeals and district
courts may "make" the retroactivity
decision. Tyler concludes that the word
"made" in para.8(2) means "held." 121 S.
Ct. at 2483. District and appellate
courts, no less than the Supreme Court,
may issue opinions "holding" that a
decision applies retroactively to cases
on collateral review. The jurisdictional
(and precedential) scope of that holding
differs, but it is a holding nonetheless.

  At least three reasons justify the
difference between para.6(3) and
para.8(2). First, permitting a district
or appellate court to make the
retroactivity decision for an initial
petition may be essential to put the
question before the Supreme Court for
final resolution. How else would a
retroactivity question get before the
Supreme Court so that it could make the
decision that would in turn authorize
second or successive petitions? Second,
as the Supreme Court emphasized in Tyler,
121 S. Ct. at 2483, a court of appeals
has only 30 days to decide whether a
second or successive petition may be
filed. Shortness of time implies a
mechanical process; all the court need do
is look up an answer in the United States
Reports. No such time limit attends an
initial petition for collateral review,
so courts have time to apply the retroac
tivity criteria in Teague v. Lane, 489
U.S. 288 (1989), to novel decisions of
the Supreme Court. Third, the conditions
for filing successive petitions are
substantively as well as procedurally
more restrictive; having had one full
opportunity to wage a collateral attack,
the prisoner cannot demand another on the
same terms. Yet on the district court’s
view it is as hard to launch an initial
collateral attack as a subsequent one.

  There remains the requirement that some
court make the decision retroactive. The
one year to file under para.6(3) begins,
not on the date of the Supreme Court’s
decision newly recognizing a
constitutional right, but on the date
that decision is "made retroactive".
Otherwise para.6(3) is a mirage, for
retroactivity decisions often come more
than a year after opinions newly
recognizing constitutional rights.
Although this question has occasioned
disagreement among the courts of appeals,
see United States v. Lloyd, 188 F.3d 184,
188 n.10 (3d Cir. 1999) (collecting
cases), the cases holding that the time
starts from the Supreme Court’s decision,
rather than from the date that decision
is held to be retroactive, do not explain
how this leaves any work for para.6(3) to
do given the inevitable gap between the
main decision and the retroactivity
decision. One can imagine a serious
problem in the application of para.6(3)
if, for example, the ninth circuit should
declare a given decision retroactive on
January 15 of a given year, while the
seventh circuit declares it retroactive
on July 15 of that year. Does the year
run from January 15 or July 15? The
latter is more sensible: Having time run
from a retroactivity decision made by the
court with territorial jurisdiction
produces certainty in application. But
what of the first case? This circuit has
not decided whether Apprendi applies
retroactively on collateral review. Three
courts of appeals have held that it does
not. United States v. Moss, 252 F.3d 993
(8th Cir. 2001); United States v.
Sanders, 247 F.3d 139, 146-51 (4th Cir.
2001); Jones v. Smith, 231 F.3d 1227 (9th
Cir. 2000). None has held it retroactive
on collateral attack.

  Right after Apprendi appeared, no court
anywhere in the country had had a chance
to decide whether it was retroactive. Are
only prisoners whose convictions became
final in the year before Apprendi
eligible to seek such a declaration, with
everyone else queued up until a court in
the prisoner’s state has held that the
Supreme Court’s decision is retroactive?
Nothing in sec.2255 para.6(3) or
sec.2244(b)(2)(A) precludes an
application asking the district court
itself to hold that a new decision
applies retroactively under the
principles of Teague. The timeliness of
such a petition would depend on
resolution of the retroactivity question.
Just as a district court possesses
jurisdiction to determine its own
jurisdiction, it must possess the
authority to determine a precondition to
the timeliness of an action. This is
common in civil litigation. An
employment-discrimination suit is timely
only if a charge of discrimination was
filed with the eeoc. A district judge may
decide whether this was properly done,
and thus determine whether the suit was
timely. So too with retroactivity: A
district judge may determine whether a
novel decision of the Supreme Court
applies retroactively, and thus whether a
collateral attack is timely under
sec.2244(b)(2)(A) or sec.2255 para.6(3).

  Having reached this conclusion, we must
acknowledge that the district court’s
contrary view has some support. Indeed,
it has the support of Montenegro v.
United States, 248 F.3d 585, 593-94 (7th
Cir. 2001), on which the ink is barely
dry. We said in Montenegro almost exactly
what the district judge said here: that
para.6(3) and para.8(2) should be read
identically. What we did not do is say
why. On the very date that Montenegro was
issued, a panel of the fifth circuit
held, to the contrary, that para.6(3)
differs from para.8(2) in allowing
district and appellate courts to make the
retroactivity decision. United States v.
Lopez, 248 F.3d 427, 431-32 (5th Cir.
2001). So we have a conflict among the
circuits, which will disappear if we
overrule this portion of Montenegro.
Overruling such a recent case is an
unusual step, but a conflict created on a
single day (with each circuit in
ignorance of the other’s views) also is
unusual. Our decision not only failed to
grapple with the reasons given in Lopez,
on which we have elaborated above, but
also was issued before the Supreme Court
released Tyler, the definitive
interpretation of para.8(2). As we have
observed, strands of the analysis in
Tyler counsel against equating para.6(3)
and para.8(2). New considerations, such
as those in Lopez and Tyler, are the best
reasons to revisit a decision--especially
if in the process we can end a conflict
among the circuits. See, e.g., United
States v. Carlos-Colmenares, 253 F.3d 276
(7th Cir. 2001). We do so now and
overrule Part III of Montenegro./*

  The district court dismissed Ashley’s
petition as untimely without reaching a
conclusion about whether Apprendi applies
retroactively to collateral attacks. We
therefore issue a certificate of
appealability, for given Apprendi the
underlying constitutional claim must be
deemed "substantial" for purposes of 28
U.S.C. sec.2253(c)(2). See Slack v.
McDaniel, 529 U.S. 473, 483-85 (2000). We
remand so that the retroactivity decision
may be made, or at least considered.
Perhaps it will prove to be unnecessary.
The papers filed in this court do not
reveal whether Ashley, who was convicted
of conspiracy to distribute crack
cocaine, would be entitled to relief
under Apprendi even if that decision
should be applied retroactively. Unless
his sentence exceeds 20 years, or 30
years if he has a prior drug conviction,
there is no constitutional problem in the
first place. See Talbott v. Indiana, 226
F.3d 866 (7th Cir. 2000); United States
v. Brough, 243 F.3d 1078 (7th Cir. 2001).
Moreover, unless Ashley can justify his
failure to raise the question on direct
appeal by demonstrating cause and
prejudice, the retroactivity of Apprendi
does not matter. See United States v.
Smith, 241 F.3d 546, rehearing en banc
denied, 250 F.3d 1073 (7th Cir. 2001);
Garrott v. United States, 238 F.3d 903
(7th Cir. 2001). Accord, Sanders, 247
F.3d at 144-46. But the resolution of
these issues belongs to the district
court, for they depend on facts that are
not in the appellate record.

Vacated and Remanded

FOOTNOTE

/* This   opinion was circulated among the
court’s   active judges before release. See
Circuit   Rule 40(e). None of the judges
favored   a hearing en banc.
