           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2     Paulino v. United States                       No. 01-6424
        ELECTRONIC CITATION: 2003 FED App. 0435P (6th Cir.)
                    File Name: 03a0435p.06                                ASSISTANT UNITED STATES ATTORNEY, Lexington,
                                                                          Kentucky, for Appellee. ON BRIEF: Louis A. Chaiten,
                                                                          JONES, DAY, REAVIS & POGUE, Cleveland, Ohio, for
UNITED STATES COURT OF APPEALS                                            Appellant. Frances E. Catron, Jane E. Graham, ASSISTANT
                                                                          UNITED STATES ATTORNEY, Lexington, Kentucky, for
                  FOR THE SIXTH CIRCUIT                                   Appellee.
                    _________________
                                                                                               _________________
 JUAN LEONARDO PAULINO ,          X
          Petitioner-Appellant, -                                                                  OPINION
                                   -                                                           _________________
                                   -   No. 01-6424
            v.                     -                                        WALTER H. RICE, District Judge. In this case, Appellant
                                    >                                     asks us to reverse the dismissal of his successive motion to
                                   ,                                      vacate, set aside or correct sentence, filed pursuant to 28
 UNITED STATES OF AMERICA , -
         Respondent-Appellee. -                                           U.S.C. § 2255. The district court had jurisdiction under 28
                                                                          U.S.C. § 2255, as authorized by this Court. See 28 U.S.C.
                                  N                                       §§ 2244(b)(3)(A) & 2255. Our jurisdiction exists under 28
      Appeal from the United States District Court                        U.S.C. §§ 2253 & 2255. For the reasons which follow, the
    for the Eastern District of Kentucky at Lexington.                    district court’s order dismissing Appellant’s successive
  No. 89-00016—Karl S. Forester, Chief District Judge.                    motion will be affirmed.

                    Argued: August 8, 2003                                I. Background

            Decided and Filed: December 10, 2003                             In December, 1989, Appellant was convicted by a jury of
                                                                          conspiracy, tax evasion, and conducting a continuing criminal
   Before: BOGGS, Chief Judge; SILER, Circuit Judges;                     enterprise (“CCE”). The latter offense requires a showing
               RICE, District Judge.*                                     that the defendant committed a drug violation that was part of
                                                                          a continuing series of federal criminal drug violations. See 21
                      _________________                                   U.S.C. § 848(c). He was sentenced to 265 months of
                                                                          imprisonment for conspiracy and the CCE, and 60 months for
                            COUNSEL                                       tax evasion, the sentences to run concurrently. In 1991, this
                                                                          Court vacated Appellant’s conspiracy conviction, but
ARGUED: Pearson N. Bownas, JONES, DAY, REAVIS &                           otherwise affirmed. See United States v. Paulino, 935 F.2d
POGUE, Cleveland, Ohio, for Appellant. Frances E. Catron,                 739 (6th Cir.), cert. denied, 502 U.S. 914 (1991). In 1996,
                                                                          Appellant filed his first § 2255 motion, arguing for the first
                                                                          time that the trial court erred by failing to instruct the jury that
    *
                                                                          it must agree unanimously on the predicate offenses that made
     The Honorable Walter H. Rice, United States District Judge for the   up the “continuing series” of drug violations. The district
Southern District of Ohio, sitting by designation.

                                  1
No. 01-6424                     Paulino v. United States      3    4    Paulino v. United States                     No. 01-6424

court overruled his motion, adopting the magistrate judge’s        II. Analysis
recommendation that Appellant had procedurally defaulted on
the instruction issue, regardless of the merits of his argument,     In reviewing a district court’s denial of a petition filed
and had failed to establish cause and prejudice for the default.   under § 2255, a court of appeals reviews findings of fact for
(J.A. at 130-137, 151-152.) We affirmed in an order filed on       clear error and conclusions of law de novo. See Dunlap v.
April 30, 1999. See 1999 WL 282672.                                United States, 250 F.3d 1001, 1004 (6th Cir.), cert. denied,
                                                                   534 U.S. 1057 (2001).
   In Richardson v. United States, 526 U.S. 813, 824 (1999),
decided a month after we affirmed the denial of Appellant’s          Permission to file a successive § 2255 motion may be
first § 2255 motion, the United States Supreme Court               granted by a panel of a court of appeals if the movant makes
“determined that a jury must unanimously agree not only that       a prima facie case that it raises “a new rule . . . .” 28 U.S.C.
the defendant committed some ‘continuing series of                 §§ 2244(b)(2)(A) & 2255; Tyler v. Cain, 533 U.S. 656, 662
violations,’ but also about which specific ‘violations’ make       (2001). Before “a panel of the appropriate court of appeals,”
up that ‘continuing series.’” Murr v. United States, 200 F.3d      a movant need only make a prima facie case that he can
895, 905 (6th Cir. 2000). In Murr, we reviewed Richardson          satisfy the above-stated requirement.                28 U.S.C.
and held that the Supreme Court announced in that case a new       § 2244(b)(3)(C). The court’s decision to certify or not certify
rule of substantive statutory law which applied retroactively      a motion to file a successive motion is not appealable and
for purposes of collaterally attacking a judgment or sentence.     cannot be the subject of a petition for rehearing or a writ of
200 F.3d at 905-06. Following Murr, Appellant herein               certiorari. Id. §2244(b)(3)(E). Upon review of the merits of
moved this Court to authorize the district court to consider a     the basis for the successive motion, the district court is
successive § 2255 motion, see 28 U.S.C. § 2255 (“A second          required to dismiss the motion “unless the applicant shows
or successive motion must be certified as provided in section      that the claim satisfies the requirements of this section.” Id.
2244 by a panel of the appropriate court of appeals . . . .”),     § 2244(b)(4).
contending therein that Richardson announced a new rule of
constitutional law which should be applied retroactively with        The parties are now in agreement that the basis for our
regard to his case. A panel of this Court granted the motion       decision to certify Appellant’s successive motion for
in March of 2000, finding that he had made a prima facie           consideration by the district court was not, despite
showing that his proposed ground for relief presented a new        Appellant’s representations in his motion for certification,
rule of constitutional law that was previously unavailable.        based on “a new rule of constitutional law” at all.
(J.A. at 163.) Following that order, he filed the motion with      (Appellant’s Br. at 20-22; Appellee’s Br. at 15, 17 n.2.)
the district court that is now the subject of this appeal. In      Appellant acknowledges this point because he perceives
denying him the relief he sought, the district court adopted the   himself to be on the horns of a dilemma, owing in no small
report and recommendations of the magistrate judge, who had        part to the Supreme Court’s holding in Tyler, 533 U.S. at 662
concluded that any error that did exist was harmless. (J.A. at     (decided after this Court’s certification of Appellant’s
197, 219.) This appeal followed.                                   successive motion), that it and only it can say when a newly
                                                                   recognized rule of constitutional law is to apply retroactively
                                                                   for purposes of allowing a sentenced defendant to bring a
                                                                   successive collateral attack on his or her sentence.
                                                                   (Appellant’s Br. at 20-22.) Recognizing further that the
No. 01-6424                           Paulino v. United States            5    6      Paulino v. United States                             No. 01-6424

Richardson Court did not state that the statutory clarification                under § 2255 is not available at this juncture. 28 U.S.C.
it made in that case was to apply retroactively, such that,                    § 2244(b)(4) states: “A district court shall dismiss any claim
under Tyler, the rule announced in Richardson could not be                     presented in a second or successive application that the court
applied to his case retroactively, despite our statement in                    of appeals has authorized to be filed unless the applicant
Murr that it should, Appellant turns about face from the                       shows that the claim satisfies the requirements of this
argument he proffered when he moved this Court to certify                      section.” Because Appellant not only acknowledges, but
his successive motion, and argues that Richardson was not a                    outright emphasizes, that “the requirements” for his obtaining
constitutional case at all, but was, rather, a case about                      relief in a successive § 2255 motion, to wit: the existence of
substantive statutory interpretation.          (Id. at 20-21.)                 a new rule of constitutional law, are not met in this case
Supposedly, this argument advances his cause because, of                       (Appellant’s Br. at 20-22), the district court’s order
course, the general rule of statutory interpretation is that novel             dismissing his motion will be affirmed.
interpretations of substantive statutes always apply
retroactively, with the understanding that a statute means                       Appellant contends in his brief that it makes “no
what it says from the date of its enactment. See, e.g., Rivers                 difference” that “Richardson may not be best seen as
v. Roadway Express, 511 U.S. 298, 312-13 (1994); Murr, 200                     announcing a new rule of constitutional law” (id. at 22), and
F.3d at 905-06. Thus, Appellant argues, Murr remains good                      his counsel reiterated the contention on several occasions at
law after all, insofar as it held that Richardson is to apply                  oral argument. According to Appellant, the requirement that
retroactively, and that, under Richardson, the district court’s                “a panel of the appropriate court of appeals” certify a
instructions were erroneous as a matter of substantive, not                    successive motion before it can be entertained by the district
constitutional, law.1                                                          court is a procedural rule that serves a gate-keeping function,
                                                                               nothing more. Appellant argues that the rule does not have
  In light of Richardson, Appellant is correct that the district               jurisdictional implications, and, furthermore, that once a court
court’s jury instructions were erroneous.2 Nevertheless, relief                of appeals has certified a successive motion, its decision
                                                                               should not be reconsidered. Simply put, Appellant is trying
                                                                               to have it both ways: arguing for purposes of having his
    1                                                                          successive motion certified that Richardson announced a new
      There would be a constitutional issue if there were an allegation that
the jury did not need to be unanimous in its verdict. However, as both the     rule of “constitutional law,” while arguing for purposes of
Governm ent and App ellant point out in their respective briefs, Richardson    getting around Tyler and having Richardson applied
was not about whether the jury had to be unanimous in finding a                retroactively that Richardson announced only a new rule of
continuing criminal enterprise, as no one argued that it did not have to be
unanimo us. The issue, rather, was whether, under 21 U.S.C. § 848(c), the
jury had to be unanimous with respect to the existence of a continuing
series of violations generally, or unanimous with respect to the existence     non-constitutional errors. See Tyler, 533 U.S. at 662 (pointing out that a
of each predicate violation more specifically. As the majority and             new rule of constitutional law is a prerequisite “to obtaining relief in a
dissenting opinions in Richardson amply show , the case was one of pure        second or successive” mo tion). O bviously, in crafting § 2255 as it is now
statutory interpretation. Acco rd Mu rr, 200 F.3d at 906 (“Richardson          written, Congress did no t find that new rules of statutory law justified
involves the substantive construction of a criminal statute.”).                successive motio ns, a fact which no d oub t leaves the merits of many first
    2
                                                                               § 2255 motions to timing and chance: a defend ant who files his first
      The Court need not, and does not, pass on the implications of the        motion prior to the recognition of a new rule of statutory law will not be
error because, for the reasons stated in this opinion, 28 U.S.C. § 2255        able to take advantage of such on a successive motion. In crafting § 2255
does not permit a defendant to base a second or successive motion on           as it did, C ongress was obviously interested in the principle of finality.
No. 01-6424                              Paulino v. United States               7    8      Paulino v. United States                             No. 01-6424

“statutory law.” The Court need not fully explore the merits                         district court was correct in dismissing his motion. See id. at
of Appellant’s “gate-keeping” proposition because it is beside                       661 n.3 (pointing out that even after the court of appeals has
the point. This Court need not (and does not) find                                   certified a successive motion on the basis that the movant has
Appellant’s earlier mischaracterization of Richardson                                made a prima facie showing that the statutory standard has
jurisdictional in nature, or reconsider its decision to certify his                  been satisfied, dismissal is appropriate in the district court if
successive § 2255 motion,3 for it is enough to note that once                        the merits of the successive motion do not ultimately satisfy
his motion came before the district court, his argument for                          that same statutory standard).
relief proved to be without merit. Regardless of Appellant’s
burden before this Court to obtain a certificate of                                    Appellant argues in the alternative that his motion should
authorization for the district court to entertain his successive                     be treated as a petition for a writ of habeas corpus, under 28
§ 2255 motion, the existence of a new rule of constitutional                         U.S.C. § 2241. (Appellant’s Br. at 25-29.) This argument
law is a “prerequisite[] to obtaining relief in a second or                          was only vaguely elaborated upon at oral argument, but it is
successive motion” before the district court. Tyler, 533 U.S.                        readily dismissed. 28 U.S.C. § 2255 contains a savings clause
at 662.4 Because he cannot satisfy that prerequisite, the                            which allows an incarcerated individual to apply for a writ of
                                                                                     habeas corpus under § 2241 if his remedy under § 2255
                                                                                     appears “inadequate or ineffective to test the legality of the
     3
      This pane l is satisfied tha t the issue is no t jurisdictional. It will       detention.” In theory, the fact that Richardson did not
frequently be the case that a successive motion, once certified by the               announce a new rule of constitutional law, such that
app ropriate appellate co urt, will fail on its merits before the district co urt.   Appellant is not entitled to relief under a successive § 2255
Just as a pre-trial, on-the-merits dismissal of a civil comp laint does not          motion, might have entitled Appellant to relief under § 2241.
imply a lack of subject matter jurisdiction in the first instance, the fact that     However, the circuit courts, including our own, have
a defendant moving for a successive § 2255 mo tion ultima tely fails to
prove the merits of his motion after having first satisfied his prima facie          interpreted § 2241 as permitting relief thereunder, in lieu of
burden before the co urt of appea ls does not imply a retroactive lack of            relief under § 2255, only in those instances where the
subje ct matter jurisdiction.                                                        individual can make a showing of actual innocence. See
     4
                                                                                     Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003).
       W e note also that our statem ent in Mu rr, that the rule announced in        Appellant has made no such showing in this case. Actual
Richardson applies retroactively, contin ues to b e sound. As noted , in             innocence means factual innocence. See Bousley v. United
Tyler, the Supreme Court held that only it can say when a new rule of                States, 523 U.S. 614, 623 (1998). Appellant makes no such
constitutional law is to app ly retroactively for p urpo ses of raising a
successive collateral attack on a sentence or jud gment. Tyler does not              argument that he is actually innocent of conducting a CCE,
abrogate Mu rr, however, because, as noted herein and acknowledged by                and the record, as explored by the magistrate judge and the
both parties, Richardson did not announce a new rule of constitutional               district court below, amply demonstrates that he would not be
law. Therefore, Mu rr’s interpre tation of Richardson is not inconsistent            able to do so.
with Tyler because Richardson, insofar as it announced a new rule of
statutory law, will never be of assistance to a de fendant seeking relief via
a successive § 225 5 mo tion, the success of which turns on a new rule of
constitutional law.
     Additiona lly, Mu rr discussed the retroactive application of a new rule        application of a new rule of constitutional law in the context of
of substantive law for purposes of co llaterally attacking a jury instruction        collaterally attacking a sentence or judgment via a second or successive
via a first § 2255 motion. This distinction is also crucial, namely bec ause         motion. Thus, because (1) Richardson only announced a new rule of
a first motion, unlike a successive motion, need not be based on a new               statutory law, and , in any eve nt, (2) Mu rr’s interpre tation of Richardson
rule of constitutional law. Tyler, of course, discussed the retroactive              was made in the context of a first § 225 5 mo tion, Mu rr remains good law.
No. 01-6424                     Paulino v. United States      9    10   Paulino v. United States                  No. 01-6424

   Appellant’s reliance on Bailey v. United States, 516 U.S.       § 2241 because he has not made a showing that he was
137 (1995), is misplaced. In Bailey, the Supreme Court held        actually innocent, a requirement that was not discharged by
that the term “uses,” as used in 18 U.S.C. § 924(c)(1), which      Bailey or its progeny.
enhances the sentence of any defendant who “uses” a weapon
in the commission of a federal crime of violence or drug             Accordingly, even if Appellant’s motion were construed as
trafficking, connotes “active employment.” 516 U.S. at 144.        a petition for habeas corpus, 28 U.S.C. § 2241, the order of
In other words, the Court held that the Government, in             the district court denying him relief would have to be
prosecuting a defendant under § 924(c)(1), must prove more         affirmed.
than that the defendant merely possessed a weapon. Id.
Because Bailey abrogated the overly broad definition of            III. Conclusion
“uses” as it had then been interpreted by several of the circuit
courts, see 516 U.S. at 142, this Court and other circuit courts     The order of the district court is AFFIRMED.
subsequently recognized that defendants who had previously
been sentenced pursuant to 18 U.S.C. § 924(c)(1), on the
basis of the erroneous definition, could attack their sentences
collaterally in light of Bailey, see In re Hanserd, 123 F.3d
922, 928 (6th Cir. 1997), and that they could even resort to 28
U.S.C. § 2241 to do so if relief under § 2255 was “inadequate
or ineffective.” See id. at 929-30.
   The shortcoming to Appellant’s reliance on Bailey is that
the new rule announced in Richardson does not have the same
effect as that announced in Bailey. In the latter, the rule
announced had the effect of rendering many previously
sentenced defendants “actually innocent” of the sentencing
factor on which their sentences had been based, to wit: it
demonstrated that they had not “used” a weapon in the
manner contemplated by Congress. The effect of Richardson
is entirely different. Richardson does not render defendants
who were convicted of conducting a CCE “not guilty,” or
“actually innocent,” merely because the trial court gave
instructions that did not comply with the rule announced
therein (as was the case, it appears, at Appellant’s trial); at
most, it requires a new trial. Had Appellant not defaulted on
this issue at trial and on direct appeal, he might have found
the relief he was seeking when he raised it in his first § 2255
motion. Be that as it may, he is not entitled to relief on his
successive motion for the reasons stated above, and, returning
to the immediate point, he is not entitled to relief under
