In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-3080 & 00-3085

Richard Dale Talbott,

Applicant,

v.

State of Indiana,

Respondent.



Applications for Leave to Commence
Successive Collateral Attacks.



Submitted August 29, 2000--Decided September 7, 2000



  Before Bauer, Easterbrook, and Manion, Circuit Judges.

  Easterbrook, Circuit Judge. 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.

  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.
  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, No. 98-1501 (7th Cir. Aug. 17, 2000), slip
op. 11-13; Hernandez, 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.

  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.

  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.
  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.

  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.
