                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2005

In Re: Olopade
Precedential or Non-Precedential: Precedential

Docket No. 05-1617




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"In Re: Olopade " (2005). 2005 Decisions. Paper 1283.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1283


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                                        PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT




                          No. 05-1617




           IN RE: ANTHONY BOLA OLOPADE,
                               Petitioner




             On Request for Permission to File
       a Second or Successive Habeas Corpus Petition
              Pursuant to 28 U.S.C. § 2244(b)


    Submitted on Motion Under Third Circuit LAR 34.1(a)
                      March 10, 2005

  Before: SLOVITER, NYGAARD, and FUENTES, Circuit
                      Judges

                    (Filed April 11, 2005)




Anthony Bola Olopade # 03406-070
Elkton FCI
P.O. Box 10
Lisbon, Ohio 44432

      Petitioner Pro Se
Christopher J. Christie
       United States Attorney
George S. Leone
       Chief, Appeals Division
United States Department of Justice
970 Broad Street, Room 700
Newark, New Jersey 07102-2535

       Attorneys for Respondent


                   OPINION OF THE COURT


SLOVITER, Circuit Judge.

       Anthony Olopade has filed an application in this court
pursuant to 28 U.S.C. § 2244 seeking permission to file a second
or successive motion under 28 U.S.C. § 2255 to vacate his
sentence. In ruling on that application, we must decide whether
the United States Supreme Court’s recent decision in United
States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005), applies to
persons seeking permission to file second or successive § 2255
motions. In keeping with the holdings of all the other courts that
have addressed related issues,1 we hold that Booker cannot be



       1
          See, e.g., Varela v. United States, 400 F.3d 864, 868 (11th
Cir. 2005) (per curiam) (“[W]e conclude that Booker . . . falls
squarely under the category of new rules of criminal procedure that
do not apply retroactively to § 2255 cases on collateral review.”);
Bey v. United States, 399 F.3d 1266, 1269 (10th Cir. 2005)
(“Booker may not be applied retroactively to second or successive
habeas petitions.”); Humphress v. United States, 398 F.3d 855, 860
(6th Cir. 2005) (“[W]e conclude that Booker’s rule does not apply
retroactively in collateral proceedings . . . .”); Green v. United
States, 397 F.3d 101, 103 (2d Cir. 2005) (per curiam) (“[N]either
Booker nor Blakely [v. Washington, 542 U.S. __, 124 S. Ct. 2531
(2004),] apply retroactively to Green’s collateral challenge.”);
McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005)

                                 2
relied on for that purpose.

                                 I.

       In 1998, a jury convicted Anthony Olopade in the United
States District Court for the District of New Jersey of conspiracy
to import heroin. The District Court thereafter imposed a
sentence of 240 months imprisonment. On direct appeal, this
court affirmed Olopade’s conviction and sentence. United States
v. Olopade, 205 F.3d 1330 (3d Cir. 1999) (table).

       In 2001, Olopade filed a motion for a writ of habeas
corpus under 28 U.S.C. § 2255 in the United States District
Court for the District of New Jersey. In that motion, Olopade
claimed, inter alia, that (1) his sentence violated the principle
established in Apprendi v. New Jersey, 530 U.S. 466 (2000),
because the quantity of narcotics was not proven to the jury
beyond a reasonable doubt; (2) that the indictment was defective
because it failed to allege a drug amount; and (3) that his trial
counsel was ineffective under the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984). On April 24, 2003, the
District Court entered a memorandum and order denying
Olopade’s motion; thereafter, this court denied Olopade’s
request for a certificate of appealability (“COA”).

       In 2004, relying on the Supreme Court’s decision in
Blakely v. Washington, 542 U.S. , 124 S. Ct. 2531 (2004),
Olopade sought this court’s authorization under 28 U.S.C. §
2244 to file a second or successive motion to vacate his sentence
under 28 U.S.C. § 2255. We denied Olopade’s request in an
unpublished order dated September 29, 2004.



(“Booker does not apply retroactively to criminal cases that became
final before its release on January 12, 2005.”); Gerrish v. United
States, 353 F. Supp. 2d 95, 96 (D. Me. 2005) (“Booker . . . [is] not
applicable to cases that were not on direct appeal when [it was]
decided.”); United States v. Johnson, 353 F. Supp. 2d 656, 658
(E.D. Va. 2005) (finding that Booker does “not apply retroactively
on collateral review”).

                                 3
       In the wake of the Supreme Court’s decisions in Booker,
Olopade has yet again sought this court’s authorization under §
2244 to file a second or successive habeas corpus motion. In his
pro se application titled “Request for Permission to File a
Second or Successive Petition in the District Court,” which was
filed with this court on February 28, 2005, Olopade argues that a
second or successive § 2255 motion is appropriate in his case
because such a motion would rely on new rules of law that were
previously unavailable, i.e., the holdings in Booker. In response,
the United States, by way of a letter motion dated March 10,
2005, has asked this court to dismiss Olopade’s most recent §
2244 request.2 We will do so.

                                 II.

        As we discussed in more detail in our opinion in United
States v. Ordaz, 398 F.3d 236, 238-39 (3d Cir. 2005), the
Supreme Court held this term in United States v. Booker that
“the Sixth Amendment as construed in Blakely does apply to the
[Federal] Sentencing Guidelines.” Booker, 543 U.S. at , 125
S. Ct. at 746 (Stevens, J.). Booker was decided by two opinions
of the Court. In the first opinion, authored by Justice Stevens for
a majority of five, the Court reaffirmed the holding in Apprendi
that “[a]ny fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the



       2
          On March 28, 2005, Olopade filed a reply to the United
States’ response. In this reply, Olopade attempts to backpedal
somewhat from his February 28, 2005 request. Specifically,
Olopade argues that he in fact does not need this court’s permission
to proceed with his Booker-based motion in the District Court
because the claim is not new, second, or successive but is rather the
continuation of his Apprendi claim, which was the subject of his
initial § 2255 motion. This argument is spurious. The District
Court denied Olopade’s first § 2255 motion on the merits; this
court declined to grant a COA. Thus, a motion filed by Olopade
for a writ of habeas corpus, whether premised on Booker or
otherwise, would be “second or successive” and therefore must be
authorized by this court. See 28 U.S.C. §§ 2244(b)(3), 2255.

                                 4
facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt,” and the Court extended that rule to the
Federal Sentencing Guidelines. Booker, 543 U.S. at         , 125 S.
Ct. at 756 (Stevens, J.). The second opinion, authored by Justice
Breyer for a majority of five, focused on the remedy. The Court
held that 18 U.S.C. § 3553(b)(1), the provision of the Sentencing
Reform Act of 1984 that made the Guidelines mandatory, was
incompatible with the Court’s constitutional ruling; thus, the
Court severed and excised § 3553(b)(1). Similarly, 18 U.S.C. §
3742(e), “the provision that set[] forth standards of review on
appeal, including de novo review of departures from the
applicable Guidelines range,” was also severed and excised
because it contained critical cross-references to the section that
made the Guidelines mandatory. Booker, 543 U.S. at , 125 S.
Ct. at 764 (Breyer, J.). The net result was to delete the
mandatory nature of the Guidelines and transform them to
advisory guidelines. In his most recent 28 U.S.C. § 2244
application, Olopade seeks to avail himself of the two Booker
holdings.

        The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), however, has “greatly restrict[ed] the power
of federal courts to award relief to . . . prisoners who file second
or successive habeas corpus applications.” Tyler v. Cain, 533
U.S. 656, 661 (2001). Specifically, AEDPA mandates that:

       A second or successive motion must be certified as
       provided in section 2244 by a panel of the
       appropriate court of appeals to contain–

              (1) [certain types of newly
              discovered evidence]; or

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



                                 5
28 U.S.C. § 2255. The certification process to which § 2255
refers is 28 U.S.C. § 2244(b)(3). Section 2244(b)(3) sets forth
the protocols and standards for requests for second or successive
habeas corpus applications in the court of appeals. Among other
requirements, a prisoner in Olopade’s procedural posture must
make “a prima facie showing that the application satisfies the
requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(C)
(emphasis added). Thus, § 2255, read in conjunction with §
2244(b)(3)(C), makes explicit that before we can grant Olopade
permission to file a second or successive motion in the District
Court, he must first make out a “prima facie showing” that his
request to file a second or successive motion relies on “a new
rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.”
See generally In re Turner, 267 F.3d 225, 227 (3d Cir. 2001).

       This issue is controlled by the decision in Tyler v. Cain,
533 U.S. 656 (2001). In Tyler, the Supreme Court held that “a
new rule is not made retroactive to cases on collateral review
unless the Supreme Court holds it to be retroactive.” 533 U.S. at
663 (internal quotations omitted).3 After Tyler, the relevant




       3
         In Tyler, the Court decided the fate of a state prisoner who
was seeking collateral relief under 28 U.S.C. § 2254 in the federal
courts. Thus, the Tyler Court addressed 28 U.S.C. § 2244(b)(2)
rather than the above-quoted language from 28 U.S.C. § 2255. The
relevant portion of § 2244(b)(2), however, is identical to the
section of § 2255 that is implicated in this case. Compare 28
U.S.C. § 2244(b)(2) (“A claim presented in a second or successive
habeas corpus application under section 2254 that was not
presented in a prior application shall be dismissed unless . . . the
applicant shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable . . . .”) (emphasis added),
with 28 U.S.C. § 2255 (“A second or successive motion must be
certified as provided in section 2244 by a panel of the appropriate
court of appeals to contain . . . a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme

                                 6
question is not whether the Supreme Court should make a case
applicable retroactively to cases on collateral review but whether
it has done so; likewise, it is insufficient that two or more of the
Court’s decisions read together merely suggest that a rule has
retroactive effect. Rather, the Supreme Court must have
explicitly held, or two or more of its decisions when read
together must absolutely dictate, that a particular rule is
retroactively applicable to cases on collateral review. In re
Turner, 267 F.3d at 229.

        It is clear that the Supreme Court has not expressly held
that Booker is applicable to cases on collateral review. In the
Booker decision itself, the Court did not mention collateral
review and only expressly applied its holdings to cases on direct
appeal. Booker, 125 S. Ct. at 769 (Breyer, J.) (“[W]e must apply
today’s holdings – both the Sixth Amendment holding and our
remedial interpretation of the Sentencing Act – to all cases on
direct review.”).4 And, in no subsequent case has the Supreme


Court, that was previously unavailable.”) (emphasis added). Due
to this identity of language, we have applied the Tyler holding to
federal prisoners seeking to file second or successive habeas
applications. See In re Turner, 267 F.3d 225, 227-28 (3d Cir.
2001).
       4
         After Booker issued on January 12, 2005, this court, of
course, has applied the Booker rules to cases that were then
pending on direct review. See, e.g., United States v. Ordaz, 398
F.3d 236, 239 (3d Cir. 2005); United States v. Davis, 397 F.3d 173,
183 (3d Cir. 2005). Olopade suggests that applying Booker to
cases that were pending on direct appeal as of January 12, 2005 but
not to those cases that were on collateral review as of that date
would deny prisoners seeking collateral review the equal protection
of the law. There is, however, an important distinction between
cases on direct appeal and those on collateral review. See Teague
v. Lane, 489 U.S. 288, 305-09 (1989) (O’Connor, J.). Simply put,
because prisoners seeking collateral review are not similarly
situated to prisoners whose cases are on direct appeal, it is
constitutionally permissible to apply different rules to the two
different categories of prisoners.

                                 7
Court addressed, let alone decided, whether Booker has
retroactive effect. See Bey, 399 F.3d at 1269 (“The Court
decided Booker on direct appeal and did not expressly declare,
nor has it since declared, that Booker should be applied
retroactively to cases on collateral review.”).

       Of course, “just because the [Supreme] Court has never
specifically considered the retroactivity of [a particular decision]
does not foreclose the possibility that the Court has ‘made’ [the
decision] retroactive on collateral review.” In re Turner, 267
F.3d at 229. Rather, as noted above, an amalgam of Supreme
Court holdings could have “made” Booker applicable
retroactively to cases on collateral review if the holdings, when
read together, “dictate” such a result. In re Turner, 267 F.3d at
229.

       Here, however, there is no combination of Supreme Court
decisions that “dictates” that Booker has retroactive force on
collateral review; indeed, the most analogous Supreme Court
case, Schriro v. Summerlin, 542 U.S. , 124 S. Ct. 2519 (2004),
strongly suggests precisely the opposite. In Schriro, the Court
held that Ring v. Arizona, 536 U.S. 584 (2002), in which the
Court applied Apprendi and found unconstitutional the
provisions of the State of Arizona’s death penalty sentencing
scheme that allowed a judge rather than a jury to find
aggravating factors, did not announce a “watershed rule[ ] of
criminal procedure” applicable retroactively to cases on
collateral review. Schriro, 542 U.S. at , 124 S. Ct. at 2524;
accord United States v. Swinton, 333 F.3d 481, 491 (3d Cir.
2003) (“[W]e hold that Apprendi does not apply retroactively to
cases on collateral review.”). Considering that Booker, like
Ring, is simply the application of the principles of Apprendi to a
particular subject, we conclude that the Schriro holding strongly
suggests that Booker is likewise not retroactively applicable to
cases on collateral review. See McReynolds, 397 F.3d at 480
(“Although the Supreme Court did not address the retroactivity
question in Booker, its decision in Schriro . . . is all but




                                 8
conclusive on the point.”).5

        In conclusion, we will deny Olopade’s request for leave
to file a second or successive habeas corpus motion because he
cannot make a “prima facie showing,” 28 U.S.C. §
2244(b)(3)(C), that Booker constitutes “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. § 2255.

        Of course, our holding today does not address the
underlying merits of Olopade’s claims under Booker.6 In such a
situation, it is appropriate to deny Olopade’s request to file a
second or successive motion without prejudice in the event that
the Supreme Court subsequently makes Booker retroactive to
cases on collateral review. See In re Turner, 267 F.3d at 231.7


       5
          In his March 28, 2005 reply, Olopade avers that Booker
is actually an extension of the rule of In re Winship, 397 U.S. 358
(1970), a decision which the Supreme Court held to apply
retroactively in Ivan V. v. City of N.Y., 407 U.S. 203, 204 (1972).
Pointing to the retroactive effect of Booker’s putative pedigree, he
argues that Booker is similarly retroactively applicable. This
argument, however, is more-or-less foreclosed by our decision in
In re Turner, in which we rejected the argument that because
Apprendi is arguably an extension of In re Winship, Apprendi
similarly applies retroactively to cases on collateral review. In re
Turner, 267 F.3d at 230-31. To paraphrase our conclusion in In re
Turner, the most Olopade can claim with his In re Winship
argument is that the Supreme Court should make Booker
retroactive to cases on collateral review, not that existing
precedents, such as Ivan V., dictate that result. In re Turner, 267
F.3d at 231.
       6
         Likewise, our dictum aside, we leave for another day the
question whether Booker applies retroactively to prisoners who
were in the initial § 2255 motion stage as of January 12, 2005.
       7
          In its letter motion dated March 10, 2005, the United
States urged that a without prejudice dismissal is the appropriate

                                 9
                              III.

       For these reasons, we will deny without prejudice
Olopade’s application for permission to file a second or
successive habeas corpus motion and will grant the United
States’ motion to dismiss.




outcome.

                              10
