               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0394n.06

                                          No. 06-1669                                  FILED
                                                                                    Jun 02, 2009
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


AUDIE DENVER WHEELER,                           )
                                                )
       Petitioner-Appellant,                    )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                       )    EASTERN DISTRICT OF MICHIGAN
                                                )
       Respondent-Appellee.                     )
                                                )
                                                )


Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Petitioner Audie Denver Wheeler appeals from

the order of the district court denying his motion to vacate sentence under 28 U.S.C. § 2255.

Wheeler asserts that the district court erred by holding that Wheeler procedurally defaulted his

argument that the district court imposed his sentence unconstitutionally under Apprendi v. New

Jersey, 530 U.S. 466 (2000). Finding that the district court did not err in its determination that

Weaver defaulted his claim, we affirm.

                                                I.

       A federal grand jury issued a nine-count indictment against Wheeler and two co-defendants

on October 4, 2000. Prior to trial, the government dismissed count nine, which had charged Wheeler

with witness tampering in violation of 18 U.S.C. § 1512(b). United States v. Wheeler, 67 F. App’x

296, 298-99 (6th Cir. 2003). Wheeler proceeded to trial on the remaining counts of the indictment,
Wheeler v. United States, No. 06-1669

and a jury convicted Wheeler of six of the counts: one count of conspiracy to distribute a controlled

substance in violation of 21 U.S.C. § 841(a)(1) and § 846, one count of possession with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1), three counts of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g), and a final count of being a felon in possession of

ammunition in violation of 18 U.S.C. § 922(g). Wheeler, 67 F. App’x at 299. The jury acquitted

Wheeler of one count of being a felon in possession of a firearm, and an additional count in the

indictment was only lodged against Wheeler’s co-defendants. The jury also found that Wheeler’s

conspiracy involved only the distribution of marijuana, not both marijuana and cocaine as the

indictment had charged. Id.

       The district court held two sentencing hearings on February 23 and May 24, 2001, to hear

Wheeler’s objections to the recommendations contained within the Presentence Investigation Report

(“PSR”). Pertinent to the instant appeal, Wheeler’s eleventh objection alleged that the district court

erred by increasing Wheeler’s sentence under the then-mandatory Guidelines through the use of

judge-found facts that the government had not proven beyond a reasonable doubt. Wheeler cited

the then-new Supreme Court holding in Apprendi that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, [sic] and proved beyond a reasonable doubt.” 530 U.S. at 490. The district court

overruled Wheeler’s objection to the use of judge-found facts and proceeded to increase Wheeler’s

recommended sentence to 365 months on the basis of enhancements for possessing a dangerous




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weapon, using a minor to commit a crime, leading a criminal activity involving five or more

participants, and obstructing justice.1

        Wheeler appealed both his conviction and sentence to this court. He, however, did not renew

his contention that the mandatory Sentencing Guidelines regime then in place violated Apprendi.

See Wheeler, 67 F. App’x at 303-07. We affirmed both Wheeler’s jury conviction and 365-month

sentence. Id. at 308.

        On November 29, 2004, Wheeler filed a motion to vacate his sentence under 28 U.S.C. §

2255. Wheeler alleged two grounds for relief – ineffective assistance of counsel and denial of his

Sixth Amendment right to a jury trial because of the use of judge-found facts in applying the

mandatory Sentencing Guidelines. The magistrate judge issued his Report and Recommendation

on November 14, 2005, finding that Wheeler’s ineffective assistance of counsel claim was meritless

and that Wheeler had procedurally defaulted his Sixth Amendment claim by not pursuing the issue

in his direct appeal. On April 28, 2006, the district court adopted the Report and Recommendation

of the magistrate judge. The district court granted a certificate of appealability as to Wheeler’s

Apprendi claim on December 5, 2006; and Wheeler timely appealed.

                                                  II.

        “In reviewing the denial of a motion to vacate, alter, or amend a sentence pursuant to 28

U.S.C. § 2255, we review the district court’s factual findings for clear error and its legal conclusions



        1
         The district court applied these enhancements pursuant to United States Sentencing
Guidelines Sections 2D1.1(b)(1), 3B1.4, 3B1.1(a), and 3C1.1, respectively. The district court
enhanced Wheeler’s sentence for obstruction of justice on the basis of the same witness tampering
allegations that were the subject of the dismissed count nine of the original indictment.

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Wheeler v. United States, No. 06-1669

de novo.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). Wheeler candidly admits

that he “fail[ed] to challenge on direct appeal the district court’s decision not to apply Apprendi at

sentencing.” (App. Br. at 11.) Consequently, Wheeler must demonstrate both cause and actual

prejudice in order to assert his defaulted claim.2 Bousley v. United States, 523 U.S. 614, 622 (1998);

see also United States v. Frady, 456 U.S. 152, 167-68 (1982). Citing to the Supreme Court’s

decision in Reed v. Ross, 468 U.S. 1 (1984), Wheeler argues that because of the “novelty” of the

Apprendi argument at the time of his 2001 sentencing “the legal basis for his Apprendi claim was

not reasonably available” to his counsel. (App. Br. at 24.) Wheeler asserts that few people foresaw

that the definition of statutory maximum would include maximum sentencing ranges under the then

mandatory Guidelines. The government responds by arguing that Wheeler’s proffered justification

cannot count as cause under even Ross’s generous standard. The government does not contest that

the increase in Wheeler’s sentence because of the judge-found enhancements constitutes prejudice.

       Reed involved a collateral attack upon a state conviction for first-degree murder. A jury

convicted Reed in 1969 under a North Carolina murder statue that provided that if the state proved

“the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which

proximately caused death” then the defendant was guilty of at least second-degree murder. 468 U.S.

at 6 (quoting State v. Hankerson, 220 S.E.2d 575, 586 (N.C. 1975)). The burden then shifted to the

defendant to prove as an affirmative defense either that the killing was lawful or that the killing was



       2
         Wheeler does not argue that he is actually innocent of the offenses for which the jury
convicted him. See Bousley, 523 U.S. at 623 (noting that a petitioner who can demonstrate that the
prior proceedings have “probably resulted in the conviction of one who is actually innocent” may
raise previously defaulted claims in a collateral attack (quotation omitted)).

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Wheeler v. United States, No. 06-1669

without malice. Six years later, the Supreme Court held in Mullaney v. Wilbur, 421 U.S. 684, 704

(1975), that such burden-shifting provisions violate the Due Process Clause of the Fourteenth

Amendment and that the prosecution had to bear the burden of proving malice and the lack of self-

defense beyond a reasonable doubt. Two years after Mullaney, the Supreme Court made the

Mullaney decision applicable retroactively. See Hankerson v. North Carolina, 432 U.S. 233, 240

(1977).

          Reed’s murder conviction became final on direct review before the Court decided Mullaney.

North Carolina argued that Reed could not assert the constitutional infirmity of the North Carolina

murder statute on collateral review because Reed had failed to raise the issue in his initial appeal.

Reed, 468 U.S. at 7. The Supreme Court disagreed and held that Reed could raise his claim on

collateral attack because he had demonstrated both cause and prejudice. Id. at 20. Reed had

demonstrated cause because his “constitutional claim [was] so novel that its legal basis [was] not

reasonably available to counsel.” Id. at 16. North Carolina’s murder statute had remained

essentially unchanged for more than a century. Id. at 7. Thus, the extreme “novelty” of a

constitutional issue that would upset one hundred years of settled case law sufficed to excuse Reed’s

failure to assert in the North Carolina state courts what would later prove to be a winning due

process argument.3 Id. at 13.

          Wheeler argues that his situation is analogous to that of Reed – the novelty of applying

Apprendi to the federal Sentencing Guidelines should excuse his counsel’s failure to raise the issue



          3
        North Carolina conceded that Reed had suffered prejudice such that the establishment of
cause entitled Reed to relief. Id. at 12.

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Wheeler v. United States, No. 06-1669

in his initial appeal to this court. Subsequent case law, however, has limited the breadth of Reed’s

holding. In Bousley, the Supreme Court observed, while acknowledging the narrow novelty

exception Reed created, “futility cannot constitute cause if it means simply that a claim was

unacceptable to that particular court at that particular time.” 523 U.S. at 623 (internal quotation

marks and citation omitted). The Supreme Court went on in Bousley to note that “[w]here the basis

of a . . . claim is available, and other defense counsel have perceived and litigated that claim, the

demands of comity and finality counsel against labeling unawareness of the objection as cause for

a procedural default.” Id. at 623 n.2 (alteration and ellipsis in original ) (quoting Engle v. Isaac, 456

U.S. 107, 134 (1982)).

        The facts and procedural posture present in Reed are easily distinguishable from those

Wheeler presents us. Reed did not raise the constitutional infirmity of the North Carolina statute at

all prior to his collateral attack. Reed, 468 U.S. at 7. This was largely because the constitutional

validity of the then traditional state murder statutes appeared to be settled. Id. By contrast, Wheeler

both perceived and raised the constitutional infirmity of the then-mandatory Sentencing Guidelines

at his original sentencing hearings. Wheeler’s counsel was not alone in perceiving this argument.

Between the Supreme Court’s decision in Apprendi on June 26, 2000, and the issuance of our

opinion in Wheeler’s direct appeal on May 29, 2003, we addressed challenges based upon Apprendi

to the Sentencing Guidelines numerous times. See, e.g., Johnson v. United States, 64 F. App’x 502,

504 (6th Cir. 2003); United States v. Giffin, 63 F. App’x 798, 803 (6th Cir. 2003); United States v.

Stines, 313 F.3d 912, 915-19 (6th Cir. 2002); United States v. McLemore, 24 F. App’x 404, 407-08

(6th Cir. 2001); United States v. King, 272 F.3d 366, 374-80 (6th Cir. 2001). The argument Wheeler


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Wheeler v. United States, No. 06-1669

failed to make on appeal is therefore clearly not novel when viewed through the lens of the

jurisprudence of the time. See Bousley, 523 U.S. at 623 n.2 (stating that where other defense counsel

have raised the claim, the issue can hardly be novel); Reed, 468 U.S. at 13 (examining whether the

issue was novel “at the time of [the] . . . court proceeding”); cf. Reed, 468 U.S. at 7 (noting that no

one raised the claim because the law had remained the same for more than a century). The fact that

we were unreceptive to the Apprendi argument at the time cannot excuse Wheeler’s failure to raise

the issue. Bousley, 523 U.S. at 623. Consequently, Wheeler’s counsel made “a tactical decision to

forgo a procedural opportunity” to raise the Apprendi issue on appeal rather than finding himself

surprised at a later date by a truly novel constitutional argument. Reed, 468 U.S. at 14.

                                                 III.

       Because Wheeler has failed to establish cause for the procedural default of his claim, we

affirm the judgment of the district court denying Wheeler’s motion to vacate sentence.




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