In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2921

Royce L. Garrott,

Applicant,

v.

United States of America,

Respondent.



Application for a Certificate of Appealability to
Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-CV-4320-JPG--J. Phil Gilbert, Judge.


Submitted December 13, 2000--Decided January
30, 2001



  Before Flaum, Chief Judge, and Easterbrook, Circuit
Judge.

  Per Curiam. The Supreme Court remanded    this case
to us for consideration in light of Slack   v.
McDaniel, 120 S. Ct. 1595 (2000), and the   parties
have filed their statements under Circuit   Rule
54.

  Garrott’s collateral attack under 28 U.S.C.
sec.2255 was dismissed by the district court as
untimely. That court concluded that a judgment
becomes "final" in a criminal case, and the year
within which to commence collateral proceedings
commences, when the court of appeals issues its
mandate. Relying on Gendron v. United States, 154
F.3d 672 (7th Cir. 1988), the district court
rejected Garrott’s argument that a judgment
becomes "final" only when the time to seek
certiorari expires. Under Gendron, when no
request for review is presented to the Supreme
Court, the conclusion of proceedings in the court
of appeals marks finality under sec.2255
para.6(1). Last January we denied Garrott’s
request for a certificate of appealability.
Although the order does not explain our
reasoning, we deemed two considerations
conclusive: First, Gendron establishes a
principle that forecloses Garrott’s position;
second, an appellate argument that seeks only the
resolution of a statutory issue does not present
"substantial showing of the denial of a
constitutional right" (28 U.S.C. sec.2253(c)(2),
emphasis added), and without a substantial
constitutional claim a certificate of
appealability may not issue.

  Responding to Garrott’s petition for certiorari,
the Solicitor General supported Garrott’s
argument that a conviction does not become
"final" until the time available to seek review
by certiorari has expired. The Solicitor
General’s memorandum observed, however, that
given the language of sec.2253 and the holding of
Slack, a certificate of appealability may not be
issued to consider a statutory question
inisolation--though Slack added that if the
petitioner presents a substantial issue of
constitutional law, then a substantial statutory
issue may be appended to a certificate
ofappealability. 120 S. Ct. at 1604; see also
Owens v. Boyd, No. 00-1521 (7th Cir. Dec. 19,
2000). Because Garrott had not endeavored to
present a constitutional claim on appeal, the
Solicitor General reasoned that our order denying
a certificate of appealability was justifiable
even though, in the Solicitor General’s view,
Garrott’s statutory argument about the meaning of
"final" presents a substantial ground for
reversal.

  The Supreme Court’s remand invites us to
consider whether Garrott has a substantial
constitutional question that under Slack could
warrant the issuance of a certificate of
appealability. We are therefore more than a
little surprised that the memorandum the United
States Attorney filed in this court on remand
ignores that subject and addresses only the
statutory subject--and then only by reference to
the Solicitor General’s memorandum in the Supreme
Court. This is useless to us; we are well aware
that the statutory issue could be deemed
"substantial." The subject has occasioned a
conflict among the circuits that the Solicitor
General’s memorandum discusses. (Our court has
recently extended rather than retreated from
Gendron. See Gutierrez v. Schomig, 233 F.3d 490
(7th Cir. 2000). We think, however, that an issue
may be deemed "substantial" if other courts of
appeals disagree with this circuit’s approach.)
Nonetheless, a debatable question of statutory
interpretation is not enough to support a
certificate of appealability. It would have
helped us to receive the views of the United
States on the question the Supreme Court directed
us to address.

  Garrott, whose application for a certificate of
appealability last time around dealt only with
sec.2255 para.6(2), and therefore was doomed
under sec.2253(c)(2) and the holding of Slack,
has at least tried to address the question
covered by the Supreme Court’s order. But his
application, although prepared by counsel, does
not demonstrate that any constitutional issue
presented to the district court, and thus
properly preserved for appeal, is substantial.
The statement Garrott has filed lists 11 issues.
None of these is developed, however, and it is
therefore impossible to say that any is
substantial. Garrott’s first issue, for example,
reads: "The Petitioner’s sec. 851 enhancement was
unconstitutional and illegal." That’s the entire
presentation: no facts, no legal analysis,
nothing beyond the bald assertion. The other 10
questions are similarly shy of detail. For
example, one of the 11 issues reads: "The
Petitioner was denied his Sixth Amendment right
to an impartial jury, as there were no black
persons in the jury pool." But it has long been
established that the Constitution does not
require racial balance on juries. It forbids
devices that divert blacks (and other minorities)
away from jury service, but Garrott does not
contend that any improper device was used to
filter blacks from the venire.

  Instead of attempting to demonstrate that any
of the 11 issues presented to the district court
supports a certificate under the approach of
Slack, Garrott has presented a lengthy argument
based on Apprendi v. New Jersey, 120 S. Ct. 2348
(2000). But the Supreme Court did not instruct us
to consider Apprendi on remand, perhaps because
no argument under Apprendi (or its predecessor
Jones v. United States, 526 U.S. 227 (1999)) had
been presented to the district court--either at
the time of Garrott’s original sentencing, or in
the motion under sec.2255--or to the Supreme
Court itself.

  Let us assume, however, that arguments based on
Apprendi are proper means to take advantage of
sec.2253(b)(2) and Slack. In order to present
such a claim for the first time in this
collateral proceeding Garrott would have to
establish both "cause" and "prejudice." See
Bousley v. United States, 523 U.S. 614, 621-24
(1998); Engel v. Isaac, 456 U.S. 107, 130 n.35
(1982). His Rule 54 statement does not attempt to
do this. Both are steep hurdles, "cause" because
Bousley holds that the novelty of a legal rule is
not "cause" (no external impediment prevented
Garrott from making an Apprendi-like argument at
the time of his sentencing), and "prejudice"
because to show harm Garrott would have to
establish that no reasonable jury could have
found the quantity of drugs necessary to support
his sentence.
  The lack of any reasonable legal basis for a
claim may constitute "cause," see Reed v. Ross,
468 U.S. 1, 16 (1984), but the foundation for
Apprendi was laid long before 1992. Other
defendants began making Apprendi-like arguments
soon after the Sentencing Guidelines came into
being, and in McMillan v. Pennsylvania, 477 U.S.
79 (1986), the Court addressed on the merits an
argument along similar lines. Garrott could have
invoked the themes in McMillan, and for that
matter In re Winship, 397 U.S. 358 (1970), just
as the Justices did in Apprendi. As for
prejudice, in the sense of effect on the outcome:
that’s a hard showing to make even on a direct
appeal, where the defendant can take advantage of
the more lenient "plain error" standard. See
United States v. Nance, No. 00-1836 (7th Cir.
Dec. 29, 2000). Garrott was sentenced to 262
months’ imprisonment, only 22 more than the
maximum sentence available to a person who
distributes any quantity of cocaine base. To
support the extra 22 months, the jury would have
had to conclude that Garrott conspired to
distribute, or possessed with intent to
distribute, only 5 grams of cocaine base. 21
U.S.C. sec.841(b) (1)(C). It seems to us unlikely
that a jury would have found a lesser amount,
given the findings the district judge made in
sentencing Garrott. See United States v. Jackson,
No. 98-2696 (7th Cir. Jan. 10, 2001); United
States v. Mietus, No. 99-3535 (7th Cir. Jan. 22,
2001). Moreover, even then, Garrott could achieve
success only if Apprendi applies retroactively on
collateral attack under Teague v. Lane, 489 U.S.
288 (1989), which no appellate court has held.
See Talbott v. Indiana, 226 F.3d 866 (7th Cir.
2000).

  Neither the Apprendi argument nor any of
Garrott’s other constitutional issues can be
deemed a "substantial" claim. We therefore again
decline to issue a certificate of appealability.
