No. 96-1324 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 MARINA ZARNES, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DAVID S. KRIS Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the amendment made by Section 102 of the Antiterrorism and Effective Death Penalty Act of 1996, requiring prisoners to obtain a certificate of appealability before they may appeal from a district court's denial of a motion under 28 U.S.C. 2255, ap- plies to cases in which the motion was filed before the effective date of the Act, but the notice of appeal was filed after the effective date of the Act. 2. Whether the court of appeals correctly denied a certificate of appealability to petitioner. 3. Whether the certificate-of-appealability provi- sions are constitutional as applied to petitioner. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Statement . . . .2 Argument . . . . 5 Conclusion . . . . 17 TABLE OF AUTHORITIES Cases: Barefoot v. Estelle, 463 U.S. 880 (1983) . . . .16 Boria v. Keane, 90 F.3d 36 (2d Cir. 1996), petition for cert. pending, No. 96-628 . . . . 10 Bradley v. School Bd., 416 U.S. 696 (1974) . . . . 6 Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied, 117 S. Ct. 1114 (1997) . . . . 16 England v. United States, cert. denied, 117 S. Ct. 969 (1997) . . . . 8 Goeke v. Branch, 514 U. S. 115 (1995) . . . . 16 Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir.), cert. denied, 117 S. Ct. 794(1997) . . . . 16 Herrera v. United States, 96 F.3d 1010 (7th Cir. 1996) . . . . 7, 16 Hohn v. United States, 99 F.3d 892 (8th Cir. 1996) . . . . 11 Hunter v. United States, 101 F.3d 1565 (llth Cir. 1996), petition for cert. pending, No. 96-1443 . . . . 8 Jeffries v. Wood, 103 F.3d 827 (9th Cir. 1996) . . . . 9 Jones v. Barnes, 463 U.S. 745 (1983) . . . . 16 Landgraf v. USI Film Prods., 511 U.S. 244 (1994) . . . . 5, 6, 7 Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996), cert. granted, 117 S. Ct. 726(1997) . . . .15 Lowell v. Prunty, 91 F.3d 1358 (9th Cir. 1996), cert. denied, No. 96-7665 (Mar. 31, 1997) . . . .16 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Lozada v. United States, No. 96-2887, 1997 WL 99719 (2d Cir. Mar. 7, 1997) (to be reported at 107 F.3d 1011) . . . . 7, 8, 10, 11 Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063 (6th Cir. 1997), petition for cert. pending, No. 96-1461 . . . . 16 McKane v. Durston, 153 U.S. 684 (1894) . . . .16 Naddi v. Hill, 106 F.3d 275 (9th Cir. 1997) . . . .7, 9 Ross v. Moffitt, 417 U.S. 600 (1974) . . . . 16 Strickland v. Washington, 466 U.S. 668 (1984) . . . .3, 15 Thorpe v. Housing Auth., 393 U.S. 268 (1969) . . . . 6 Thye v. United States, 96 F.3d 635 (2d Cir. 1996) . . . . 7, 10 Travis v. United States, cert. denied, 117 S. Ct. 968 (1997) . . . . 9 United States v. Apker, 101 F.3d 75 (8th Cir. 1996) . . . . 11 United States v. Cots-Loaiza, 936 F. Supp. 756 (D. Colo. 1996) . . . .8 United States v. Coyle, 944 F. Supp. 418 (E.D. Pa. 1996) . . . . 8 United States v. Frady, 456 U.S. 152 0982) . . . .3, 11 United States v. Lopez, 100 F.3d 113 (l0th Cir. 1996) . . . . 7, 10 United States v. Orozco, 103 F.3d 389 (5th Cir. 1996) . . . . 8 United States v. Riddick, 104 F.3d 1239 (l0th Cir. 1997) . . . .8, 10 United States v. Rocha, No. 95-11229, 1997 WL 123580 (5th Cir. Apr. 3, 1997) . . . . 7, 11 United States v. Ruth, 100 F.3d 111 (l0th Cir. 1996) . . . . 7 United States v. Zarnes, 33 F.3d 1454 (7th Cir. 1994), cert. denied, 115 S. Ct. 2286 (1995) . . . .2 Williams v. Calderon, 83 F.3d 281 (9th Cir. 1996) . . . . 16 ---------------------------------------- Page Break ---------------------------------------- v Constitition, statutes, regulation and rule: U.S. Const. Amend. V (Double Jeopardy Clause) . . . . 3 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 . . . . 4 101, 110 Stat. 1217 (28 U.S.C. 2244(d)) . . . . 15 102, 110 Stat. 1217-1218 . . . . 7, 8 110 Stat. 1217 (28 U.S.C. 2253(c)(1)(B)) . . . . 4, 7 110 Stat. 1217-1218: 28 U.S.C. 2253 . . . . 8 28 U.S.C. 2253(c) . . . .7 28 U.S.C. 2253(c)(2) . . . . 4, 11, 14, 15, 16 28 U.S.C. 2253(c)(3) . . . . 4 104(3), 110 Stat. 1218 (28 U.S.C. 2254(d)) . . . . 10, 12 105, 110 Stat. 1220 (28 U.S.C. 2255) . . . . . . . 4, 8, 9, 14, 15 107(c), 110 Stat. 1226 . . . . 12, 13 Education Amendments of 1972, 718, 20 U.S.C. 1617 (1976) . . . . 6 21 U.S.C. 841 (b) (1)(A) (viii) . . . . 2, 3, 15 21 U.S.C. 846 . . . .2 28 U.S.C. Ch. 153 (28 U.S.C. 2241 et seq.) . . . . 12, 13 28 U.S.C. 2253 (1994) . . . . 16 28 U.S.C. 2255 (1994) . . . . 2, 5, 7, 8, 10 28 U.S.C. Ch. 154 (28 U.S.C. 2261 et seq.) . . . . 12 Sentencing Guidelines 1B1.3 . . . . 3 Sup. Ct. R. 13.3 . . . . 1 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1324 MARINA ZARNES, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The judgment orders of the court of appeals (Pet. App. 7, 13) are unreported. JURISDICTION The judgment of the court of appeals was entered on September 30, 1996. Pet. App. 7. A motion for reconsideration was denied on November 22, 1996. Pet. App. 13. The petition for a writ of certiorari was filed on February 20, 1996. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1 ). 1 ___________________(footnotes) 1 The petition for a writ of certiorari was filed more than 90 days after the denial of petitioner's motion for a certificate of appealability, but less than 90 days after the denial of her motion for reconsideration in the court of appeals. See Rule 13.3 of the Rules of this Court. (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Following a jury trial in the United States District Court for the Central District of Illinois, petitioner was convicted on one count of conspiring to manu- facture and to distribute methamphetamine, in vio- lation of 21 U.S.C. 846. She was sentenced to 120 months' imprisonment, to be followed by five years' supervised release. See 21 U.S.C. 841(b)(1)(A)(viii). The court of appeals affirmed, and this Court denied certiorari. United States v. Zarnes, 33 F.3d 1454 (7th Cir. 1994), cert. denied, 115 S. Ct. 2286 (1995). Petitioner then filed a motion to vacate her conviction and sentence under 28 U.S.C. 2255. The district court denied the motion. The court of appeals denied a certificate of appealability and dismissed the appeal. 1. Petitioner was a member of a large-scale methamphetamine conspiracy operating in California and Illinois. As the court of appeals explained in rejecting petitioner's challenge to the sufficiency of the evidence on direct appeal, she "played a crucial role in the early stages of the conspiracy as the * * * dependable supplier of methamphetamine." 33 F.3d at 1465. After an initial sale of methamphetamine in 1987, petitioner and her co-conspirators "set about to standardize their future dealings with one another" and engaged in several additional transactions and telephone conversations during 1988. Ibid. Tape- recorded conversations "indicated that the relation- ship between [petitionerl and [her co-conspirators] was a cooperative and mutually beneficial one." Id. at 1466. 2. On April 4, 1996, petitioner filed a motion to vacate her conviction and sentence under 28 U.S.C. 2255 (1994). Pet. App. 24-34. She raised six grounds ---------------------------------------- Page Break ---------------------------------------- 3 for relief, including claims that her counsel did not provide effective assistance under Strickland v. Washington, 466 U.S. 668 (1984); that her conviction violated the Double Jeopardy Clause; that the evi- dence was insufficient to support the jury's verdict; that the district court miscalculated the purity of the methamphetamine involved in the case; that the court improperly departed upward from the sen- tencing range established by the Sentencing Guide- lines (although the court did not in fact depart); and that the court misapplied the "relevant conduct" prin- ciples of Guidelines lB1.3. See Pet. App. 15 & n.1. On May 28, 1996, the district court filed its order denying petitioner's motion. The court rejected her double jeopardy and sufficiency-of-the-evidence claims on the ground that the court of appeals had already reviewed and rejected those claims on direct appeal. As petitioner had not raised her sentencing claims on direct appeal, however, the court held that she could not raise them on collateral review without a showing of "cause and prejudice" for the procedural default. Pet. App. 16 (citing United States v. Frady, 456 U.S. 152, 166 (1982)). Construing petitioner's Strickland claim both "as an assertion of cause for failure to raise [the sentencing] issues on appeal," ibid., and as an independent claim of error, the court concluded that no relief was warranted because petitioner "has not shown that any of her attorney's alleged errors caused any prejudice," id. at 21. The court explained that it had found petitioner responsible for more than 100 grams of pure methamphetamine, which triggered the ten-year mandatory minimum sentence under 21 U.S.C. 841(b)(l)(A)(viii), based on a finding that petitioner was responsible for a gross amount of 907.2 grams of methamphetamine. Pet. App. 18 & n.2. ---------------------------------------- Page Break ---------------------------------------- 4 The court explained that "[t]herefore, [petitioner's] attorney could have done nothing to reduce the sentence she received." Id. at 19. Petitioner filed a notice of appeal on June 11, 1996. District Court Case No. 89-30070, Docket No. 688. 3. On April 24, 1996, while petitioner's motion was pending in the district court, the President signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub, L. No. 104-132, 110 Stat. 1214, into law. Title I of the Act made changes to the law governing motions for collateral relief for federal prisoners under 28 U.S.C. 2255. The amendments made by Section 102 of the Act to 28 U.S.C. 2253 require a "certificate of appealability" before a prisoner may appeal from a district court's denial of his motion. The new provision states that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from * * * the final order in a proceeding under section 2255." 110 Stat. 1217 (to be codified at 28 U.S.C. 2253 (c)(1)(B)). 2 4. On July 3, 1996, the district court denied peti- tioner a certificate of appealability. District Court Case No. 89-30070, Docket No. 690. On September 30, 1996, the court of appeals denied petitioner a certifi- cate of appealability and dismissed her appeal. Pet. App. 7. A motion for reconsideration was denied by the court of appeals on November 22,1996. Id. at 13. ___________________(footnotes) 2 A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." AEDPA 102, 110 Stat. 1217-1218 (to be codified at 28 U.S.C. 2253(C)(2)). The certificate must "indicate which specific issue or issues satisfy the showing required." Ibid. (to be codified at 28 U.S.C. 2253(c)(3)). ---------------------------------------- Page Break ---------------------------------------- 5 ARGUMENT 1. a. Petitioner contends (Pet. 15-17) that the new statutory requirement that she must obtain a certifi- cate of appealability before appealing the denial of her Section 2255 motion does not apply in this case, because her Section 2255 motion was pending in the district court-but not on appeal-at the time that statutory requirement was enacted. That claim is without merit. In Landgraf v. USI Film Products, 511 U.S. 244 (1994), this Court addressed the circumstances under which "a federal statute enacted after the events in a suit" may be applied to a pending case. Id. at 280. Under Landgraf, "the court's first task is to determine whether Congress has expressly pre- scribed the statute's proper reach." Ibid. When Congress issues a- clear statement regarding the statute's applicability to pending cases, that state- ment controls. Ibid. "When, however, the statute contains no such express command, the court must determine whether the new statute would have retro- active effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Ibid. If a statute that lacks a clear statement would operate retroactively, it may not be applied retroactively. 3 ___________________(footnotes) 3 "A statute does not operate `retrospectively' merely be- cause it is applied in a case arising from conduct antedating the statute's enactment." Landgraf, 511 U.S. at 269. "Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment." Id. at 269-270. That question may be answered by considering "the nature and extent of the change in the law and the degree of ---------------------------------------- Page Break ---------------------------------------- 6 Under the Landgraf analysis, however, procedural rules are generally not "retroactive," even if applied to lawsuits involving conduct that was completed before the rule was promulgated. 511 U.S. at 275. Because procedural rules regulate conduct in litiga- tion, rather than primary conduct of the parties outside the litigation context, litigants have "dimin- ished reliance interests in matters of procedure." Ibid. Thus, "the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retro- active." Ibid. For example, in Thorpe v. Housing Authority, 393 U.S. 268 (1969), this Court held that "an agency circular requiring a local housing authority to give notice of reasons and opportunity to respond before evicting a tenant was applicable to an eviction proceeding commenced before the regulation issued" because the new hearing procedures did not affect either party's primary conduct, that is, their "obliga- tions under the lease agreement." Landgraf, 511 U.S. at 276. Similarly, in Bradley v. School Board, 416 U.S. 696 (1974), this Court held that the newly enacted Section 718 of the Education Amendments of 1972, 20 U.S.C. 1671 (1976), which authorized federal courts to award reasonable attorney's fees to prevailing parties, would apply to a case pending on appeal because the attorney's fee determination was "collateral to the main cause of action" and "uniquely ___________________(footnotes) connection between the operation of the new rule and a relevant past event." Id. at 270. ---------------------------------------- Page Break ---------------------------------------- 7 separable from the cause of action to be proved at trial." Landgraf, 511 U.S. at 276-277. 4 Section 102 of the AEDPA is a procedural change that does not violate any "vested right" under Land- graf. It does not define a new crime or otherwise change the significance of the prisoner's primary conduct. Nor does it change the constitutional stan- dards governing the procedures used at the prisoner's ___________________(footnotes) 4 As this Court warned in Landgraf, however, "the mere fact that a new rule is procedural does not mean that it applies to every pending case." 511 U.S. at 275 n.29. Because procedural rules regulate litigation conduct, it is the time of the litigation conduct, and not the time of the primary conduct underlying the litigation, that matters for purposes of retroac- tivity. Therefore, retroactivity analysis of procedural rules depends "on the posture of the particular case." Ibid. It is our position that 28 U.S.C. 2253(c)(l)(B) does not apply in cases where the notice of appeal was filed before the effective date the Act. That position is in accord with the published decisions of the courts of appeals that have considered the issue. See United States v. Rocha, No. 95-11229, 1997 WL 123580, at *2-*3 (5th Cir. Apr. 3, 1997) (concluding that the amended Section 2253(c) should not be applied to a Section 2255 appeal filed before the Act's effective date); United States v. Lopez, 100 F.3d 113, 116-117 (10th Cir. 1996) (same); United States v. Ruth, 100 F.3d 111, 112 n.1 (10th Cir. 1996) (same); Herrera v. United States, 96 F.3d 1010, 1011-1012 (7th Cir. 1996) (same); Thye v. United States, 96 F.3d 635, 636-637 (2d Cir. 1996) (concluding that the amended Section 2253(c) shou applied to a Section 2255 appeal filed and briefed before the Act's effective date); compare Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997) (concluding that the certificate-of- appealability requirement does not apply if a habeas corpus petition by a state prisoner is filed in district court before the effective date of the Act, even if the notice of appeal is filed after that date). See also Lozada v. United States, No. 96-2887, 1997 WL 99719, at *3 n.2 (2d Cir. Mar. 7, 1997) (to be reported at 107 F.3d 1011). ---------------------------------------- Page Break ---------------------------------------- 8 trial and sentencing. Indeed, Section 102 does not even restrict the scope of relief available under Sec- tion 2255; it merely controls the availability of appellate review. Retroactivity analysis is thus con- trolled by the posture of the particular case at the time the legislation went into effect. The relevant event under Section 102 is the filing of a notice of appeal. The district court in this case denied collateral relief to petitioner on May 28, 1996- one month after the amended Section 2253 was signed into law. Petitioner filed her notice of appeal on June 11, 1996. Therefore, the posture of petitioner's case rendered her appeal from the district court's final order subject to the Act., even though her Section 2255 motion was filed before the effective date of the Act. See Lozada v. United States, No. 96-2837, 1997 WL 99719, at *2-*3 (2d Cir. Mar. 7, 1997) (to be reported at 107 F.3d 1011) (applying certificate- of-appealability requirement where Section 2255 movant's notice of appeal was filed after the effective date of the Act); United States v. Riddick, 104 F.3d 1239, 1240-1241 (lOth Cir. 1997) (same); United States v. Orozco, 103 F.3d 389, 391-392 (5th Cir. 1996) (same); Hunter v. United States, 101 F.3d 1565, 1573 (llth Cir. 1996) (en banc) (same), petition for cert. pending, No, 96-1443 (filed Mar. 10, 1997); see also United States v. Coyle, 944 F. Supp. 418, 419-420 (E.D. Pa. 1996); United States v. Cota-Loaiza, 936 F. Supp. 756, 758-759 (D. Colo. 1996). 5 ___________________(footnotes) 5 This Court has denied certiorari in two cases in which courts of appeals applied the new certificate-of-appealability requirement to cases that were pending in the district court on the effective date of the Act, but in which the prisoner's notice of appeal was not filed until after that date. See England v. United States, cert. denied, 117 S. Ct. 969 (1997); ---------------------------------------- Page Break ---------------------------------------- 9 b. Petitioner argues (Pet. 16) that the courts of appeals are divided on the question presented in this case. In particular, " she cites Jeffries v. Wood, 103 F.3d 827 (1996) (en banc order), in which the Ninth Circuit held in a brief order that the amend- ments made by Title I of the Act, which include the certificate-of-appealability provisions at issue here, do not apply to "cases filed" before the Act's effec- tive date. The order in Jeffries did not elucidate how that rule would apply in this ease, i.e., whether the relevant date for purposes of the certificate-of- appealability requirement is the date the Section 2255 motion was filed in the district court or the date the prisoner's appeal from the denial of a Sec- tion 2255 motion was filed in the court of appeals. In Naddi v. Hill, 106 F.3d 275 (1997), the Ninth Circuit held that, under Jeffries, the certificate-of- appealability requirement does not apply to an appeal by a state prisoner `whose habeas corpus petition was filed in district court before the effective date of the Act, even though his notice of appeal was filed after that date. Thus, it appears that in cases involving state prisoners, the Ninth Circuit has departed from the majority rule. The decision in Naddi, however, did not involve the application of ___________________(footnotes) Travis v. United States, cert. denied, 117 S. Ct. 968 (1997). We have also filed a brief in opposition to certiorari in Durham v. United States, No. 96-7329, a case in the same posture that is now pending before the Court. In Embrey v. United States, No. 96-7325, the prisoner's notice of appeal was filed before the effective date of the Act, but the court of appeals none- theless applied the certificate-of-appealability requirement and dismissed the appeal. In our brief in opposition to certiorari in Embrey, we stated our position that the court of appeals erred in that respect. ---------------------------------------- Page Break ---------------------------------------- 10 the certificate-of-appealability requirement to federal prisoners in petitioner's position, i.e., those who filed their Section 2255 motions before the Act's effective date but who filed their notices of appeal after that date. Moreover, in Naddi, the district court had certified the requested issues for appeal, such that the question whether the certificate-of- appealability requirement applied had no effect on the outcome. The Seventh Circuit's. decision in t-his case thus does not squarely conflict either with Jeffries or with Naddi. 6 Even if a square conflict developed, however, it is not clear that the issue would warrant resolution by this Court. At present, the conflict would affect a defined set of Section 2255 cases-i.e., those that were pending in the d-strict courts, but not on appeal, ___________________(footnotes) 6 The other cases cited by petitioner do not support her claim of a conflict in the circuits. In United States v. Lopez, supra, the court merely held that the certificate-of- appealability provisions do not apply where the notice of appeal was filed before the Act's effective date; the decision has no bearing on cases, such as this one, in which the notice of appeal was filed after the Act's effective date. See Riddick, 104 F.3d at 1240-1241. In Boria v. Keane, 90 F.3d 36 (1996), petition for cert. pending, No. 96-628 (filed Oct, 11, 1996), the Second Circuit considered only the retroactivity of the new deference provisions of the Act, 104 (3), 110 Stat. 1218 (to be codified at 28 U.S.C. 2254(d)). The retroactivity of those provisions is now pending before this Court in Lindh. v. Murphy, No. 96-6298 (argued Apr. 14, 1997). See discussion at pages 12-14, infra. The Second Circuit has adhered to the majority view that the certificate-of-appealability provisions apply to cases in which the notice of appeal was tiled after the Act's effective date. Compare Thye, 96 F.3d at 636-637, with Lozada, 1997 WL 99719, at *3 & n.2. See note 4, supra. ---------------------------------------- Page Break ---------------------------------------- 11 on the effective date of the Act. Even with respect to those cases, applying the certificate-of-appealability requirement will ordinarily, as here, have no effect on the outcome of cases involving constitutional claims. 7. By denying petitioner a certificate of appealability, the court of appeals determined that she had not made even "a substantial showing- of the denial of a constitutional right." AEDPA 102, 110 Stat. 1217- 1218 (to be codified at 28 U.S.C. 2253(c)(2)). Because it is easier to make that showing than it is to prevail on the merits of a constitutional claim, the court of appeals' decision carries with it, a fortiori, a rejection of petitioner's claims on their merits. Cf. United States v. Rocha, No. 95-11229, 1997 WL 123580, at *2 n.2 (5th Cir. Apr. 3, 1997) ("[T]he showing for obtaining a [certificate of appealability] is lower than that required to prevail on the merits."). As ___________________(footnotes) 7 Petitioner raised three non-constitutional claims concern- ing her sentencing. A certificate of appealability may not be issued based on a non-constitutional claim. See Lozada, 1997 WL 99719, at *2; United States v. Apker, 101 F.3d 75 (8th Cir. 1996); Hohn v. United States, 99 F.3d 892 (8th Cir. 1996). As the district court correctly determined (Pet. App. 16), how- ever, petitioner's procedural default of her non-constitutional claims on direct review means that she could not raise them on collateral review absent a showing of cause and prejudice. See United States v. Frady, 456 U.S. 152, 166 (1982). Petitioner's asserted "cause" in this case is her claim of ineffective assis- tance of counsel under Strickland, a purely constitutional claim that was also asserted as an independent ground for relief. See Pet. App. 16. Thus, by denying a certificate of appealability y with respect to petitioner's Strickland claim, the court of appeals determined that her statutory sentencing claims were inexcusably defaulted and could not entitle her to collateral relief. In any event, in this Court petitioner advances only her Strickland claim. See Pet. 9-12. ---------------------------------------- Page Break ---------------------------------------- 12 petitioner therefore could not have succeeded on appeal in any event, further review in this case is not warranted. c. In Lindh v. Murphy, No. 96-6298 (argued Apr. 14, 1997), the Court granted certiorari limited to the question whether amendments to 28 U.S.C. 2254(d) that were made by the Act apply to pending habeas cases. Those amendments establish new require- ments before a court may grant habeas relief to state prisoners. This case need not be held pending the Court's decision in Lindhl because the outcome of Lindh is unlikely to affect the disposition of this case. The petitioner in Lindh presents two primary arguments in support of his claim that the new standards for state prisoner habeas relief do not apply to pending cases. The petitioner in Lindh argues that the Act itself provides that the amendments to the existing federal statutes governing collateral review of convictions should not apply to pending cases. The petitioner in Lindh also argues that even if the Act did not so provide, application of the Landgraf analysis to the Act's new standards for granting habeas relief to state prisoners leads to the conclusion that those new standards do not apply to pending cases. Even if the Court were to accept one or both of those arguments in Lindh, however, the result in this case would remain unaffected. First, the petitioned in Lindh notes that Section 107(c) of the Act provides that "Chapter 154 of title 28, United States Code * * * shall apply to cases pending on or after the date of enactment of this Act." 110 Stat. 1226 (emphasis added). He argues that the Act's statement that its provisions codified in Chapter 154 of Title 28 "shall apply to cases pending" implies that its provisions codified in Chapter 153 of ---------------------------------------- Page Break ---------------------------------------- 13 Title 28 should not apply to pending cases. Both the provision at issue in Lindh altering the bases for granting habeas relief for state prisoners and the provision at issue here requiring a certificate of appealability for federal prisoners are amendments to Chapter 153 of Title 28 and therefore, under the Lindh petitioner's argument, would not apply to pend- ing cases. See generally 96-6298 Pet. Br. 24-40. Even if the petitioner in Lindh is correct, that would not affect the analysis of this case. At most, the Lindh petitioner's argument regarding Section 107(c) of the Act would mean that Congress intended the certificate-of-appealability requirement, like the other amendments to provisions of Chapter 153, not to apply to "cases pending" on April 24, 1996. Because the certtilcate-of-appealability requirement imposes a condition on the filing of a case in the court of appeals, petitioner's argument would therefore show-at most -that that requirement does not apply to "cases pending" in the court of appeals on April 24, 1996. This case was pending in the district court-not in the court of appeals-on that date. Accordingly, this case would be unaffected by adoption of the Lindh petitioner's argument regarding Section 107(c). Indeed, if the Lindh petitioner's argument were accepted, it would draw precisely the same line that we propose regarding the application of the certificate-of-appealability requirement: that require- ment would apply to cases filed in the court of appeals on or after April 24, 1996, but not to "cases pending" in the court of appeals before that date. Second, the petitioner in Lindh argues that even if the Act itself contained no section regarding the application of its various provisions to pending cases, analysis under Landgraf yields the conclusion that ---------------------------------------- Page Break ---------------------------------------- 14 the new standards governing habeas relief for state prisoners do not apply to pending cases. See 96-6298 Pet. Br. 40-66. Acceptance of that argument, how- ever, would also have no effect on this case. Unlike the provision at issue in Lindh, which alters the requirements for granting habeas relief to state prisoners, the certificate-of-appealability provision at issue in this case does not govern the circum- stances under which a conviction may be collaterally attacked. Instead, the certificate-of-appealability provision governs the availability of a particular procedure-appellate review-to correct an error that a district court may have made in ruling on a Section 2255 motion. Therefore, regardless of the Court's conclusion about the proper treatment of the provision at issue in Lindh, the certificate- of-appealability requirement is clearly a new "pro- cedural" rule under Landgraf and, as we argue above, it is applicable to cases that were already filed in the district court-but not in the court of appeals-on the effective date of the Act. 2. Petitioner argues (Pet. 9-12) that the court of appeals erred in refusing to issue a certificate of appealability in her case. A certificate of appeal- ability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." AEDPA 102, 110 Stat. 1217-1218 (to be codified at 28 U.S.C. 2253(c)(2)). The court of appeals correctly found that petitioner failed to make such a showing in this case. In any event, further review would not be warranted to determine whether the court of appeals applied the statutory standard cor- rectly to the particular facts of this case. Petitioner asserts (Pet. 10-11) that the court of appeals should have granted a certificate of appeal- ---------------------------------------- Page Break ---------------------------------------- 15 ability with respect to the claim that her attorney was ineffective for failing to object to the "purity" of the methamphetamine involved in this case. The district court noted that its finding that. petitioner's sentence should be based on her responsibility for more than 100 grams of pure methamphetamine-the amount required to trigger the mandatory minimum sentence provisions of 21 U.S.C. 841(b)(l)(A) (viii)- was based on the finding in the presentence report that petitioner was responsible for a gross amount of more than 907 grams of methamphetamine, coupled with "trial testimony regarding the purity of the methamphetamine." Pet. App. 18 n.2. Petitioner's Strickland claim was thus properly denied because no prejudice could have resulted from her attorney's failure to challenge the purity of the methamphet- amine. See Strickland v. Washington, 466 U. S.. 668, 687 (1984). 3. Petitioner contends (Pet. 12-14) that the certificate-of-appealability provisions are unconstitu- tional because they "(appear[] to take away any op- portunity for appellate review." 8. The Act expressly permits appeal, however, if the prisoner can make a "substantial showing" of the denial of a constitu- tional right. AEDPA 102, 110 Stat. 1217-1218 (to be codified at 28 U.S.C. 2253(c)(2)). Every court of __________________(footnotes) 8 Petitioner also alleges that the new time-limit provisions, added to Section 2255 by Section 105 of the Act, 110 Stat. 1220, are unconstitutional. That claim is not properly before this Court, as no court has suggested that petitioner's Section 2255 motion was untimely. See Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc) (one-year time limit provisions of 28 U.S.C. 2244(d) and 2255 apply only to collateral attacks filed more than one year after effective date of the Act), cert. granted, 117 S. Ct. 726 (1997) (No. 96-6298). ---------------------------------------- Page Break ---------------------------------------- 16 appeals to consider the issue has held that the "sub- stantial showing" requirement in Section 2253(c)(2) is identical to the showing that state prisoners had to make under former Section 2253 in order to appeal from an adverse district court decision on a habeas petition. See, e.g., Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997), petition for cert. pending, No. 96-1461 (filed Mar. 14, 1997); Drinkard v. Johnson, 97 F.3d 751, 755-756 (5th Cir. 1996), cert. denied, 117 S. Ct. 1114 (1997); Herrera v. United States, 96 F.3d 1010,1012 (7th Cir. 1996). Cf. Greenawalt v. Stewart, 105 F.3d 1268, 1272-1273 (9th Cir.), cert. denied, 117 S. Ct. 794 (1997); Lowell v. Prunty, 91 F.3d 1358, 1359 (9th Cir. 1996), cert. denied, No. 96-7665 (Mar. 31, 1997); Williams v. Calderon, 83 F.3d 281, 286 (9th Cir. 1996). This Court's decision in Barefoot v. Estelle, 463 U.S. 880, 887-888,892-893 (1983), which approved the certificate- of-probable-cause provisions of former Section 2253, makes clear that such a requirement is constitu- tional. Indeed, the Constitution does not require that appeal be made available on direct review, much less on collateral review. 9. See Goeke v. Branch, 514 U.S. 115,120 (1995) (per curiam); Jones v. Barnes, 463 U.S. 745, 751 (1983); Ross v. Moffitt, 417 U.S. 600, 611 (1974); McKane v. Durston, 153 U.S. 684, 687 (1894). ___________________(footnotes) 9 The new certificate-of-appealability requirement differs from the certificate-of-probable-cause requirement under prior law in that the new provision requires a substantial showing as to particular issues, not the entire application for collateral review. But petitioner does not suggest that there is any constitutional significance to that change. Moreover, as noted above, the denial of a certificate on a constitutional claim demonstrates that the prisoner would not be able to prevail on appeal in any event. ---------------------------------------- Page Break ---------------------------------------- 17 Accordingly, petitioner's constitutional challenge is without merit. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. APRIL 1997 WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DAVID S. KRIS Attorney April 1997 ---------------------------------------- Page Break ----------------------------------------