* The Honorable Walter H. Rice, United States Distr ict Judge for the

Southern District of Ohio, sitt ing by designati on.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0435P (6th C ir.) File Name: 03a04 35p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J UAN L EONARDO P AULI NO , Petitione r-Appell ant,

v.

U NITED S TAT ES OF A MERICA , Respondent-Appellee. X

- - - -
> , - - N No. 01-6424

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 89-00016—Karl S. Forester, Chief District Judge.

Argued: August 8, 2003
Decided and Filed: December 10, 2003

Befor e: BOGG S, Chief Judg e; SIL ER, Circui

t Judges; RICE, District Judge. *

_________________ COUNSEL

ARGUED: Pearson N. Bownas , JONES, DAY , REAVI S & POGUE, Cleveland, Ohio, for Appellant. Frances E. Catron, 2 Paulino v. United States No. 01-6424

ASSISTANTUNITED STATES ATTOR NE Y, Lexington, Ke nt uc ky, for Appellee. ON BRI EF: Louis A. Chaiten, JONES, DAY, REA VI S & POGUE, Cleveland, Ohio, for Appellan t. Frances E. Catron, Jane E. Graham, ASSISTANT UNITEDSTATES ATTORNEY, L e xington, Kentucky, for Appellee.

_________________

OPINION

_________________ WALTER

H. RICE, District Judge. I n this case, Appellant asks us to reve

rse the d ismissal of

his succe ssive motion to
vaca te, set aside or correct sentence, filed pur suant to 28 U.S.C. § 2255. The district court had jurisdiction under 28 U.S.C. § 225 5, as authorized by this Court. See28 U.S.C. §§ 2244(b)(3)(A) & 2255. Our jurisdiction exists under 28 U.S.C. §§ 2253 & 2255. For the re asons whi ch follow, the districtcourt’s order dismissing Appellant’s successive motion will be affirmed.

I. Background

InDecember, 1 989, App ellant was convicted by a jury of
co ns pi ra cy, tax evasion, and conduct inga continuing criminal enterpr ise (“CC E”). The latter offense requires a showing that the defendant

committed a drug violation that was part of
a continuing series of federal criminal drug violations. See21 U.S. C. § 848(c) . He was s entence d to 265 mont hs o f imprisonmentfor conspiracy and the CCE, and 60 months for tax evasion, th e s en te nc es to ru n c on cu rr en tl y. In 19 91, this C our tvacated Appellant’s conspiracy conviction, but otherwis e af

firmed. See United States v. Paulino , 935 F.2d 739 (6th Cir.), cert. denied, 502 U.S. 91 4 (1991). In 1996, Ap pell ant filed his f

irst § 2255 motion, ar

guing for the f irst time that the trial court erred by

failing to instruct the jury that it must agree unanimous ly

on the predicate offenses that made up the “continuing seri es” of drug violations. The districtNo. 01-6424 Paulino v. United States 3

court overru led hi s mot ion, adopt ing the m agistrate judge’s recommendation

that Appellant had procedurally defaulted on the instruction issue, regar dless of the meritsof his ar gument, and had failed to establish cause and prejudice for the default

. (J.A. at 130-137, 151-152.) We affirmed in an order filed on April 30, 1999. See1999 WL 282672.

In Richardson v. United States , 526 U.S. 813, 824 (1999), decided a month after we affirmed the denial of A ppellant’s first § 2255 motion, the United States Supreme Court “determined

that a jury must unanimously agre e not only that the defendant com

mi tted some ‘continuing series of violations,’ but a ls o about which specific ‘violations’ make up that ‘continuing series.’” Murr v. United States , 200 F.3d 895, 905 (6t h C ir. 200 0). In Murr , we reviewed Richardson and held that the Supreme

Court announced in that case a new rule of substa

ntive stat utory law which applied

retroa ctively for purposes of colla terally attacking a judgment or sentence

. 200 F.3d at 905-0 6. Fol lowi ng Murr , Appella nt herei n moved this Court to authorize the district court to consider a successive § 2255 motion, see28 U.S.C. § 2255 (“Asecond
or success ive motion m

ust be certified as provided in section 2244 by a pane l of

the appropriate court of appeals . . . .”), contendingtherein

that Richardson announced a new rule of constitutional law which should be applied r etroactively

with regard to his case. A panel of

this Court granted the motion inMarch of

2000, find

in g that he had ma

de a prima facie showing that his proposed ground for relief presented a new rule of constitutional

law t hat was previously una vailable. (J.A. at 163.) Following that order, he filed the motion with the district c ourt t

hat is now th e su bj ect of t hi s ap pea l. In denying him the relief he sought, the district court adopted the report and recommendations of the magistrate judg e, who had concluded

that any error that did exist was harmless. (J.A. at 197, 219.) This appeal followed. 4 Paulino v. United States No. 01-6424

II

. Analysis

Inreviewi ng a district court’s denial of a petition filed under § 2255, a court of appeals reviews findings of fact for clear error and conclusions of law de novo

. See Dunlap v. United States , 250 F.3d 1001, 1 004 ( 6th Cir.), cert. denied
, 534 U.S. 1057 (2001).

Permi ssion to file a successive § 2255 motion may be granted by

a panel of a

court of appeals if the movant makes a prima f aciecase tha

t it raises “ a new ru

le . . . .” 2 8 U.S.C. §§ 2244(b)(2)(A) & 22 55 ; Tyler v. C ain , 533 U.S. 656, 662 (2001). Before “a panel of the a ppropriate court of appeals,”
a movant ne ed only

make a pr

ima fa cie case that he can satisf y the above-stated requirement. 28 U.S .C. § 2244(b)(3)(C). The court’s decision to certify or not certify
a motion to file a suc cessive motion is not appealable and cannot be the sub

ject of a petition for rehearing or a writ of certior ari. Id. §2244(b)(3)(E). Upon review of the merits of the basis for the successive motion , the district c ourt is required to dismiss the motion “unless the applicant shows that the c laim satisf

ies the re quireme

nts of this section.” Id. § 2244(b)(4).

The parties a

re now in

agree ment t hatthe basis for our decisionto ce r tify Appellant’s succ essive motion for consideration

by the district court was n ot, despit

e Appellant’s representations in his motion for certification, based on “a ne

w ruleof

constituti onal law”

at all. (App ell ant’s Br. at 20-22; Appellee’s Br. at 15, 17 n.2.) Appellant acknowledges this point because he per ceives himself to be on the horns of a

dilemma, owing in no small part to the Supreme Court’s holdingin Tyler , 533 U.S. at 662 (decided after th is Court’s

certif ica tion of Appellant’s successive motion), that it and only it can say when a newl y recognized

rule of constitutional lawis to apply retroa ctively for purposes of allowing a se ntenc ed defe ndant to bri ng a succes s ive collateral attack on his or her sentence. ( Appella nt’s Br. at 20-22.) Recognizing further that theNo. 01-6424 Paulino v. United States 5

1 There would be a constituti onal issue i f there were an all egati on that the jury did not need to be unanimous in it s verdict. However, as both the Governm ent and App ellant point out in their respective b riefs, Richards on
was no t about whether the jur y had to be unanimous in fi nding a continuing crimi nal ent erpris e, as no one argued that it did not have to be unanimo us. The issue, rather, was whether, under 21 U.S.C. § 848(c), the jury had to be una ni mo us with res pect to the exist ence of a continuing seri es of violati ons gener ally, or unani mous wit h respect to th e exis tence of each pre dicate violation m ore sp ecif ically . As the majority and dissenti ng opinions in Richards on amply show , the case was on e of pure st atuto ry interpr etation

. Acco rd Mu rr , 200 F.3d at 906 (“ Richards on involves the s ubstantive const ruction of a cri minal stat ute.”).

2 The Court

need not , an d do es not, pass on the i mplications of t he

error becaus e, f

or th e reas ons s tat ed inthi s opi nion , 28 U.S. C. § 2255 does not permit a defendant to base a second or successi ve mot ion on Richardson Courtdid not state that the statutory clarific ation it made in that case

wa s to apply

retroa ctively , such tha

t, under Tyler , the rule annou nc ed in Richardson could not be applied to his case retroactively , despite ourstatemen t in Murr that it shou

ld, Appel lant turns

about fa ce from th e argument he proffered when he moved this Court to certify his successive motion, and argues that Richardson was not a constitutional case at all, but was, rather , a case about substantive statutory inter pr etation. (

Id. at 20-21.) Supp os ed ly, this argument advances his cause bec ause, o f course, the general rule of

statutory interpreta

tion is that novel interpretations of substa ntive stat

utes al way s apply
re tr oa ct iv el y, with the understanding that a statut e mea ns what it says from the da

te of its enactment. See, e.g. , Rivers

v. Roadway E

xpress , 511 U.S. 298, 312- 13 (1994) ; Murr , 200 F.3d at 905-06. Thus, Appellant argues, Murr

remains good lawafter a

ll, insofa r as i t held that Richardson is to apply
re tr oa ct iv el y, and

that, under Richardson
, the district court’s instructions were erroneou s as a matter of substantive, not constitutional, law. 1

Inlight of Richardson , Appella nt is correct

that the district court’s jury instructions were e rron eous. 2 N evertheless, relief 6 Paulino v. United States No. 01-6424

non-constitu tional

errors. See Tyler , 533 U.S . at 662 (po inting ou t that a

new rule of c onsti tutional l aw is a prerequisit e “to obtaining rel ief i n a second or suc cessive ” mo tion). O bvio usly, in crafti ng § 2255 as i t i s now writt en, Co ngress did no t find that n ew r ules of stat utorylaw jus tif

ied successive motio ns, a fact whic h no d oub t leaves th e me rits of many first § 225 5 mo tions to timing and cha nce: a defend ant who files his first motion pri or to the recogni tion of a new rul e of s tat

utor y l aw wi ll not be able to take advantage of such on a succ essive mot ion. In cr aft ing § 2255 as it did, C ongr ess was obv iously inter ested in the pr inciple of finality. under § 2255 is no t availab le at this j uncture . 28 U.S.C. § 2244(b)(

4) states : “A distri ct court shall dismi ss any

claim presented in a second

or successive application that the court of app e als has authorized to be filed unless the applicant shows that the c laim satis fies th e requir ements of

this section.” Becaus e Appellant not only acknowle dges, but outright emphasize s, that “the requir ements” for hisobtaining relief ina successive § 2255 motion, to wit: the existence of
a new rule

of consti

tutional la

w, are not met i n thi s case (Appellant’s Br. at 20-22)
, the district court’s order dismissing his motion will be affirmed. Appellant contends

in his brie f th at it

makes “no di fference”

that “ Richardson may

not be best se en a s announcinga new rule of constitutional law”( id. at 22), and his counsel reiterated the contention on several occ asions at oral argument. Accord

ing to Ap pellant, the requirement that “a panel of

th e a pp ro pr ia te co ur t o f a pp ea ls ” c er ti fy a successive motion before it can be entertained by the district court is a procedural rule that serves a g ate-keeping function, nothing more. Appellant argues that the rule does not have jurisdictional implications, and, f urthermore , that once a court of appe als has certified a successive motion, its decision should not be reconsidered. Simply put, Appe llan t is tr ying to have it both ways: ar guing for purposesof h aving h is successive motion certified that Richardson announced a new rule of “constitutional law,” while arguing for purp o ses of gettingaround Tyler

and ha ving R icha rdson applied retroa ctively that Richard

s on announced only a

new rule ofNo. 01-6424 Paulino v. United States 7

3 Th is pane l is satisfied tha t the issue is no t jurisdic tional. It will f requ ently be th e cas e th at asucc essive mot ion, once ce rti fi ed by th e app rop riate app ellate co urt, will fail on its m erits before the district co urt. Just as a pre-trial, on-the-merits dismissal of a civil comp laint does no t imply a lack of

subject matter juri sdict ion in

the f irst inst ance, t

he fact that

a defendant

moving f

or a succes siv e § 225 5 mo tion ultima tely fails to prove the meri ts of

his mot ion af

ter having f

irst sati sfi ed his prim a facie burden before the co urt of appea ls doe s not impl y a r etr oacti ve l ack of subje ct matte r jurisd iction.

4 We note a lso that o ur statem ent in Mu rr , th at the rule a nnou nced in Richards on app lies retro actively , contin ues to b e sou nd. A s noted , in Tyler
, the Supreme Court held tha t only it c an say whe n a newrul e of const it uti onal law is to app ly retroa ctively for p urpo ses of rais ing a successive collat er al a ttack o n a sen tence or jud gme nt. Tyler does not abrogate Mu rr , however, because, as not ed her ein and ack nowle dged by both parties
, Richards on did not anno unce a new r ule of consti tut ional la w. Th erefo re, Mu rr ’s interpre tation o f Richards on is not inconsi sten t with Tyler

because Richards on , insofar as it announc ed a n ew ru le of statutory law , will never be o f assistance to a de fenda nt seekin g relief via

a succe ssive § 225 5 mo tion, t he s ucces s of whi ch turns on a ne w rul e of const it uti onal l aw

. Ad ditiona lly, Mu rr dis cuss ed th e ret roact ive appli cati on of a new rule of substa ntive law for pu rpo ses of co llaterally attacking a jur y i nst ruct ion via a first

§ 2255 motion. This distinction is also crucial, namely bec ause
a fir st moti on, unl ike a su ccessi ve motion, need not be bas ed on a new rule of co nstitutiona l law. Tyler , of c ours e, discussed the r etroactive “statutory law.” The Court ne ed not ful ly explore the merit s of Appellan t’s “ gate -keeping” proposition because it is beside the point. This

Court nee d not (and

does not ) find Appellant’s earlier mischaracterizatio n of Richardson jurisdictional innature, or reconsi der its de cision to c ertify his successive § 2255 motion, 3 for it isenough to notethat once his motion ca

me befor e the distr

ict cour t, his arg ume nt fo r relief proved to be witho

ut merit. Re gardle ss of Appellant’s burden before this Court to obtain a ce rtificate of authorizationfor the district court to enter tain his successive § 2255 m otion, the existence of a new rule of constitutional lawis a “pre

requisite [] to obta ining relief in a second or successive motion” before the district court. Tyler , 533 U.S. at 662. 4 Be ca us e h e c an no t s at is fy t hat prerequisite, the 8 Paulino v. United States No. 01-6424

appli cati on of a new r ule of consti tut ional law in the conte xt of collate rally att acking a sent ence or judgment via a second or succes sive motion. Thus, because (1) Richar dson only announ ced a ne w rul e of statutory la w, and , in any eve nt, (2) Mu rr ’s interpre tation o f Richards on
was made in the context of a first § 225 5 mo tion, Mu rr remains good law. districtcourt was correct in dismissing his motion. See id. at 661 n.3 (pointing out that even after the court of

appeals has certified a successive motion on the basis that the movant

has made a prima facie showing that the statutory standard has been satisfie d, dismissa

l is appro priate in the distri ct court

if the merits of the successive motion do not ultimately satisfy that same statutory standar d). Appellant argues in the alternative th at his motion should be trea ted as a petition for a writ of habeas corpus, under 28 U.S.C. § 22 41. (Appellant’s Br. at 25-29.) This arg ument
was only vague ly e laborat

ed upon a t o ral argume

nt, but it is readily dismissed. 28 U.S.C. § 2255 contains a savings clause whichallows an incar

cerate d individua

l to apply for a wr it of habeas corpus under § 2241 if his rem ed y u nder § 2255 appears “inadequate or ineffective to test the leg ality of the detention.” In theory , the fact that Richardson did not
announce a new rule of constitution al law, such that Appellant is not entitled to relief under a successive § 2255 motion, might have entitled Appellant to relief under § 2241. However, the circuit courts, including our own, have interpreted

§ 2241 as permitting relief thereunder, in lieu of relief under § 2255, only in tho se inst ances where the individua l can make a showing of actual innoce nce. See Ma rtin v. Perez , 319 F.3d 799, 804 (6th Cir. 2003)

. Appellant has made no such show i ng in this case. Actual innocen ce mea ns factual innocence. See Bousley v. United States , 523 U.S. 614, 623 (1998). Appellant makes no such argument that he is actual ly in

nocent of conducting a CCE,
an d the record, as explored by the magistrate judge and the districtcourt be low, amply demonstr ates tha t he would

not be able to do so.No. 01-6424 Paulino v. United States 9

Appellant’s reliance on Bailey v. United States , 516 U.S. 137 (1995), is misplaced. In Bailey , the Supre me Court held that the term “uses,” as used in 18 U.S.C. § 924(c)(1), which enhances the sentence of

any defe ndant who “uses” a

weapon inthe commission of a federal crime of violence or dr ug traffi cking, connotes “active employment.” 516 U.S. at 144. Inother words, the Court held that the G overnmen t, in prosecutinga defendant under § 924(c)(1), must prove more thanthat the defendant merely possessed a we apo n. Id. Becau se Baileyab ro ga te d t he ov er ly broad definition of “uses” as it had then been

interpreted by

several of the circuit courts, see516 U.S. at 142, this Courtand other ci rcuit co urts subseque ntly recognized that defendants whohad previous ly been sente nce d pursuant to 18 U.S.C. § 924(c)(1), on the basis of the erroneous definition, could att ack thei r sentences collater ally in light of Bailey
, see In re Hanse rd , 123 F.3d 922, 928 (6th Cir. 1997), and that they could e ven resort to 28 U.S.C. § 2241 to do

so if relief u nder § 22 55 was “i

nadequa te or ineffective.” See id. at 929-30.

The shortcoming to Appellant’s rel i ance on Baileyis that the new rule announced in Richardson does not ha ve the sa me effect a s that announced in Bailey . In the latter , the rule announced

had the effect of render ing many previous ly sentenced defendants “actually

inn o cent” of the sentencing factor on which the ir se ntences had bee n based, to wit: it demonstrated

tha t the y had not “used” a weapon in the
manner contemplated by Cong

ress. The effect of Richardson is entire ly d

iffere nt. Richardson does not render defenda nts who were c onvi cted of conducting a CCE “not guilty,” or “actua lly innocent,” merely

because th e trial court gave instructions that did notcomply with the rule announced therein (as was t he case , it

appear s, at Appellant’s trial); at most, it requires a new trial. Had Appellant not defaulted on this issue at trial and on direct appeal, he might have found the relief he was seeking

when he r

aised it in his first § 2255 moti on. Be that as it may , he is not e ntitled to r

eli ef on hi s successive motion for the reasons stated above, and, returning to the immediate point, he is not entitled to relief und e r 10 Paulino v. United States No. 01-6424

§ 22 41 because he has not made a showing that he wa s actually innocen t, a re quirement that was not discharged by Baileyor it s p ro ge ny.
Ac co rd in gl y, even if

Appellant’s motion were construed as
a petition for habeas corpus, 2 8 U. S.C. § 2241, the order of the district c ourt deny

ing him r

elie f woul d have to be affirmed.

III. Conclusion

The order of the district court is AFFI RMED.