*

The Honorable Walter H. Rice, United States District Judge for the

Southern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0435P (6th Cir.)

File Name: 03a0435p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JUAN LEONARDO PAULINO,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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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 

Before: BOGGS, Chief Judge; SILER, Circuit Judges;

RICE, District Judge.*

_________________

COUNSEL

ARGUED: Pearson N. Bownas, JONES, DAY, REAVIS &

POGUE, Cleveland, Ohio, for Appellant. Frances E. Catron,

2 Paulino v. United States No. 01-6424

ASSISTANT UNITED STATES ATTORNEY, Lexington,

Kentucky, for Appellee. ON BRIEF: Louis A. Chaiten,

JONES, DAY, REAVIS & POGUE, Cleveland, Ohio, for

Appellant. Frances E. Catron, Jane E. Graham, ASSISTANT

UNITED STATES ATTORNEY, Lexington, Kentucky, for

Appellee.

_________________

OPINION

_________________

WALTER H. RICE, District Judge. In this case, Appellant

asks us to reverse the dismissal of his successive motion to

vacate, set aside or correct sentence, filed pursuant to 28

U.S.C. § 2255. The district court had jurisdiction under 28

U.S.C. § 2255, as authorized by this Court. See 28 U.S.C.

§§ 2244(b)(3)(A) & 2255. Our jurisdiction exists under 28

U.S.C. §§ 2253 & 2255. For the reasons which follow, the

district court’s order dismissing Appellant’s successive

motion will be affirmed.

I. Background

In December, 1989, Appellant was convicted by a jury of

conspiracy, tax evasion, and conducting a continuing criminal

enterprise (“CCE”). 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. See 21

U.S.C. § 848(c). He was sentenced to 265 months of

imprisonment for conspiracy and the CCE, and 60 months for

tax evasion, the sentences to run concurrently. In 1991, this

Court vacated Appellant’s conspiracy conviction, but

otherwise affirmed. See United States v. Paulino, 935 F.2d

739 (6th Cir.), cert. denied, 502 U.S. 914 (1991). In 1996,

Appellant filed his first § 2255 motion, arguing for the first

time that the trial court erred by failing to instruct the jury that

it must agree unanimously on the predicate offenses that made

up the “continuing series” of drug violations. The district
No. 01-6424 Paulino v. United States 3

court overruled his motion, adopting the magistrate judge’s

recommendation that Appellant had procedurally defaulted on

the instruction issue, regardless of the merits of his argument,

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. See 1999 WL 282672.

In Richardson v. United States, 526 U.S. 813, 824 (1999),

decided a month after we affirmed the denial of Appellant’s

first § 2255 motion, the United States Supreme Court

“determined that a jury must unanimously agree not only that

the defendant committed some ‘continuing series of

violations,’ but also about which specific ‘violations’ make

up that ‘continuing series.’” Murr v. United States, 200 F.3d

895, 905 (6th Cir. 2000). In Murr, we reviewed Richardson

and held that the Supreme Court announced in that case a new

rule of substantive statutory law which applied retroactively

for purposes of collaterally attacking a judgment or sentence.

200 F.3d at 905-06. Following Murr, Appellant herein

moved this Court to authorize the district court to consider a

successive § 2255 motion, see 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 . . . .”),

contending therein that Richardson announced a new rule of

constitutional law which should be applied retroactively with

regard to his case. A panel of this Court granted the motion

in March of 2000, finding that he had made a prima facie

showing that his proposed ground for relief presented a new

rule of constitutional law that was previously unavailable.

(J.A. at 163.) Following that order, he filed the motion with

the district court that is now the subject of this appeal. In

denying him the relief he sought, the district court adopted the

report and recommendations of the magistrate judge, 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

In reviewing 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, 1004 (6th Cir.), cert. denied,

534 U.S. 1057 (2001).

Permission to file a successive § 2255 motion may be

granted by a panel of a court of appeals if the movant makes

a prima facie case that it raises “a new rule . . . .” 28 U.S.C.

§§ 2244(b)(2)(A) & 2255; Tyler v. Cain, 533 U.S. 656, 662

(2001). Before “a panel of the appropriate court of appeals,”

a movant need only make a prima facie case that he can

satisfy 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 successive motion is not appealable and

cannot be the subject of a petition for rehearing or a writ of

certiorari. Id. §2244(b)(3)(E). Upon review of the merits of

the basis for the successive motion, the district court is

required to dismiss the motion “unless the applicant shows

that the claim satisfies the requirements of this section.” Id.

§ 2244(b)(4).

The parties are now in agreement that the basis for our

decision to certify Appellant’s successive motion for

consideration by the district court was not, despite

Appellant’s representations in his motion for certification,

based on “a new rule of constitutional law” at all.

(Appellant’s Br. at 20-22; Appellee’s Br. at 15, 17 n.2.)

Appellant acknowledges this point because he perceives

himself to be on the horns of a dilemma, owing in no small

part to the Supreme Court’s holding in Tyler, 533 U.S. at 662

(decided after this Court’s certification of Appellant’s

successive motion), that it and only it can say when a newly

recognized rule of constitutional law is to apply retroactively

for purposes of allowing a sentenced defendant to bring a

successive collateral attack on his or her sentence.

(Appellant’s Br. at 20-22.) Recognizing further that the
No. 01-6424 Paulino v. United States 5

1

There would be a constitutional issue if there were an allegation that

the jury did not need to be unanimous in its verdict. However, as both the

Government and Appellant point out in their respective briefs, Richardson

was not about whether the jury had to be unanimous in finding a

continuing criminal enterprise, as no one argued that it did not have to be

unanimous. The issue, rather, was whether, under 21 U.S.C. § 848(c), the

jury had to be unanimous with respect to the existence of a continuing

series of violations generally, or unanimous with respect to the existence

of each predicate violation more specifically. As the majority and

dissenting opinions in Richardson amply show, the case was one of pure

statutory interpretation. Accord Murr, 200 F.3d at 906 (“Richardson

involves the substantive construction of a criminal statute.”).

2

The Court need not, and does not, pass on the implications of the

error because, for the reasons stated in this opinion, 28 U.S.C. § 2255

does not permit a defendant to base a second or successive motion on

Richardson Court did not state that the statutory clarification

it made in that case was to apply retroactively, such that,

under Tyler, the rule announced in Richardson could not be

applied to his case retroactively, despite our statement in

Murr that it should, Appellant turns about face from the

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 interpretation. (Id. at 20-21.)

Supposedly, this argument advances his cause because, of

course, the general rule of statutory interpretation is that novel

interpretations of substantive statutes always apply

retroactively, with the understanding that a statute means

what it says from the date of its enactment. See, e.g., Rivers

v. Roadway Express, 511 U.S. 298, 312-13 (1994); Murr, 200

F.3d at 905-06. Thus, Appellant argues, Murr remains good

law after all, insofar as it held that Richardson is to apply

retroactively, and that, under Richardson, the district court’s

instructions were erroneous as a matter of substantive, not

constitutional, law.1

In light of Richardson, Appellant is correct that the district

court’s jury instructions were erroneous.

2

 Nevertheless, relief

6 Paulino v. United States No. 01-6424

non-constitutional errors. See Tyler, 533 U.S. at 662 (pointing out that a

new rule of constitutional law is a prerequisite “to obtaining relief in a

second or successive” motion). Obviously, in crafting § 2255 as it is now

written, Congress did not find that new rules of statutory law justified

successive motions, a fact which no doubt leaves the merits of many first

§ 2255 motions to timing and chance: a defendant who files his first

motion prior to the recognition of a new rule of statutory law will not be

able to take advantage of such on a successive motion. In crafting § 2255

as it did, Congress was obviously interested in the principle of finality.

under § 2255 is not available at this juncture. 28 U.S.C.

§ 2244(b)(4) states: “A district court shall dismiss any claim

presented in a second or successive application that the court

of appeals has authorized to be filed unless the applicant

shows that the claim satisfies the requirements of this

section.” Because Appellant not only acknowledges, but

outright emphasizes, that “the requirements” for his obtaining

relief in a successive § 2255 motion, to wit: the existence of

a new rule of constitutional law, are not met in this case

(Appellant’s Br. at 20-22), the district court’s order

dismissing his motion will be affirmed.

Appellant contends in his brief that it makes “no

difference” that “Richardson may not be best seen as

announcing a new rule of constitutional law” (id. at 22), and

his counsel reiterated the contention on several occasions at

oral argument. According to Appellant, the requirement that

“a panel of the appropriate court of appeals” certify a

successive motion before it can be entertained by the district

court is a procedural rule that serves a gate-keeping function,

nothing more. Appellant argues that the rule does not have

jurisdictional implications, and, furthermore, that once a court

of appeals has certified a successive motion, its decision

should not be reconsidered. Simply put, Appellant is trying

to have it both ways: arguing for purposes of having his

successive motion certified thatRichardson announced a new

rule of “constitutional law,” while arguing for purposes of

getting around Tyler and having Richardson applied

retroactively that Richardson announced only a new rule of
No. 01-6424 Paulino v. United States 7

3

This panel is satisfied that the issue is not jurisdictional. It will

frequently be the case that a successive motion, once certified by the

appropriate appellate court, will fail on its merits before the district court.

Just as a pre-trial, on-the-merits dismissal of a civil complaint does not

imply a lack of subject matter jurisdiction in the first instance, the fact that

a defendant moving for a successive § 2255 motion ultimately fails to

prove the merits of his motion after having first satisfied his prima facie

burden before the court of appeals does not imply a retroactive lack of

subject matter jurisdiction. 

4We note also that our statement in Murr, that the rule announced in

Richardson applies retroactively, continues to be sound. As noted, in

Tyler, the Supreme Court held that only it can say when a new rule of

constitutional law is to apply retroactively for purposes of raising a

successive collateral attack on a sentence or judgment. Tyler does not

abrogate Murr, however, because, as noted herein and acknowledged by

both parties, Richardson did not announce a new rule of constitutional

law. Therefore, Murr’s interpretation of Richardson is not inconsistent

with Tyler because Richardson, insofar as it announced a new rule of

statutory law, will never be of assistance to a defendant seeking relief via

a successive § 2255 motion, the success of which turns on a new rule of

constitutional law. 

Additionally, Murr discussed the retroactive application of a new rule

of substantive law for purposes of collaterally attacking a jury instruction

via a first § 2255 motion. This distinction is also crucial, namely because

a first motion, unlike a successive motion, need not be based on a new

rule of constitutional law. Tyler, of course, discussed the retroactive

“statutory law.” The Court need not fully explore the merits

of Appellant’s “gate-keeping” proposition because it is beside

the point. This Court need not (and does not) find

Appellant’s earlier mischaracterization of Richardson

jurisdictional in nature, or reconsider its decision to certify his

successive § 2255 motion,3 for it is enough to note that once

his motion came before the district court, his argument for

relief proved to be without merit. Regardless of Appellant’s

burden before this Court to obtain a certificate of

authorization for the district court to entertain his successive

§ 2255 motion, the existence of a new rule of constitutional

law is a “prerequisite[] to obtaining relief in a second or

successive motion” before the district court. Tyler, 533 U.S.

at 662.4 Because he cannot satisfy that prerequisite, the

8 Paulino v. United States No. 01-6424

application of a new rule of constitutional law in the context of

collaterally attacking a sentence or judgment via a second or successive

motion. Thus, because (1) Richardson only announced a new rule of

statutory law, and, in any event, (2) Murr’s interpretation of Richardson

was made in the context of a first § 2255 motion, Murr remains good law.

district court 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 satisfied, dismissal is appropriate in the district court if

the merits of the successive motion do not ultimately satisfy

that same statutory standard).

Appellant argues in the alternative that his motion should

be treated as a petition for a writ of habeas corpus, under 28

U.S.C. § 2241. (Appellant’s Br. at 25-29.) This argument

was only vaguely elaborated upon at oral argument, but it is

readily dismissed. 28 U.S.C. § 2255 contains a savings clause

which allows an incarcerated individual to apply for a writ of

habeas corpus under § 2241 if his remedy under § 2255

appears “inadequate or ineffective to test the legality of the

detention.” In theory, the fact that Richardson did not

announce a new rule of constitutional 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 those instances where the

individual can make a showing of actual innocence. See

Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003).

Appellant has made no such showing in this case. Actual

innocence means factual innocence. See Bousley v. United

States, 523 U.S. 614, 623 (1998). Appellant makes no such

argument that he is actually innocent of conducting a CCE,

and the record, as explored by the magistrate judge and the

district court below, amply demonstrates that 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 Supreme Court held

that the term “uses,” as used in 18 U.S.C. § 924(c)(1), which

enhances the sentence of any defendant who “uses” a weapon

in the commission of a federal crime of violence or drug

trafficking, connotes “active employment.” 516 U.S. at 144.

In other words, the Court held that the Government, in

prosecuting a defendant under § 924(c)(1), must prove more

than that the defendant merely possessed a weapon. Id.

Because Bailey abrogated the overly broad definition of

“uses” as it had then been interpreted by several of the circuit

courts,see 516 U.S. at 142, this Court and other circuit courts

subsequently recognized that defendants who had previously

been sentenced pursuant to 18 U.S.C. § 924(c)(1), on the

basis of the erroneous definition, could attack their sentences

collaterally in light of Bailey, see In re Hanserd, 123 F.3d

922, 928 (6th Cir. 1997), and that they could even resort to 28

U.S.C. § 2241 to do so if relief under § 2255 was “inadequate

or ineffective.” See id. at 929-30. 

The shortcoming to Appellant’s reliance on Bailey is that

the new rule announced in Richardson does not have the same

effect as that announced in Bailey. In the latter, the rule

announced had the effect of rendering many previously

sentenced defendants “actually innocent” of the sentencing

factor on which their sentences had been based, to wit: it

demonstrated that they had not “used” a weapon in the

manner contemplated by Congress. The effect of Richardson

is entirely different. Richardson does not render defendants

who were convicted of conducting a CCE “not guilty,” or

“actually innocent,” merely because the trial court gave

instructions that did not comply with the rule announced

therein (as was the case, it appears, 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 raised it in his first § 2255

motion. Be that as it may, he is not entitled to relief on his

successive motion for the reasons stated above, and, returning

to the immediate point, he is not entitled to relief under

10 Paulino v. United States No. 01-6424

§ 2241 because he has not made a showing that he was

actually innocent, a requirement that was not discharged by

Bailey or its progeny.

Accordingly, even if Appellant’s motion were construed as

a petition for habeas corpus, 28 U.S.C. § 2241, the order of

the district court denying him relief would have to be

affirmed.

III. Conclusion

The order of the district court is AFFIRMED.