RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

File Name: 07a0035p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

B RETT L ANG
, Petitioner-Appellant,

v.

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

> , - - N No. 05-2700

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 05-71898—Patrick J. Duggan, District Judge.

Argued: December 7, 2006

Decided and Filed: January 24, 2007

Before: CLAY, ROGERS, and SUTTON, Circuit Judges.

_________________ COUNSEL

ARGUED: Patricia A. Maceroni, Mt. Clemens, Michigan, for Appellant. Wayne F. Pratt, ASSISTANT UNITED STATES ATTORNEY, De troit, Michigan, for Appellee. ON BRIEF: Patricia A. Maceroni, Mt. Clemens, Michigan, for Appellant. Wayne F. Pratt, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ CLAY, Circuit Judge. Petitioner Brett Lang appeal s the district court’s denial of his motion to vacate his resentencing pursuant to 28 U.S.C. § 2255. Petitioner contends that because he argued that the principle announced in Booker applied to his resentencing, he is entitled to have Booker apply retroactively despite the fact that Booker was decided after his resentencing became final. We disagree and AFFIRM the decision of the district court.

I.

Petitioner was the second most culpable me mber of a major drug conspiracy, which distributed cocaine and heroin for approximate ly four years in 1988 through 1991. The government, using wiretaps, raids, and undercover buys disrupted the conspiracy, which led to the indictment of sixteen individuals.

1No. 05-2700 Lang v. United States Page 2

1 The government voluntarily dismissed the aiding and abetting charge prior to trial; the unlawful use of a telephone charges and one count of the firearms charge were dismissed by the court on Petitioner’s motion for judgment of acquittal.

2 “Stacking” provisions refers to those provisions of the Guidelines mandating that Petitioner’s sentences for possession run consecutively with, rather than c oncurrently to, the conspiracy sentence. See U.S. Sentencing Guidelines Manual § 5G1.2(d) (hereinafter “U.S.S.G.”). Petitioner was indicted on November 12, 1991. The indictment, as modified by the superseding indictment of Fe bruary 13, 1992, charged Petitioner with eight counts involving drugs, firearms, and the unlawful use of a telephone facility. Specifically, Petitioner was charged with one count of conspiracy to possess with the intent to distribute heroin and cocaine under 21 U.S.C. § 846; one count of aiding and abetting the distri bution of heroin under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; two counts of posse ssion with the intent to distri bute a controlled substance under 21 U.S.C. § 841(a)(1); two counts of using a firearm during a drug trafficking offense under 18 U.S.C. § 924(c); and two counts of unlawful use of a telephone under 21 U.S.C. § 843(b). Petitioner pled not guilty, and after a jury trial, was convicted on July 2, 1992 of five of the charges against him. This included conspiracy to possess with the intent to distribute cocaine and heroin, two counts of possession with intent to distribute a controlled s ubstance, and two counts of using a firearm during a drug trafficking offense. Petitioner was sentenced on November 25, 1992 to a total of 384 months imprisonment: 324 months as to the conspiracy count, 240 months as to each possession count to run concurrently with each other and the conspiracycount, and 60 months as to the firearms count, to run consecutively to the other counts. 1 Petitioner appealed, and the Sixth Circuit affirmed in an unpublished opinion on November 8, 1994. United States v. Lang , No. 92-2487, 1994 WL 629393 (6th Cir. Nov. 8, 1994) (unpublished).

On August 22, 1995, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255. On March 19, 1996, the district court denied that motion. This Court affirmed that denial on March 18, 1997. Lang v. United States , No. 96-1507, 1997 WL 123760 (6th Cir. Mar. 18, 1997) (unpublished).

Petitioner subsequently filed a second motion to vacate under § 2255, which the district court transferred to the court of appeals pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, § 105, 110 Stat. 1214, 1220. This Court dismissed Petitioner’s second motion to vacate without prejudice for want of prosecution on December 17, 1996. By order of April 30, 1999, this Court granted Petitioner permission to file a successive § 2255 motion limited to the question of whether Petitioner’s firearm conviction was still valid under Bailey v. United States , 516 U.S. 137, 150 (1995) (holding that “u se” in a statute prohibiting the use of a firearm during a drug offense means that a defendant “actively employed” such firearm).

On May 24, 2000, the district court vacated Pe titioner’s conviction for the firearm offense, and ordered that Petitioner be resentenced. Pe titioner was resentenced on June 13, 2001. Prior to resentencing, Apprendi v. New Jersey , 530 U.S. 466 (2000) was decided, and the district court proceeded at sentencing under the assumption that Apprendiapplied. The district court sentenced Petitioner to a total of 320 months: 240 months on the conspiracy count, and 80 months on each of the possession counts, to run concurrently to each other but consecutively to the conspiracy count. Petitioner appealed his conviction, whic h was affirmed by this Court in United States v. Wingo , 76 F. App’x 30, 2003 WL 22114017 (6th Cir. Sept. 9, 2003) (unpublished). As relevant here, Petitioner challenged the imposition of consecutive sentences, arguing that the drug quantities that triggered the mandatory “stacking” provisions of the senten cing Guidelines were based on facts that were not alleged in the indictment and submitted to a jury. 2 Id. at 35. This Court, although labeling Petitioner’s challenge “clever,” concluded that he could show no Apprendierror because the district court’s sentence was within the statutory maximum for that count. Id. The court thus affirmed Petitioner’s sentence. Id. at 41. Petitioner appealed to the Supreme Court, which denied certiorari.No. 05-2700 Lang v. United States Page 3

3 “Title 28 U.S.C. § 2255 is essentially equivalent to § 2254, the former being a postconviction remedy for federal prisoners and the latter available to ‘a person in custody pursuant to the judgment of a State court.’” Stevenson v. Summers , 258 F.3d 520, 523 n.4 (6th Cir. 2001) (quoting 28 U.S. C. § 2254). Thus, although we recognize that § 2254 and § 2255 are distinct for some purposes not implicated here, we consider cases construing the term “second or successive” in § 2254 highly relevant to the present inquiry. See Lang v. United States , 541 U.S. 967 (2004). Petitioner petitione d for rehearing of that denial, which was denied on May 17, 2004. See Lang v. United States , 541 U.S. 1058 (2004). On June 24, 2004, the Supreme Court decided Blakely v. Washington , 542 U.S. 296 (2004), and subsequently decided United States v. Booker , 543 U.S. 220 (2005).

In light of this new precedent, Petitione r moved again for relief under § 2255, arguing, inter alia , that his sentence of June 13, 2001 was unc onstitutional because of the holdings of Blakelyand Booker . The government moved to transfer this case to the court of appeals, arguing that Petitioner’s motion was a successive petition pursuant to § 2255 and therefore must be certified by a panel of the court of appeals. The district court denied the mo tion to transfer, concluding that it was Petitioner’s first motion to vacate his J une 13, 2001 sentence. On September 20, 2005, the district court denied Petitioner’s motion on its merits, holding that Booker was not retroactive and thus did not apply to Petitioner, becausehis resentencing became final before Blakelywas decided. Petitioner moved for rehearing, which was deniedon November 7, 2005. Petitioner filed a timely notice of appeal on December 5, 2005.

II.

The government argues that Petitioner’s motion to vacate should be dismissed as a second or successive motion that was improperly filed in the district court. Whether or not Petitioner’s motion is “second and successive” within the meani ng of § 2255 is, like all questions of statutory interpretation, an issue that we review de novo

. See United States v. Morris , 203 F.3d 423, 424 (6th Cir. 2000) (citing United States v. Hans , 921 F.2d 81, 82 (6th Cir. 1990)).

Section 2255 provides that “[a] second or succe ssive motion must be certified as provided in section 2244 by a panel of the appropriate c ourt of appeals.” Section 2244(b)(3) provides a procedure for filing a second or successive motion, which requires, inter alia , that the motion originate in the court of appeals and be authorized by a three-judge panel. Moreover, in order for the court of appeals to approve the filing of a second or successive motion, the petitioner must allege certain substantive facts, which Petitioner here undi sputedly cannot show. § 2244(b)(2). If we were to construe Petitioner’s motion as a “second or successive” motion within the meaning of § 2255, Petitioner’s motion would not have been properly file d, and should be dismissed on that basis.

Courts have not, however, construed “second or successive” to encompass all § 2255 motions or habeas petitions that are “numerically ” second in the sense that they are literally the second motion filed. 3 In re Bowen , 436 F.3d 699, 704 (6th Cir. 2006); see also Slack v. McDaniel

, 529 U.S. 473, 487-88 (2000) (holding that second habeas petition raising claims dismissed in previous “mixed” petition was not second or successive); Stewart v. Martinez-Villareal , 523 U.S. 637, 644-45 (1998) (holding that habeas petition raisi ng claim previously dismissed as premature was not second or successive). In Bowen , this Court held that a state habeas petitioner did not present a “second or successive” petition where he filed a second petition raising an ineffective assistance of counsel claim that hewas barred from raising in his original petition for habeas corpus. 436 F.3d at 705. The Bowen court reasoned that “courts defining ‘second or successive’ generally apply abuse of the writ decisions, including those decisions that predated AEDPA.” Id. at 704. The court continued: “Under the abuse of the writ doctrine, a numerically second petition is ‘second’ when it raises a claim that could have been raised in the first petition but was not so raised, either due to deliberate abandonment or inexcusable neglect.” Id. (citing McCleskey v. Zant , 499 U.S. 467,No. 05-2700 Lang v. United States Page 4

4 The district court granted a certificate of appealability as to two issues: “(1) [whether] the utilization of the drug quantities, determined by a mere preponderance, violated Apprendi ; and (2) [whether] the stacking provision of the sentencing guidelines, U.S.S.G. § 5G1.2(d), violated Apprendi because it resulted in a sentence that was beyond the statutory maximum, based on factors not determined by the ju ry or admitted to by Petitioner.” J.A. at 229. We do not, however, consider these issues to be distinct. Petitioner’s brief only objects to one instance where the district court utilized drug quantities found by a preponderance of the eviden ce, namely, the district court’s application of the “stacking” provisions. Accordingly, this is the only issue properly before us.

5 This conclusion is also implicit in the fact that th e prior panel considered Petitioner’s challenge to the “stacking” provisions on its merits during Petitioner’s direct appeal. See Wingo , 76 F. App’x at 35. 489 (1991)). Implicitly affirming this practice, the court applied that standard to Bowen’s claim. Id. at 706.

Other courts of appeals have applied similar principles and held that § 2255 motions or petitions for habeas corpus were not “second or successive” when the second action challenges a judgment or portion of a judgment that arose as a result of a previous successful action. See Hepburn v. Moore , 215 F.3d 1208, 1209 (11th Cir. 2000) (per curiam) (“Every circuit that has addressed the issue has agreed that, under the AEDP A, when new claims originate at resentencing, those claims may be brought in a subsequent habeas petition without the necessity of obtaining permission from the circuit court before filing the petition.”); In re Taylor , 171 F.3d 185, 187-88 (4th Cir. 1999) (section 2255 motion was not “second or successive” when it raised claims that originated at resentencing); Esposito v. United States , 135 F.3d 111, 113 (2d Cir. 1997) (per curiam) (section 2255 motion challenging resentencing was only second or successive “to the extent that it challenge[d] the underlying conviction or seeks to vacate any component of the original sentence that was not amended” (quoting Galtieri v. United States , 128 F.3d 33, 38 (2d Cir. 1997))); Walker v. Roth , 133 F.3d 454, 455 (7th Cir. 1997) (per curiam) (“We hold that a second habeas petition attacking for the first time the constitutionality of a newly imposed sentence is not a second or successive petition.”); United States v. Scott , 124 F.3d 1328, 1330 (10th Cir. 1997) (per curiam) (allowing § 2255 motion to challenge ineffective assistance of counsel at resentencing); see also Dahler v. United States , 259 F.3d 763, 765 (7th Cir. 2001); United States v. Barrett , 178 F.3d 34, 43-44 (1st Cir. 1999) (noting that “decisions have created an exception . . . where the second petition challenges parts of the judgment that arose as th e result of the success of an earlier petition” and noting that that exception did not apply); Luckett v. McDaniel , No. 99-15044, 2000 WL 340124, at *1 (9th Cir. Mar. 28, 2000) (unpublished) (same). By contrast, no circuit that has addressed the issue has held that a § 2255 moti on or a habeas petition that addresses an issue that originates at resentencing is a second or successive petition.

In the instant case, Petitioner is contesting issues that originated at his resentencing. Petitioner’s challenge concerns the district court’s reliance upon drug quantities at resentencing to apply the “stacking” provisions of U.S.S.G. § 5G1.2(d). 4Section 5G1.2(d) provides that “[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or mo re of the other counts shall run consecutively, but only to the extent necessary to produce a comb ined sentence equal to the total punishment.” At resentencing, Petitioner was sentencedfor three convictions: one conviction for conspiracy, and two convictions for possession. With respect to the c onspiracy count, the district court “appl[ied] an Apprenditype approach to [the conspiracy count] and determin[ed] that the maximum sentence on [the conspiracy count was] 20 years.” J.A. at 334-35. However, because the district court determined that the drug quantity findings from Petitioner’s prior sentencing remained appropriate, the district court determined that the Guidelines range was above the statutory maximum. It thus considered itself bound by the Guidelines to apply the § 5G1.2(d) “stacking” provisions and run the sentences for the possession convictions consecutivel y to the sentence for th e conspiracy conviction. This challenge to the Guidelines “stacking” provisions “originates” from Petitioner’s resentencing; 5No. 05-2700 Lang v. United States Page 5

6 At Petitioner’s original sentencing, his firearm convic tion ran consecutively to his drug convictions pursuant to 18 U.S.C. § 924(c).

7 We note that, as Petitioner’s original sentence did not involve an application of the Guidelines “stacking” provisions, there was no way for Petitioner to raise this argument at his original sentencing hearing. We express no opinion as to whether the same result would follow if Petitioner had instead made an argument that could have been raised at his original sentencing hearing, such as a claim th at the district court erred by failing to exercise its discretion to sentence Petitioner below his applicable Guidelines range. at his original sentencing hearing, Petitioner was sentenced to 324 months on the conspiracy count, and the Guidelines “stacking” provisions played no role in the sentence. 6 Because this is Petitioner’s first motion challenging his second sent ence, we can properly consider the motion on its merits, as did the district court. 7We agree with our sister circ uits that, where a claim originates at resentencing and could not have been challenge d at the original sentencing proceeding, the first § 2255 motion challenging that claim is not a “sec ond or successive” motion within the meaning of § 2255, regardless of whether another § 2255 motion has been previously filed.

III.

Despite the fact that Petitioner’s appeal from his resentencing became final before the Supreme Court decided Blakely , let alone Booker , Petitioner argues that his sentence should be vacated so he can be resentenced under those precedents. Petitioner does not dispute that this Court has held that Booker does not apply retroactively to § 2255 motions. Humphress v. United States

, 398 F.3d 855, 860 (6th Cir.), cert. denied

, 126 S. Ct. 199 (2005). Moreover, Humphress makes clear that Booker announced a rule of criminal pro cedure, not a substantive rule. Id. at 860 n.1 (“Without question, this . . . is a procedural [rule].” (citing Schriro v. Summerlin , 542 U.S. 348, 354 (2004))). Petitioner nevertheless argues that Booker applies retroactively to his case because of the Supreme Court’s holding in Davis v. United States , 417 U.S. 333, 342 (1974).

In Davis , the Court faced the issue of “the propriety of the Court of Appeals’ judgment that a change in the law of that Circuit after the pe titioner’s conviction may not be successfully asserted by him in a § 2255 proceeding.” Id. at 341. Davis was convicted fo r failing to report for induction into the armed forces after being drafted. Id. at 336. Davis had failed to keep the board apprised of his current mailing address. Id. at 335. As a result, the draft board’s communications attempting to arrange a pre-induction physical were returned to it. Id. at 336. After two failed attempts the draft board labeled Davis delinquent, which pot entially accelerated the time for his induction. Id. During Davis’s direct appeal , the Supreme Court decided Gutknecht v. United States , 396 U.S. 295 (1970), which “held that the Selective Service regulations that accelerated the induction of delinquent registrants by shifting them to first priority in the order of call were punitive in nature and, as such, were without legislative sanction;” thus a registrant could not be prosecuted for failing to comply with an induction order i ssued pursuant to those regulations. Davis

, 417 U.S. at 338. Davis was declared a delinquent under the same re gulation as Gutknecht, but was prosecuted under a similar but separate regulation. Id. at 335-38. The court of appeal s remanded Davis’s case to the district court for consideration in light of Gutknecht

. Id. at 338. The district court held that Davis’s induction was not accelerated by his delinquency status, and therefore Gutknecht was inapplicable. Id. at 339. It affirmed Davis’s convicti on, as did the court of appeals. Id. at 338-39. While Davis’s case was pending for certiorari, the court of appeals decided United States v. Fox , 454 F.2d 593 (9th Cir. 1971), a case that was indistinguishable from Davis’s case. Davis , 417 U.S. at 339. The Supreme Court denied certiorari of Davis’s direct appeal, and the court of appeals denied rehearing. Id. at 341. Davis then sought relief pursuant to § 2255. Id. On collateral review, the Ninth Circuit held that its earlier affirmance was the law of the case and precluded Davis from relief. Id. at 342. The Supreme Court reversed. The Court first noted that the Ninth Circuit’s decision was inconsistent with the Court’s opinion in Sanders v. United States , 373 U.S. 1, 17 (1963), where theNo. 05-2700 Lang v. United States Page 6

8 The Teague analysis, which construed the rules for retroactivity on habeas under § 2254, has subsequently been applied to analyze claims of retroactivity under § 2255, most notably, for purposes of this case, by the Sixth Circuit in its conclusion that Booker was not retroactive on § 2255 motions. Humphress , 398 F.3d at 860-63.

9Bailey v. United States , 516 U.S. 137, 150 (1995). Court held that “even though the legal issue raisedin a § 2255 motion ‘was determined against (the applicant) on the merits on a prior application,’ ‘the applicant may (nevertheless) be entitled to a new hearing upon showing an intervening change in the law.’” Davis , 417 U.S. at 342 (quoting Sanders , 373 U.S. at 17). The Court then held that “[t]he same rule applies when the prior determination was made on direct appeal from th e applicant’s conviction, instead of in an earlier § 2255 proceeding, ‘if new law has been made . . . since the trial and appeal.’” Id. (alterations in original) (quoting Kaufman v. United States , 394 U.S. 217, 230 (1969)). The Court concluded that the “Court of Appeals erred in holdi ng that ‘the law of the case,’ as determined in the earlier appeal from the petitioner’s conviction, precluded him fr om securing relief under § 2255 on the basis of an intervening change in law.” Id.

Petitioner interprets this holding to mean th at, where a petitioner argues a claim on direct appeal, and his claim is denied, and an “intervening change in law” vindicates the petitioner’s position, that petitioner can obtain relief on that claim under § 2255. We disagree. In our view, subsequent decisions from this Court and th e Supreme Court suggest that the exception in Davis only applies to substantive conduct.

In Teague v. Lane , 489 U.S. 288, 311-13 (1989), the plurality held that, with two exceptions, new rules should not be available on habeas corpus . The first exception is for “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe;” id. at 311 (internal quotation marks omitted), that is, Teague may not apply when the new rule concerns substantive conduct. The second exception is for procedural rules that “implicate the fundamental fairness of the trial.” Id. at 312. 8 Teague , which post-dates Davis , suggests that substantive rules and procedural rules receive different treatment on collateral review.

Davis can be read consistently with Teague by limiting the exception in Davis to substantive conduct. The Supreme Court’s opinion in Bousley v. United States , 523 U.S. 614 (1998), provides support for this reading. There, the Court considered whether the Court’s decision in Bailey v. United States 9 allowed a petitioner to vacate a guilty plea pursuant to a § 2255 motion. The Court refused to apply Teague to the petitioner’s claim. Id. at 620. Although the Court noted that no new constitutional rules were made by Bailey , which merely interpreted statutory law (18 U.S.C. § 924(c)(1)), the Court went on to opine that Teague was inapplicable because it only applied to procedural rules. The Court continued:

This distinction between substance and procedure is an important one in the habeas context. The Teague doctrine is founded on the notion that one of the “principal functions of habeas corpus [is] ‘to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted.’ ” 489 U.S. at 312 (quoting Desist v. United States , 394 U.S. 244, 262 (1969)). Consequently, unless a new rule of criminal procedure is of such a nature that “without [it] the like lihood of an accurate conviction is seriously diminished,” 489 U.S. at 313, there is no reason to apply the rule retroactively on habeas review. By contrast, decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct “‘beyond the power of the criminal law-making authority to proscribe,’” id. at 311, (quoting [Mackey v. United States , 401 U.S. 667, 692 (1971)]), necessarily carry aNo. 05-2700 Lang v. United States Page 7

10 Old Chief v. United States , 519 U.S. 172, 191-92 (1997) (holding that the district court abused its discretion under Fed. R. Evid. 403 by admitting evidence of a prior felony for assault at defendant’s trial for assault and being a felon in possession of a firearm where defendant was willing to stipulate to the prior felony). significant risk that a defendant stands convicted of “an act that the law does not make criminal.” Davis v. United States , 417 U.S. 333, 346 (1974).

Id. at 620 (first and second alterations in original).

Decisions of this Court also suggest that Davis only allows a petitioner moving under § 2255 to re-litigate substantive changes in the law. In In re Green , 144 F.3d 384, 385 (6th Cir. 1998) (per curiam), the petitioner, Green, had been convicted of cocaine possession, conspiracy to distribute cocaine, and of being a felon in possession of a firearm. Filing his third § 2255 petition, Green argued his conviction should be vacated due to a change in the law of evidence, namely, Old Chief v. United States

. 10 Id. Although the court separately concluded that Green’s petition was defaulted, it also rejected Green’s contention that Davis applied:

For [the purposes of determining the retroactivity of Old Chief ], the retroactivity analysis utilized in Davis is not applicable to this case. In Davis , the Supreme Court ruled that where an intervening change in the law is such that a defendant appears to be incarcerated for conduct which the law no longer considers criminal, the new rule of law must be applied retroactively in post-conviction proceedings. Green relies on a Supreme Court decision announcing a new rule of criminal procedure that addressed the admissibility of evidence pursuant to [Rule 403]. Green does not allege, and the record does not reflect, thathe is incarcerated for conduct that is no longer considered criminal.

Id. at 386 (citations omitted); see also Callanan v. United States , 881 F.2d 229, 231 (6th Cir. 1989) (differentiating the retroactivity analysis in Allen v. Hardy , 478 U.S. 255 (1986) as a case that “involved . . . a new constitutional rule of criminal procedure” as opposed to the case at bar that resembled Davis because it involved “a new interpretation of the substantive criminal law”); accord United States v. Woods , 986 F.2d 669, 677 (3d Cir. 1993) (referring to Davis and Teague as “substantive or procedural” doctrinal catagories).

Petitioner relies on Pandelli v. United States , 635 F.2d 533, 534 n.1 (6th Cir. 1980). There, in a footnote, the Sixth Circuit construed the holding of Davis to be “that an issue decided against a prisoner on direct appeal could be relitigated under § 2255.” Id. In Pandelli , however, the issue concerned substantive conduct: Whether “principles of double jeopardy analysis developed after Petitioner’s direct appeal of his convictions in 1976 . . . afford him the right to collateral relief under 28 U.S.C. § 2255.” Id. at 534; see Schriro v. Summerlin , 542 U.S. 348, 352 (2004) (stating that substantive rules apply retroactively because “they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal, or faces a punishment that the law cannot impose upon him ” (emphasis added) (internal quotation marks omitted)). Pandelli thus does not provide Petitioner with any appreciable support.

Likewise, contrary to Petitioner’s contention, Logan v. United States , 434 F.3d 503 (6th Cir.), cert. denied , 127 S. Ct. 581 (2006) does not support Petitioner’s interpretation of Davis

. Logan argued that he was entitled to relief unde r § 2255 based on the Supreme Court’s holding in Jones v. United States , 526 U.S. 227, 239 (1999) (holding that the fact that serious bodily harm occurred was an element of Jones’s federal carjacking prosecution). In Logan , the evidence, according to Logan, failed to show that he had the requisite mental state to kill when he burned down a hotel, killing four people. See Logan , 434 F.3d at 506. Petitioner contends that the fact that the Logan court first noted that Logan’s Jones claim was not raised on direct appeal supportsNo. 05-2700 Lang v. United States Page 8

Petitioner’s contention that the relevant inquiry under Davis is whether a petitioner argued the issue on direct appeal. See id. at 505. Logan , however, supports our view of Davis : The Logan court went on to state that, even if Logan’s procedur al default were excused, Logan could not show a “fundamental defect” under Davis. Id. at 509. At best, the Logan court noted, Jones changed the procedural law governing Logan’s conviction. Id. at 510 (“Because Jones does not render Logan’s conduct legal, Logan does not st and convicted of a noncriminal act and cannot satisfy the ‘fundamental defect’ test.”).

This Court has never relied on Davis to hold that a petitioner with a procedural claim, who raised that claim on direct appeal, and had the cl aim determined against him, was entitled to relief on a § 2255 motion after his direct appeal had becomefinal because a change in the law vindicated the petitioner’s procedural claim. Nor would sucha holding be justified by logic or policy. There is no compelling reason for treating a petitioner who litigates and loses a procedural claim differently from a petitioner who simply does not litigate the procedural claim at all. In either case, society has the same interest in the finality of the proceedings. And in both cases–but unlike the case of a substantive change in the law–the petiti oner is incarcerated for engaging in conduct which society has deemed deserving of punishment. The only distinction between these two cases is that the petitioner who raises his claim and loses is mo re prescient with respect to the development of the law. This is not a quality that should be dignified by affording otherwise equivalent cases different outcomes. Most fundamentally, there is nothing about this legal foresight that affects the justice or injustice of a petitioner’s incarceration. More practically, affording different outcomes to these situations would encourage frivolous clai ms on direct appeal in the hope that subsequent vindication could provide a basis of relief after a change in the law occurs. This is not a wise distinction for the law to draw.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.