# United Stat es Court of Appeals For the First C ircuit

No. 01-2545 HERBERT DERMAN, Petitioner, Appellant,

v. UNITED STATES OF AMERICA, Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge ]

Before Selya and Lynch, Circuit Judges , and Schwarzer,* Senior District Judge . RichardE. Miller , with whom Kurzman Karelsen & Frank, LLP was on brief, for appellant. Kevin O'Regan , Assistant United States A t torney, with whom Michael J. Sullivan , United States Attorney, and Dina Michael Chaitowitz , Appellate Chief, were on brief, for appellee.

July 25, 2002

______________ *Of the Northern District of California, sitting by designation.-2- SELYA, Circuit Judge . In this app eal, p etitionerappellant Herbert Derman challenges the district court's denial of his application for p ost -conviction relief. He argues that the Supreme Court's holding in Apprendi v. New Jersey , 530 U.S. 466 (2000) — announced after we rejected his direct appeal but before th e expiration of the time within which he was eligible to a ppl y fo r a writ of certiorari — demands that we set aside his convicti on. A lthough his appeal is ably argued and raises intricate issues (including one that has divided our sister circuits and another that is of first impression at the appellate level), it is in the end unavailing. Consequently, we affirm the district court's dismissal of the application for post-conviction relief. I. BACKGROUND

We limn those facts pertinent to the ins tant appeal, referring readers who crave more exegetic det ail to our opinion affirming the petitioner's conviction. See United S tate s v. Derman , 211 F.3d 175 (1st Cir. 2000).

Beginning in 1984, Marcel Rosenzweig oversaw an underground greenhouse on property owned by the petitioner. This facility housed a hu ge m arijuana-growing operation. The venture prospered for several years.

When word of a large-scale marijuana grow leakedin 1991, police officers visited the site. They were thrown off the scent-3-

by a legal above-ground greenhouse that Rosenzweig and his cohorts

ran to conceal the illegal activities below. Because the officers didnot realize what lay beneath, their search revealed only trace amounts of marijuana.

In an abundance of caution, Rosenzweig moved the enterprise to a different locus. The culprits conti nued growing anddistributing marijuana until the federal government cracked the

case four yea rs later. A federal grand jury sitting in the District of Mass achu setts soon indicted the petitioner and six other persons (including Rosenzweig). The indictment charged the defendants with, inter alia, conspiring to manufacture and distribute marijuana. See 21 U.S.C. §§ 841(a)(1), 846. As part of the consp iracy charge, the indictment specifically mentioned a statutoryprovision mandating a ten- ye ar minimum sentence for conspiracies involving at least 1,000 marijuana plants. See id. § 841(b)(1)(A).

All the defendants, save only the petiti o ner, pleaded guiltyto the charges. The petitioner maintained his innoce nce, asserting that he had no knowled ge of either the underground greenhouse or its unlawful contents. The district court instructed the jury on the standard issues, but not on the question of drug1 The jury acquitted the petitioner on several other charges,

including money laundering. Because the acquitted conduct is not re levant to the issues on appeal, we do not elaborate on th os e counts. -4- quantity. The jury found the petitioner guilty on the conspiracy count and on a related forfeiture count. 1

The jury returned its verdict on July 29, 1998. The district court denied the petit io ner's post-trial motions and scheduled the disposition hearing to take place on March 5, 1999. Drug quantity was a contested issue. See United States v. O'Campo , 973 F.2d 1015, 1026 (1st Cir. 1992) ("[T]he base offense level of

a co-conspirator at sentencing should reflect only the quantity of drugs he reasonably foresees it is the object of the conspiracy to distribute after he joins the conspiracy."). The relevant measure of drug quantity in this cas e was the number of marijuana plants involved. Leaving recidivism to one side, a defendant convicted of participation in a conspiracy that involves fewer than fifty plants can receive an incarcerative sentence of no more than five years. 21 U.S.C. § 841(b)(1)(D). If the conspiracy involved fifty plants

or more, the maximum sentence is twenty years. Id. § 841(b)(1)(C). For a conspiracy of 100 plants or more, th e maximum sentence is fort y years. Id. § 841(b)(1)(B). Finally, for a conspiracy of 1,000 plants or more, the ma xi mum sentence is life. Id. § 841(b)(1)(A). The number of marijuana plants also can dictate a mandatory minimum sentence: five years for 100 plants or more, id.-5-

§ 841(b) (1)(B), and ten years for 1,000 plants or more, id. § 841(b)(1)(A).

In this inst a nce, the probation department prepared a presentence investigation report (the PSI Report) concluding that the petitioner was responsible for 213,000 marijuana plants. The petitioner objected, claiming that he could not reasonably have foreseen the vast amounts of marijuana grown underneath his propertyand elsewhere. On that basis, he argued that his sentence shouldnot be more than five years. See i d. § 841 (b)(1)(D) (establishing a five-year default statutory maximum for a quantity of marijuana less than fifty plants).

The district court flatly rejected the petitioner's contention. Focusing on the fact that 1,000 plants was the number of marijuana plants neededto trigger a ten-year mandatory minimum sentence, see id. § 841(b)(1)(A), the court stated: "I would have to find that the sky was green to conclude that there weren't at least a thousand plants that were foreseeable in this conspiracy at the time that [the petitioner] entered into it . . . ." That said, the court proceeded to calculate the total number of plants attrib uta ble to the petitioner. The court presumed that the petitioner reasonably could have foreseen an output of 200 plants

a month (a total of 26,400 plants over the eleven-year span of the conspiracy). The court then sentenced the petitioner to an-6-

incarc erative term of 121 months (one month above the applicable mandatory minimum).

The petitioner appealed h is conviction, but not his sentence. We rejected his direct appeal on May 5, 2000. Derman , 211 F.3d at 177. In the cou rse of that appeal, he assigned no

error implicating either the jury instructions or the lower court's assessment of drug quantity.

The petitioner had ninety days from the date of entry of

our judgment to file a petition for a writ of certiorari to the Suprem e Court of the United States. See Sup. Ct. R. 13(1). The Supreme Court decided Apprendi on June 26, 2000 — well within that ninety-day window. Apprendi 's core holding is that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submittedto a jury, and proved beyond a reasonable doubt ." 530 U.S. at 490. The petitioner's trial seemingly flouted this principle: after all, the district court didnot instruct the jury

on a fact — drug quantity — that increased the maximum penalty for the petitioner's crime from five years (the default statutory maximum) to life imprisonment. Co mpare 21 U.S.C. § 841(b)(1)(D) with id. § 841(b)(1)(A). The petitioner claims that he instructed his appellate counsel to file a certiorari petition on this ground during the period in which that opportunity was available to him,-7-

but t hat counsel neglected to comply. So ended direct review of the petitioner's conviction and sentence.

The petitioner thereafter retained a new law yer. On April 27, 2001, he launched a collateral attack in the district

c ourt. See 28 U.S.C. § 2255. He asserted that the court had sentencedhim in violation of Apprendi , and that he had received inef fect ive assistance of counsel because his appellate attorney hadignored his instructions to f ile a pet ition for a writ of certiorari.

The district court held a hea ring on October 9, 2001. Ruling from the bench, the court dismissed the petition. Three days later, the court elaborated on its reasoning in a written rescript . T o summarize, the court rejected the petitioner's Apprendi claim for three reasons. It held that Apprendi could not be appliedretroactively to the petitioner's habeas claim; that the petitioner had waived any and all objections to his sentence by failing to challenge the sentence on direct appeal; and that, in all events, the district court's failure to submit the drug quantity quest ion to the jury was harmless because the record containedoverwhelming evidence that the number of marijuana plants involvedin the plot exceeded the number necessary to bring an elevatedmaxim um se ntence into play. On much the same basis the court also rejected the petitioner's ineffective assistance claim.2 To be sure, there are certain circumstances in which a newly

announce d rule may be applied retroactively to a conviction that became final beforehand. See Teague , 489 U.S. at 310. Given the timing here, see text infra , we need not explore these exceptions. -8- This appeal ensued. We granted a ce rtificate of appealability to decide the Apprendi issues. See 28 U.S.C. § 2253(c). II. FINALITY

We begin our analysis by determining the applicability of Apprendi to this petition — a determination that requires us to decide when the petitioner's conviction became "final" within the meaning of the relevant statute.

Whether a convicted defendant may find refuge in a rule of criminal procedure newly announcedby the Supreme Court depends in large part on timing. If the conviction is not yet final when the Supreme Court announces the rule, then inferior court s m ust applythat rule to the defendant's case. Griffith v. Kentucky , 479 U.S. 314, 322 (1987). If, however, the conviction is already final, then the defendant ordinarily may not avail himself of the newly announced rule. Teague v. Lane , 489 U.S. 288, 310 (1989). 2

But words often are chamel eo ns, taking on different shades of meaning in different contexts. The question, then, is how to define the word "fi nal" in this setting. At the time the Court decided Teague , the definition seemed clea r: a conviction becomes final when "a judgment of conviction has been rendered, the3 This one-year limit is subject to certain periods of tolling.

See , e.g. , Neverson v. Bissonnette , 261 F.3d 120, 124 (1st Cir. 2001). These refinements are not relevant here. -9- availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [filed and] finally denied." Griffith , 479 U.S. at 321 n.6.

But the law, by its nature, evolves over time, and the Antiterrorismand Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), casts a shadow on the Griffith de finition. In that statute, Congress for the first tim e establishedtime limits applicable to the filing of habe as petitions: a prisoner (state o r federal) has one year from the date on which his conviction becomes "final" within which to seek federal habeas rel i ef. 3 See 28 U.S.C. §§ 2244(d)(1), 2255. In discussing finality in this context, Congre s s employed slightly differen t term inology in regard to the time limits applicable to state as opposed to federal prisoners. The one-year period for filing a petition from a state court conviction begi ns to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The one-year period for filing a petition challenging a federal court conviction is describedmore tersely; that period begins to run from and after "the date on which the judgment of conviction becomes final . . . ." Id. § 2255.-10- In Gendron v. United States , 154 F.3d 672 (7th Cir. 1998) (per curiam), the Seve nth Circuit determined that the linguistic differences in the two provisions mean t that Congress intended divergent versions of finality for state and federal convictions. T he court reasoned that "[w]here Congress includes particular language in one section of an act but omits it another section of the same act, . . . the language will not be implied where it has been excluded." I d. at 674. Since Congress used the phrase "expiration of the time for seeking such review" only in regard to state pris oners, the court concluded that "federal prisoners who decide not to seek certiorari with the Supreme Court will have the periodof limitations begin to run on the date [the court of appeals] issues the mandate in their direct criminal appeal." Id.

In Kapral v. United States , 166 F.3d 565 (3d Cir. 1999), the Third Circuit took issue with this interpretation. The court expressedconcern that Gen dron invited a series of unfortunate results. Taken at face value, the Gendron rationale means that a federal prisoner can file a collateral attack in the district court andthen continue his pursuit of direct review by filing a certiorari petit ion. Id. at 570-71. Moreover, under that rationale, finality will be defined differ ently for limitation purposes than for purposes of the Teague "new rule" analysis. Id. at 572. Last — but far from least — the Gendron rationale creates an artificial distinction between state and federal prisoners — a-11-

distinction that Congress, given the common origin and purpose of the two AEDPAprovisions, would have had no reason to draw. Id. at 575. In light of these realities, the court determined that Congress intended sections 2244 and 2255 to operate on the same time line. Id. Thus, under the Third Circuit's reading of the AEDPA, a conviction — whether state or federal — do es not become final until "the later of (1) the date on which the Supreme Court affirms the conviction and sentence on the merits or denies the defendant's timely filed petition for certiorari, or (2) the date

on which the defendant's time for filing a timely petition for certiorari review expires." Id. at 577.

Although the Fourth Circuit ha s followed Gendron , see UnitedS tates v. Torres , 211 F.3d 836, 839-41 (4th Cir. 2000), a clear majority of the circuit courts that hav e addressed the question have marched in lockstep with Kapral . See , e.g. , Kaufmann

v. United States , 282 F.3d 1336, 1339 (11th Cir. 2002); United States v. Garcia , 210 F.3d 1058, 1060 (9th Cir. 2000); United States v. Gamble , 208 F.3d 536, 536-37 (5th Cir. 2000) (per curiam); United States v. Burch , 202 F.3d 1274, 1279 (10th Cir. 2000). We too find the Kapral formulation the more persuasive. While it would be pleonastic to rehearse th e Third Circuit's analysis, we feel obliged to emphasize a factor that has special relevance to the instant appeal: the relationship between the-12-

finality of the defendant's conviction and the announcement of new rules of criminal procedure by the Supreme Court.

Five years after Teague was decided, the Court made pellucid that "[a] state conviction and sentence become final for purposes of [the Teague analysis] when the availability of direct appeal to the state courts has been exhausted and the ti me f or filing a petition for a writ of certiorari has elapsed or a timely filedpetition has been finally denied." Caspari v. Bohlen , 510 U.S. 383, 390 (1994). Accordingly, were we to follow Gendron 's leadand distinguish between the finality of state and federal

conv iction s, we would be forced to deny federal prisoners the benefit of a new rule available to similarly situated state prisoners. Such a result is counter-intuitive, and we do not think that Congress intended the nature of the particular sovereign detaining the prisoner to have such a powerful impact on which defendants may avail thems elve s of a new rule. Indeed, we can discern no sensible reason why Congress might wish to classify prisoners in this peculiar manner — and under the best of circumstances, such a taxonomy would be difficult to administer.

Certainly, the minor variation in language between section 2244 and section 2255, respectively, does not demand such

an awkward result. Section 2255 directs that a federal court judgment be "final" — and that term has a well-defined meaning in federal law. See , e.g. , Gri ffith , 479 U.S. at 321 n.6; Hanover-13-

Ins. Co. v. United S tates , 880 F.2d 1503, 1509 (1st Cir. 1989). Section 2244 contains the same directive with respect to state court c onv ictions, but finality is a concept that has differing meanings under the laws of the several states. Compare , e.g. , Warren v. State , 833 S.W.2d 101, 102 (Tenn. Crim. App. 1992) ("If

one convicted of a crime takes no action to perfect his right to appeal, the statute of limitations begins to run from the date of final conviction"), with , e.g. , Mont. Code. Ann. § 46-21-102(1) (defining finality for purposes of state habeas procee dings in a

manner similar to 28 U.S.C. § 2244(d)(1)(A)). Thus, Congress chose to ensure uniformity by explaining what "final" means in the context of a federal habeas petition that seeks to challenge a state court conviction. No similar need existed with respect to federal court convictions (and, thus, the explanatory language was omitted in section 2255).

We will not p aint the lily. We hold that a conviction for a federal defendant who fails to file a petition for a writ of cert ior ari becomes final when the period in which he seasonably might have done so expires. This levels the playing field as between state and federal prisoners desirous of seeking federal habeas relief.

Our construction of section 2255 resolves the threshold question p resent ed in this appeal. Because the Supreme Court de cide d Apprendi while the petitioner still had breathing room-14-

within which to file a petition for certiorari, his conviction was not yet final at th at time. It follows inexorably that the Apprendi rule applies to the petitioner's case. Griffith , 479 U.S. at 322. What remains to be seen is whether Apprendi aids the petitioner's cause. III. THE MERITS

We next trace the contours of the App rendi error that occurredduring the petitioner's tri al and decide whether it necessitates vacation of the petitioner's sentence. A. The Apprendi Error . The government concedes that the petitioner's case suffers from a strain of Apprendi error. In hindsight, the trial court should have asked the jury to determine, beyond a reasonable doubt, whether the underlying conspiracy involved a drug quantity sufficient to trigger a sentence higher than the five-year default statutorymaximum. See United States v. Barnes , 244 F.3d 172, 177- 78 (1st Cir.) (explaining the genesis of the default statutory maximumin an analogous context), cert. denied , 122 S. Ct. 379 (200 1); see also 21 U.S.C. § 841(b)(1)(D) (setting five-year maximumfor a conspiracy involving fewer than fifty marijuana plants). Absent such a determination, the sentence imposed by the district court — ten years and one month — is open to question.

The petitioner tries to define the district court's error more broadly. He asserts that the court transgressed Apprendi by4 This does not mean that a juryneed return a special verdict

describing the precise amount of drugs involved in the conspiracy. It is enough that the jury supportably determines, beyond a -15- dete rmining the drug quantity that was reasonably foreseeable to himra ther than tendering that question to the jury. In other words, he claims that the court should have submitted to the jurors not only the question of drug quantity vis-à-vis the conspiracy but also the individualized question of what drug qu anti ty was attributable to him as a coconspirator. We do not agree: the Apprendi error is far narrower in scope than the petitioner suggests. In Edwards v. United Sta tes , 523 U.S. 511 (1998), the Supreme Court held that, as long as (1) the jury finds beyond a reasonable doubt that a defendant participated in a conspiracy, and (2) the Court sentences him within the statutory maximum applicable to that conspiracy , the court may "determine both the amount and the kind of 'controlled substances' for which [the] defendant shouldbe held accountable — and then . . . impose a sentence that varies depending upon amount and kind." Id. at 513-14. Apprendi , decided two years later, did not purport to overrule Edwards , and the two decisions are easily harmonized: in a drug conspiracy case, the jury should determine the existence vel non of the conspiracyas well as any facts about the conspiracy that will increase the possible penalty for the crime of convictio n beyo nd the default statutory maximum; 4 and the judge should determine, atreasonable doubt, that the conspiracy involves a drug quantity that

surpasses the threshold amount needed to trigger the relevant (higher) statutory maximum. See , e.g. , UnitedStates v. Patterson , 292 F.3d 615, 623 (9th Cir. 2002) (finding no Apprendi error when jury returned a guilty verdict after being instructed on only a threshold quantity). -16- s entencing, the particulars regarding the involvement of eac h participant in the conspiracy. See Edwards , 523 U.S. at 514. This

means that once the jury has determined that the conspiracy involveda type and quantity of drugs sufficient to justify a sentence above the default statutory ma ximum and has found a particular defendant guilty of participation in the conspiracy, the judge lawfully maydetermine the drug quantity attributable to that defend ant and sentence him accordingly (so long as the sentence falls within the statutory maximum made applicab le by the jury's conspiracy-wide drug quantity determination). Cf. United States v. Eirby , 262 F.3d 31 , 3 7 (1st Cir. 2001) (holding, post- Apprendi , that when a sentence falls within the statutory maximum, "judicial determination of drug quantity under a preponderance-of-theevidence standard remains a viable option"). The rule, then, is that the government need only allege and prove to the jury the bare facts nece ssar y to increase the statutory sentencing maximum for the conspiracy as a whole (e.g., that the conspiracy involved at least 1,000 marijuana plants). See United States v. Patterson , 292 F.3d 615, 623 (9th Cir. 2002) (upholding conviction based on jury finding that the defendant was guilty of manufacturing 100 or more-17-

plants, although the jury was not instructed to determine the exact amount). The decision s c ited by the petitioner in support of a contraryrule do not withstand scrutiny. He relies chiefly on UnitedStates v. Nordby , 225 F.3 d 1053 (9th Cir. 2000), but no extendeddiscussion of that decision is warranted. It suffices to

sa y that the Ninth Circuit severely limited Nordby 's reach in UnitedStates v. Buckland , 289 F.3d558, 567-68 (9th Cir. 2002) (en banc), and then issued a decision in Patterson that coheres with the decision we reach today. See Patterson , 292 F.3d at 623.

Our recent opinion in United States v. Bailey , 270 F.3d 83 (1st Cir. 2001), does not advance the pe tit ioner's position. There, the defendant argued that the jury — and not the judge — shouldhave decided the quantity of drugs attributed to him at sentencing. Id. at 85-86. We agreed that, because the defendant had been sentenced to a term above the default statutory maximum,

an Apprendi error had occurred. Id. at 89. We then considered whether the error was harmless and concluded that it was not; the evidence needed to boost the statutory maximum to the next level

was sketchy and permitted a reasonable factfinder to d eci de the drug quantity issue either way. Id. at 89-90. Conseque ntly, we vacatedthe sentence and remanded for resentencing. Id. at 90. The decisive factor in Bailey , however, was the gove rnment's i nabilityto prove beyond a reasonable doubt that the cons pirac y-18-

involvedthe requisite drug quantity necessary to elevate the applicable statutory maximum to the next level. That weakness is not present here. See infra Part III(B).

To summarize, we conclude that an Apprendi error occurred, but that the trial court's determination that the petitioner reasonably could have foreseen that the conspiracy would encompass at least 26,400 marijuana plants should not be regarded

as part and parcel of that error. See Edwards , 523 U.S. at 513-14. Instead, the Apprendi error relates to the failure to have the jury determine the number of plants involved in the conspiracy. It is to the effect of that error that we now turn. B. The Effect of the Error . The next step in the pavane requir es that we determine whether the discernederror invalidates the petitioner's sentence. On this point, the petitioner faces an uphill climb. The fact that Apprendi is available to him in theory (because his conviction was not yet final when Apprendi was decided) does not mean that he can take advantage of that decis ion in practice; the rub is that he failedeither to object to the jury instructions or to contest the trial court's sentencing determination on direct appeal. These omissions transgress the general rule that a criminal defendant must seasonably advance an objection to a potential constitutional5 This rule was first developed in the context of examinations

by federal habeas courts into independent and adequate grounds for procedural default in state trials. E.g. , Wainwright v. Sykes , 433 U.S. 72, 86-89 (1977). The Supreme Court has extended the rule to federal convictions. E.g. , Bousley v. United States , 523 U.S. 614, 622 (1998). -19- inf irmity in order to preserve the point for collateral attack. 5 See Burks v. Dubois , 55 F.3d 712, 716 (1st Cir. 1995).

The rationale behind the rule is straightforward: Acontemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the d emeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question. Wainw right v. Sykes , 433 U.S. 72, 88 (1977). Moreover, the rule prevents "'s and bagging' on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off." Id. at 89. The petitioner concedes that he failed to raise and preserve an Apprendi objection at hi s t rial, but he nonetheless seeks to avoid any penalty for this procedural default on the groundthat Apprendi changedthe traditional method of determining drug quantity for sentencing purposes, and, thus, constituted a watersheddecision. Wh ether or not this characterization of Apprendi is apt, the pet itione r's argument is misguided. The6 This is not to say that h ow o ne categorizes Apprendi is

ir releva nt. Whether Apprendi may properly be classified as a watershedopinion and wh ethe r the petitioner could have foreseen the Court's ruling are factors that go to the "cause" prong of the procedural default analysis. See Bousley , 523 U.S. at 623. Those courts of appeals that have grappled with these questions to date have held unanimously that Apprendi was not a watershed decision, that the Court's opinion was foreseeable to cri mina l defendants, and, therefore, that no cause existed suff ici ent to excuse a procedural default. E.g. , McCoy v. United States , 266 F.3d 1245, 1258-59 (11th Cir. 2001), cert. denied , 122 S. Ct. 2362 (2002); UnitedStates v. Moss , 252 F.3d 993, 1001-03 (8th Cir. 2001), cert. denied , 122 S. Ct. 848 (2002); United States v. Sanders , 247 F.3d 139, 145-46 (4th Cir.), cert. denied , 122 S. Ct. 573 (2001); United States v. Smith , 241 F.3d546, 548-59 (7th Cir.), cert. denied , 122 S. Ct. 267 (2001). We recognize, ho wever, th at most of these decisions produced vociferous dissents, see , e.g. , McCoy , 266 F.3d at 1272-74 (Barkett, J., dissenting); Moss , 252 F.3d at 1005-06 (R. Arnold, J., dissenting), and, gi ven the utter absence of any prejudice here, it would serve no useful purpose to dive gratuitously into these murky waters. -20- inquiry into the applicability of the procedural default rule is, for the most part, black or white: either the defendant proffered

a timely objection or he did not. While there are a few exceptions, see , e.g. , Bousleyv. United States , 523 U.S. 614, 621- 22 (1998) (discussing exception for cla ims that could not be presented without further factual development, e.g., a claim that

a guilty plea was coerced), the subsequent a nno uncement of a Supreme Court ruling — whether or not it blazes new trails — is not one of them. 6

Bousleyillustrates this point. That case involved a habeas app lica tion prosecuted by an individual who had pleaded guilty to a federal firearms offense that was later circumscribed by the Court. Id. at 616-18 (citing Baileyv. United States , 5167 Thi s means, of course, that we need not dwell on the

petitioner's allegation that his appellate counsel was ineffective in failing to file a petition for certiorari. It bears mention, however, that the Supreme Court has explicitl y h eld that the fail ure to file a petition for discretionary review cannot constitute cognizable ineffective assistance of counsel, and, thus, such a failure cannot consti tute cause sufficient to excuse a -21- U.S. 137, 143-50 (1995)). Even though the defendant entered his plea without knowing that the Court subsequentlywould curtail the statute in a way that might have affected the outcome of his case, the Court performed an archetypi c al procedural default analysis when it considered his habeas petition. See id. at 621-22. We see no principled distinction here.

We thus proceed to the question of whe ther the petitioner's proce dura l default is excused. A defendant can surmount this hurdle in one of two ways. First, he can offer evidence sufficient to prove that he is actually innocent of the unde rlying ch arge. Id. at 622. The petitioner makes no such claim. The second way in which a defendant can clear the procedural default hurdle is by showing good cause for the default and actual prejudice resulting therefrom. Burks , 55 F.3d at 716. We use the conjunctive pur pose fully because the defendant must carrythe devoir of persuasion as to both cause and prejudice. Id. Because the petitioner in this case has not su ffic iently demonstratedpreju dice, see text infra , we need not inquire into the question of cause. 7procedural default. Coleman v. Thompson , 501 U.S. 722, 752-53

(1991).

8 The Court recently held, however, that a defendant's failure to object to an Apprendi error at trial engenders plain error review on direct appeal. United States v. Cotton , 122 S. Ct. 1781, 1785 (2002). This is a rigorous standard — under it, a court will reverse a conviction only if, among other things, the error seriouslyaffected the fairness, integrity, or public reputation of the trial — but the showing of prejud ice requi red to excuse a procedural default is even more demanding. Frady , 456 U.S. at 166. -22- The showing of prejudice needed to c ure a procedural default generally requires a habeas petitioner to demonstrate "that 'there is a reasonable probability' that the result of the trial would have been different" absent the error. Strickler v. Green , 527 U.S. 263, 289 (1999) (quoting Kyles v. Whitley , 514 U.S. 419, 433 (1995)). The question is not whether the petitioner, qua defendant, would more likely have receiveda different verdict had the error not occurred, but whether he received a fair trial, understoodas a trial worthy of confidence, notwithstanding the bevue. See Kyles , 514 U.S. at 434; see also Prou v. United States , 199 F.3d 37, 49 (equating th e prej udice standard for ineffective assistance cases with the standard for showing case and prejudice under United States v. Frady , 456 U.S. 152 (1982)).

To be sure, the Supreme Court has not elaborated the precise definition of the cause and prejudice standard for all claims. See Amadeo v. Zant , 486 U.S. 214, 221 (1988). 8 Still, any

error that results in unfairness so p atent as to violate the Due-23-

Process Clause will necessarily satisfy the Strickler and Kyles standards. See Murrayv. Carrier , 477 U.S. 478, 494 (1986).

We analyze the issue of prejudice based on an examination of the record as a whole. See Frady , 456 U.S. at 169. Here, our inquiry focuses on the likelihood that the jury, had it been asked the question, would have found that the underlying conspiracy involvedthe manufacture and distribution of at least fifty marijuana plants. See 21 U.S.C. § 841(b)(1)(C); see also Harris v. UnitedStates , 122 S. Ct. 2406, 2418 (2002). The burden rests with the petitioner to show that there is a reasonable probability that the jury would have reached a different, more favorable conclusion. Coleman v. Thompson , 501 U.S. 722, 750 (1991); Bur ks , 5 5 F.3d at 716. This inquiry need not detain us. The evidence is commanding that the conspiracy of which the appellant was a member involvedfar more than fifty plants, and that any rational jury wouldhave found as much. After all, during the course of the trial the government presented detailed evidence about the size, scope, and inner workings of the criminal cabal. During the seven years that the coconspirators operated the underground greenhouse on the petitioner's property, marijuana was grown in three rooms. Two rooms were 104 feet long and 36 feet wid e, and the other 72 feet long and 38 feet wide. The facility was equipped with special air-conditioning and heating systems, and was powered by an-24-

inde pend ent generator. At its high point, the underground greenhouse housed as m any as 20,000 plants. Individual harvests yieldedas many as 5,000 plants. The alternate site was on the

same order of magnitude; the government seized 5,600 plants when it raided the premises in 1995.

In a nutshell, no reasonable juror could have found that th e conspiracy involved fewer than several thousand marijuana plants. The evidence of the size and duration of the operation was copious. So too was the evidence of the petitioner's participation in the enterprise (indeed, he does not now contest that the government adequately tied him to the marijuana-growing operation). Fairlyviewed, the record as a whole does not lend credence to the petitioner's plaint that the outcome might have been different but for the Apprendi error.

In an effort to blunt the force of this conclusion, the petitioner argues that, had the district court consigned the drugquantity issue to the jury, he wouldhave contested that issue more vigorously. This argument rings hollow. The indictment explicitly statedt hat th e petitioner was charged with conspiracy in the manufacture and distribution of 1,000 or more marijuana plants, and he was thus on notice that he faced a mandatory minimum sentence of ten years unle ss he could cast doubt upon that allegation. That

was incentive enough to mount as robust a challenge as possible. Andto cinch matters, the petitioner has alluded to no evidence9 Even were the issue of foreseeability still open, the

district court's findings seem unimpugnable. Given the sheer size of the marijuana-growing operation, its duration, and the mass of evidence indicating that the petitioner played an integral role in it, there is no realistic possibility, let alone a r easona ble probability, that a ju ry would have attributed fewer than fifty marijuana plants to him. -25- upon which he couldhave based a credible claim that the conspiracy involved only a small number of marijuana plants.

The petitioner also posits that he did not know of the breadth of the conspiracy, and, thus, could not have foreseen the number of plants attributed to him at sentencing. That argument is moot. As we have said, once it was established that the petitioner

was a participant in a conspiracy that involved at least fifty marijuana plants, the dist rict c ourt was free, under Edwards and Apprendi , to determine foreseeability and sentence the petitioner within the elevated statutory maximum. The court did so — and the petitioner eschewed a timely challenge to that determination. 9 IV. CONCLUSION

We need go no further. Although the jury instructions in this case did not anticipate Apprendi , that unpreserved error did not result in cognizable prejudice. Neither the petitioner's trial

nor his sentence were fund amentally unfair. Under the circumstances, the district court appropriately denied the application for post-conviction relief.

Affirmed .