IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-31282

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

versus

ARTURO LOPEZ,

Defendant-Appellant

,

Appeal from the United States District Court

for the Western District of Louisiana

April 16, 2001

Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The panel’s opinion filed December 5, 2000, published at 23 3 F.3d 884 (5 t h Cir. 2000), is

withdrawn and the following opinion is substituted therefor.

Arturo Lopez (“Lopez”) appeals from an order by the district court denying his 28 U.S.C.

§ 2255 (2000) (“Section 2255" or “§ 2255") motion to vacate, set aside, or correct his sentence of

300 months’ imprisonment and five years’ supervised release stemming from convictions for engaging

in a continuing criminal enterprise and seventeen counts of possession with intent to distribute

marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1) and § 848. Because we find that the district

court did not err in denying Lopez’s § 2255 motion, we affirm the ruling.1 Lopez’s § 2255 motion is therefore barred on its face because he filed it more than one year

after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). S ee United States v. Flores

, 13 5 F.3d

1000, 1004-05 (5 th Cir. 1998), cert. denied

, 525 U.S. 1091, 119 S.Ct. 846, 142 L. Ed. 2d 700 (1999)

(stating that one year, commencing on April 24, 1996, presumptively constitutes a reasonable time

within which to file for relief under § 2255). However, this appeal concerns the timeliness of Lopez’s

motion under subsection (3) of § 2255.

2 A “series of violations” generally constitutes three or more violations of the federal narcotics

laws. U nited States v. Brown , 202 F.3d 691, 699 (4th Cir. 2000). Moreover, the defendant must

have committed these violations “in concert with five or more other persons whom he organized,

super v ised, or managed and from which [sic] he obtained substantial income or resources.”

Benevento v. United States , 81 F. Supp. 2d 490 (S.D.N.Y. 2000).

2 F ACTUAL & P ROCEDURAL H ISTORY

Lopez was convicted by a jury for engaging in a continuing criminal enterprise (“CCE”) on

May 4, 1994. Lopez’s conviction became final after this Court affirmed his conviction and sentence

on direct appeal on November 21, 1995. On August 26, 1999, Lopez filed a motion to vacate, set

aside, or correct his sentence pursuant to § 2255, 1 arguing that his sentence for engaging in a CCE

was void because of Richardson v. United States

, 526 U. S. 813, 119 S. Ct. 1707, 143 L. Ed. 2d 985

(1999). R ichardson was decided by the United States Supreme Court on June 1, 1999, and held that

a jury must be instructed to reach a unanimous verdict on each of the specific violations that comprise

the alleged “continuing series of violations" charged in the indictment. 2 21 U.S.C. § 848(a).

The district court denied Lopez’s § 2255 motion because it determined that the motion was

unt imely. It found that Lopez failed to demonstrate that R ichardson had been made retroactively

applicable to cases on collateral review by the Supreme Court. The district court, however, granted

him a certificate of appealability to appeal the denial of the § 2255 motion because it determined that

Lopez made a substantial showing that the issue of the retroactivity of R ichardson constituted the

denial of a constitutional right under § 2255(3). Lopez now appeals the denial of the motion.3 D ISCUSSION

Section 2255(3) states that defendants have a one-year limitation period to file a § 2255

motion that runs from “the date on which the right asserted was init ially recognized by the Supreme

Court, if that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review

. . .” 28 U.S.C. § 2255(3). Therefore, in order to consider

the threshold question of whether Lopez’s motion was t imely filed, we must look at the three aspects

of § 2255(3) as it relates to the instant case: 1) whether Richardson creates a “ newly recognized”

right; 2) that is retroactive on collateral review; and 3) that triggers the one-year statute of limitations

on the date that Richardson was “initially recognized.” See id.

I. A “Newly Recognized” Right

Considering the first aspect of § 2255(3), we find that the holding in Richardson regarding

jury unanimity instructions creates a new statutory right for purposes of this statut e. This

interpretation conforms with the structure of other AEDPA provisions, given that § 2244(d ) (1),

which deals with a one-year statute of limitations for state prisoners filing § 2254 habeas petitions,

contains language identical to that of § 2255(3), with the exception that the phrase “constitutional

right” appears instead of the word “right.” Moreover, other AEDPA provisions that refer to

retroactivity on collateral review incorporate the phrase “a new rule of constitutional law.” S ee, e.g.

,

§ 2244(b)(2)(A); § 2254(e)(2)(A)(i); § 2255 (last paragraph). Given that Congress specifically

limit ed the types of rights or rules within both § 2255 and elsewhere in AEDPA, it is reasonable to

conclude that the omission of “constitutional” as a modifier for “right” in § 2255(3) was intentional,

and hence, this section comprehends statutory rights as well.3 Bailey interpreted the “use” of a firearm in 18 U.S.C. § 924(c)(1) to mean the “active

employment of the firearm.” 516 U.S. at 144.

4 Similarly, our sister circuits that have specifically addressed the definition of “ right” i n §

2255(3) have also concluded that the term includes statutory rights. S ee, e.g

. , United States v.

Lloyd

, 188 F.3d 184, 187 (3d Cir. 1999) (holding that although Bailey v. United States

, 516 U.S. 137

(1995), 3 was a case invo lving statutory interpretation, the petitioner had t imely filed under § 2255(3)

and stating “[t]hat the right is founded on statutor y interpretati on rather than on a new rul e of

co nst it ut io nal law is of no moment for purposes of the limitation period under § 2255”); U nited

States v. Valdez 195 F.3d 544, 546 (9 th Cir. 1999) (relying on the “plain language” of § 2255(3) itself

and on the existence of the adjective “constitutional” in an analogous limitations provision for state

prisoners, § 2244(d)(1)(C)); Haugh v. Booker

, 210 F.3d 1147, 1149 (10 t h Cir. 2000) (stating that

“[i]n Bailey

, the Supreme Court recognized

. . . a new right within the meaning of section 2255(3)”)

(citing Lloyd and Valdez ). Although the government concedes t hat o t her circuits have found §

2255(3) to encompass rights resulting from st at ut ory interpretation, it nonetheless argues that

Richardson fails to establish such a right by noting that the Lloyd and Valdez courts did not address

whether the right i n § 2255(3) had to be “newly recognized.” We, however, agree with H augh ’s

implicit endorsement regarding Bailey that the phrase “newly recognized” indicates that the Supreme

Court o fficially acknowledges the appropriate statutory meaning. H augh

, 210 F.3d at 1149 (stating

that “[i]n Bailey

, the Supreme Court recognized for the first time

. . . [the non-criminal feature of]

conduct that had previously supported a conviction in virtually every circuit, thus recognizing a new

right within the meaning of section 2255( 3)”) (emphasis added). Moreover, the government’s5

argument would result in all statutory rights being “non-new” rights, an approach that is inconsistent

with Congress’s desire not to limit § 2255(3) strictly to constitutional rights.

II. The Retroactivity of Richardson Under § 2255(3)

The district court expressly held that Richardson was not retroactively applicable to cases on

collateral review because there is no Supreme Court case that makes it retroactive. We find that the

district court erred in this determination for several reasons.

The relevant porti on o f § 2255(3) states that the “right has been newly recognized by the

S upreme Co urt and made retroactively applicable to cases on collateral review.” 28 U.S.C. §

2255(3). We first find that the district court erred when it read a “by the Supreme Court” limitation

in the clause because the structure of the statute does not lend itself to such an interpretation. See,

e.g., Bailey , 516 U.S. at 145 (1995) (“The meaning of statutory language, plain or not, depends on

context.” (internal quotati ons and citation omitted)); K Mart Corp. v. Cartier, Inc.

, 486 U.S. 281, 291

(1988) (stating that assessment of plain meaning must also depend on the “language and design of

the statute as a whole”). In § 2255 itself and in other AEDPA provisions, Congress has provided

this limitation by placing the phrase “by the Sup reme Co urt ” immediately subsequent to the

retroactivity language. For instance, the final paragraph of § 2255 states that one of two methods

by which a petitioner can base a second or successive § 2255 motion is a “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court

, that was previously

unavailable .” 28 U.S.C. § 2255 (emphasis added). Identical language also appears in § 2244

(b)(2)(A), which involves second or successive habeas corpus petition s under § 2254, and in §

2254(e)(2)(A)(i), which refers to when a federal court may hold an evidentiary hearing on a state

prisoner’s § 2254 petition. Had Congress desired to limit § 2255(3)’s retroactivity requirement, it4 The district c ourt relied on I n re Smith to hold that Richardson is not retroactive on

c ollateral revi ew. 142 F.3d 832, 835 (5 t h Cir. 1998) (stating that the Supreme Court declares

collateral availabilit

y of a new rule of constitutional law either explicitly or by applying the rule in a

collateral proceeding). We find, however, that R ichardson may be distinguished for two reasons.

First, Smith involved new rules of constitutional law and second or successive motions under § 2254,

in which Congres s specifically placed the phrase “by the Supreme Court” subsequent to the

retroactivity limitation. S ee § 2244(b)(2)(A) (“claim relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court ” (emphasis added)). Lopez

, on the

other hand, concerns the substantive reach of a fede ral st at ut e and the timeliness of a first § 2255

motion under § 2255(3) that does not contain a similar limitation by the Supreme Court on

retroactivity.

5 Bousley v. United States , 523 U.S. 614 (1998).

6 would have similarly placed a “by the Supreme Court” limitation immediately after the phrase “made

retroactively applicable to cases on collateral review” in § 2255(3). 4 Thus, we hold that § 2255(3)

does not require that the retroactivity determination must be made by the Supreme Court itself. We

then conduct this retroactivity analysis and hold that R ichardson is retroactively applicable on

collateral review.

We similarly agree with our sister circuits and hold that Richardson is generally retroactively

applicable on collateral review. S ee, e.g., Murr v. United States , 200 F.3d 895, 906 (6 th Cir. 2000)

(stating that “in light of Bousley

, 5 Richardson applies retroactively” on collateral review); Lanier v.

United States , 220 F.3d 833, 838 (7 th Cir. 2000) (reaching a similar conclusion with respect to the

retroactivity of Richardson ). The Supreme Court in R ichardson conducted a routine analysis of 21

U.S.C. § 848(a), the CCE statute at issue in the case, in interpreting the phrase “continuing series of

violations.” See 526 U.S. at 818 (stating that the first step “when interpreting a statute” is to look

at the statutory language). The government argues that T eague v. Lane

, 489 U.S. 288 (1989), which

bars the retroactive use of “new constitutional rules of criminal procedure,” controls this case. Id

.

at 310. We find, however, that T eague is inapplicable, because Richardson consisted of the Supreme7

Court’s interpretation of a statute and is therefore retroactively available on collateral review. See

Bousley

, 523 U.S. at 620 (stating that Teague “is inapplicable to a situation in which [the Supreme]

Court decides the meaning of a criminal statute enacted by Congress”). Therefore, the retroactivity

prong of § 2255(3) is satisfied in this case.

Our precedent moreover supports this view. For example, in United States v. McPhail

, we

described the decision by the Supreme Court in Bailey as “[explaining] what conduct is, and always

has been

, criminalized by the statute” and that it was “a substantive, non-consti t ut ional decision

concerning the reach of a federal statute.” 112 F.3d 197, 199 (5 t h Cir. 1997) (emphasis added). We

held that “[b]ecause Bailey does not pr esent a new rule of criminal procedure, and . . . does not

implicate the retroactivity analysis set forth in Teague v. Lane , 489 U.S. 288 (1989), it applies

retroactively to cases on collateral review.” Id. (citing, inter alia

, Davis v. United States , 417 U.S.

333, 341-47 (1974)); see also Reyes-Requena v. United States

, No. 99-41254, 2001 U.S.App.

LEXIS 2891, at *20 (5 th Cir. Apr. 6, 2001) (agreeing with McPhail that Bailey applies retroactively

on collateral review because it does not implicate the Teague analysis).

III. The Initial Recognition of Richardson under § 2255(3)

A third inquiry is whether Lopez’s motion is barred by the one-year limitations period under

§ 2255(3). Sect ion 2255(3) notes that the limitations period runs for one year from “the date on

which the right asserted was init ially recognized by the Supreme Court.” Our sister circuits have split

on this issue. S ee, e.g., In re Vial , 115 F.3d 1192, 1197 n.9 (4 th Cir. 1997) (en banc) (interpreting

the init ial recognition of the right in § 2255(3) to be the date the Suprem e Court rul es on the

collateral availabilit

y of the rule). B ut see Triestman v. United States

, 124 F.3d 361, 371 & n.13 (2d6 See supra Part II of the discussion.

8 Cir. 1997) (stating in dicta that the Supreme Court speaks to the right at issue, rather than from the

date on which it addresses the retroactive collateral availability of that right).

We find that the better interpretation of when a right is init ially recog nized is one that

c ommences the limitations period on the date the Supreme Court acknowledges the right. The

porti on of § 2255(3) that triggers this limitations period cont ains t he phrase “right asserted.”

Subsequently, “that right” is limit ed by the retroactivity requirement. Therefore, the retroactivity on

collateral review aspect is not contained within the term “right.”

This interpretation is also more persuasive, given the possibil it y of a situation in which the

Court never states that the right is retroactively applicable on collateral review because either the

circuits are in agreement or because it declines to grant certiorari. If the right were to stem from the

Court’s interpretation of a federal statute, it would then be retroactively applicable on collateral

review. 6 However, under the second interpretation, the limitations period would never be triggered,

and any petitioner’s out-of-time motion would be t imely, a li kely unintended consequence by

Congress. Thus, because Lopez filed his § 2255 motion on August 26, 1999, within one year of the

Court’s June 1, 1999, Richardson decision, his motion is timely under § 2255(3).

IV. Procedural Default

Lopez procedurally defau lt ed his claim by failing to raise it on direct review. As such, the

claim may be raised in habeas proceedings only if he is able to demonstrate cause and prejudice. S ee

United States v. Cervantes

, 132 F.3d 1106, 1109 (5 th Cir. 1998) (stating that “review of convictions

under section 2255 ordinarily is limit ed to questions of constitutional or jurisdictional magnitude,

which may not be raised for the first time on collateral review without a showing of cause and9

prejudice”). The district court likewise determined that Lopez’s claim was procedur ally barred

because he ha d failed to show cause and prejudice. We find no prejudice because the lack of a

Richardson

instruction did not so infect “the entire trial that the resulting conviction violat[ed] due

process.” Cupp v. Naughten , 414 U.S. 141, 147 (1973). Nevertheless, even if a defendant cannot

establish cause and prejudice, pursuant to a narrow exception, he may be entitled to relief under 28

U.S.C. § 2255 if the error of a constitutional nature would result in a complete miscarriage of justice.

See Bousley

, 523 U.S. at 620-21 (outlin i ng such a miscarriage of justice where, for example, a

defendant was convicted of “‘an act that the law does not make criminal’”) (citing D avis v. United

States

, 417 U.S. 333, 346 (1974)). We, however, find no such miscarriage of justice here, given the

clear evidence of Lopez’s guilt.

C ONCLUSION

Because we find that Lopez’s claim is procedurally barred, we AFFIRM the district court’s

order denying Lopez’s § 2255 motion to vacate, set aside, or correct his sentence.

AFFIRMED.