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Title United States v. Roberson

Date 1999

By Alito

Subject Habeas Corpus

Contents

Page 1

LEXSEE 194 F3D 408

UNITED STATES OF AMERICA, v. KEVIN ROBERSON, Appellant

No. 97-7309

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

194 F.3d 408; 1999 U.S. App. LEXIS 25532

November 19, 1998, Argued

October 14, 1999, Filed

PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. No.

88-cr--00173). District Court Judge: Honorable William

W. Caldwell.

DISPOSITION: Denied Roberson's request for autho- rization to proceed with his second motion.

LexisNexis(R) Headnotes

COUNSEL: WILLIAM A. BEHE, ERIC PFISTERER,

(ARGUED), OFFICE OF THE UNITED STATES ATTORNEY, Harrisburg, PA, Counsel for Appellee.

STEPHEN M. LATIMER, (ARGUED), LOUGHLIN & LATIMER, Hackensack, NJ, Counsel for Appellant.

JUDGES: Before: GREENBERG and ALITO, Circuit

Judges, and GODBOLD, Senior Circuit Judge. *

* The Honorable John C. Godbold, United States Senior Circuit Judge for the Court of Appeals for the Eleventh Circuit, sitting by designation.

OPINIONBY: ALITO

OPINION:

*410 OPINION OF THE COURT

ALITO, Circuit Judge:

The question presented for our review is whether ap- plying AEDPA's gatekeeping provisions to a 28 U.S.C.

§ 2255 motion filed after AEDPA's effective date would have an impermissible retroactive result if the movant filed his first § 2255 motion prior to AEDPA's enactment. We conclude that the application of AEDPA's gatekeep- ing provisions to Kevin Roberson's second § 2255 motion would **2 have no impermissible retroactive result, and

thus we hold that amended §§ 2244(b)(3)(A) and 2255 re- quire us to deny Roberson's request for authorization to proceed with his second motion.

On March 3, 1989, Kevin Roberson pleaded guilty to a felony information charging him with conspiracy to distribute crack cocaine, in violation of 21 U.S.C. §§

841(a)(1) and 846, distribution of crack cocaine, in vio- lation of 21 U.S.C. § 841(a)(1), and aiding or abetting the distribution of crack cocaine, in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2. The District Court sentenced Roberson to 30 years of imprisonment on both the con- spiracy and the distribution counts and ordered Roberson to serve the terms concurrently. By means of a judgment order, we affirmed Roberson's conviction on appeal and rejected his contention that the District Court lacked a reasonable factual basis to find by a preponderance of the evidence that his offense involved the distribution of at least 500 grams of cocaine base.

On July 17, 1991, Roberson, acting pro se, filed a motion under 28 U.S.C. § 2255 **3 to vacate, set aside, or correct his sentence. See App. at 10-38. One of his arguments was that the sentencing court "lacked suffi- cient facts upon which to fairly or reasonably conclude that the defendant was responsible for the distribution of

500 grams or more of 'crack', either individually or as a member of the conspiracy." App. at 24. On October 7,

1991, the District Court denied Roberson's § 2255 mo- tion, holding that Roberson could not raise this argument in his collateral attack because we previously had rejected the same argument on direct appeal. Appellant's Br. at Tab

6. Roberson appealed, App. at 183, and we dismissed his appeal on January 31, 1992, for failure to prosecute. App. at 184.

On April 24, 1996, the President signed into law the

Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which, among other things, revised the standards and procedures

194 F.3d 408, *410; 1999 U.S. App. LEXIS 25532, **3

Page 2

governing § 2255 petitions. Prior to AEDPA's enactment, federal courts denied second or successive § 2255 motions if the government could demonstrate that the motion con- stituted an abuse of the writ. See McCleskey v. Zant, 499

U.S. 467, 494, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991).

**4 Courts excused an abuse of the writ only if: (1) the applicant could establish cause and prejudice -- i.e., that "some objective factor external to the defense im- peded counsel's efforts" to raise the claim earlier and that

"actual prejudice resulted from the errors of which he complained," id. at 493-94 (internal quotation marks and citations omitted); or (2) the applicant could demonstrate that "a fundamental miscarriage of justice would result from a failure to entertain the claim," id.

*411 AEDPA, however, replaced the abuse-of--the writ doctrine articulated in McCleskey. Under AEDPA's new "gatekeeping" provisions, an applicant seeking to file a second or successive § 2255 motion must obtain from

"the appropriate court of appeals . . . an order authorizing the district court to consider the application," 28 U.S.C.A.

§§ 2244(b)(3)(A), 2255 (West Supp. 1999), and a court of appeals may grant such an order only if the motion contains:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no rea- sonable factfinder would have **5 found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously un- available.

28 U.S.C.A. § 2255.

On May 28, 1997, Roberson filed a second § 2255 motion in which he raised two grounds for relief. First, he claimed that the sentencing court erred by applying United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(c)'s enhancement for cocaine base because the government had failed to prove by a preponderance of the evidence that the controlled substance involved in his offense was

"crack," as opposed to some other form of cocaine base. App. at 9. Second, he claimed that his counsel at sentenc- ing and on direct appeal was constitutionally ineffective for failing to raise this argument. Id.

The District Court dismissed Roberson's petition, holding that it did not have authority under AEDPA to entertain Roberson's second § 2255 motion unless we is- sued an order authorizing it to do so. Appellant's Br. at

Tab 4. Roberson appealed. As we stated above, AEDPA's amendments require § 2255 movants to file a motion in the appropriate court **6 of appeals for an order authoriz- ing the district court to consider a second or successive ap- plication. See 28 U.S.C.A. § 2244(b)(3)(A). Recognizing that the application of AEDPA's new gatekeeping provi- sions to Roberson's second § 2255 motion might be imper- missibly retroactive, we requested that the parties address the following question: whether applying AEDPA's gate- keeping provisions to a second § 2255 motion, which the applicant filed after AEDPA's effective date, would pro- duce an impermissible retroactive result if the applicant filed his first § 2255 motion before AEDPA's enactment. n1

n1 Roberson also argues that if we preclude him from bringing his claims under § 2255, he should be permitted to bring them through a peti- tion for a writ of habeas corpus under 28 U.S.C. §

2241(c)(3). Appellant's Br. at 13. "Because there is no petition under § 2241 before us, we decline to address this contention." See Fed. R. App. P. 22(a); United States v. Ortiz, 136 F.3d 161, 168 (D.C. Cir.

1998).

**7 II.

We recently addressed a similar retroactivity question in In re Minarik, 166 F.3d 591 (3d Cir. 1999). In that case, the prisoner filed his first federal habeas petition under

28 U.S.C. § 2254 prior to AEDPA's passage, but filed his second § 2254 motion after AEDPA's effective date. We held that the application of AEDPA's gatekeeping provi- sions to Minarik's second petition had no impermissible retroactive effect. Id. at 608. In reaching this result, we were guided by two Supreme Court decisions: Landgraf v. USI Film Prods., 511 U.S. 244, 128 L. Ed. 2d 229, 114

S. Ct. 1483 (1994), and Lindh v. Murphy, 521 U.S. 320,

138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). We interpreted these cases as establishing the following three principles:

1. There is a strong presumption against ap- plying a statute in a manner that would attach

"new legal consequences" to events com- pleted before the statute's enactment, i.e., a manner that would "impair rights a party possessed *412 when he acted, increase a party's liability for past conduct, or impose new duties." Landgraf, 511 U.S. at 280, 114

S. Ct. 1483. **8

2. If Congress has focused on the issue, "has

194 F.3d 408, *412; 1999 U.S. App. LEXIS 25532, **8

Page 3

determined that the benefits of retroactiv- ity outweigh the potential for disruption or unfairness," and has provided unambiguous evidence of its conclusion by directing that retroactive effect be given, then, and only then, will the presumption be overridden.

3. Consistent with these principles, normal rules of statutory construction "may apply to remove . . . the possibility of retroactiv- ity." Nothing short of an unambiguous direc- tive, however, will justify giving a statute a retroactive effect. Thus, when normal rules of statutory construction indicate that a statute is intended to be applied in a manner involv- ing no retroactive effect, a Court need in- quire no further. On the other hand, if such construction suggests that a retroactive effect may have been intended, the traditional pre- sumption nevertheless bars retroactive appli- cation unless an unambiguous congressional directive is found.

In re Minarik, 166 F.3d at 597-98.

Informed by these principles, we turn to Roberson's argument that applying AEDPA's gatekeeping provisions to his second § 2255 motion is impermissibly retroactive. We begin our **9 analysis by noting that the gate- keeping provisions at issue here, as in Minarik, are part of AEDPA's chapter 153 amendments. See AEDPA, SS

105-06, Pub.L. No. 104-132, 110 Stat. 1220-21 (1996). Congress did not provide unambiguous evidence of its in- tent to apply AEDPA's chapter 153 amendments to cases in which a prisoner filed his first § 2255 or § 2254 motion prior to AEDPA's effective date. See Lindh, 521 U.S. at

327-29; Minarik, 166 F.3d at 599; United States v. Ortiz,

136 F.3d 161, 165 (D.C. Cir. 1998); In re Hanserd, 123

F.3d 922, 924 (6th Cir. 1997); Burris v. Parke, 95 F.3d

465, 468 (7th Cir. 1996) (en banc).

Furthermore, we held in Minarik that normal rules of statutory construction do not remove the possibility of retroactivity where a prisoner's first and second § 2254 petitions straddle AEDPA's effective date. See 166 F.3d at 598. We stated:

Lindh held that AEDPA's text, read in light of normal principles of statutory interpreta- tion, evidences a congressional intent that AEDPA's chapter 153 amendments should generally be applied to petitions, **10 like Minarik's, filed after April 24, 1996,

the effective date of the Act, but not to peti- tions, like Lindh's, filed before. This does not resolve the issue before us, however. The finding of congressional intent in Lindh was based on the drawing of a negative in- ference from Congress's express mandate that AEDPA's new rules regarding certain death penalty cases apply to pending cases. Because Congress had expressly provided for application to pending capital cases, but not to pending non-capital cases, it was a fair inference that Congress did not intend retro- spective application to the latter. Landgraf and Lindh make clear, however, that while such an inference is sufficient to eliminate the possibility of a retroactivity problem, it is not the kind of unambiguous statement that will justify overriding the judicial presump- tion against retroactivity in a case where a retroactivity problem exists.

Id. Because AEDPA's chapter 153 amendments include the gatekeeping provisions for § 2255 motions, we hold that our analysis in Minarik applies with equal force here. Having determined that Congress did not provide un- ambiguous evidence for the retroactive application **11 of the gatekeeping provisions and that normal rules of statutory construction do not remove the possibility of the gatekeeping provisions' retroactive application, "we now turn to a case-specific analysis of whether applying AEDPA's *413 gatekeeping provisions to Roberson's second § 2255 motion would have a genuine retroac- tive effect by 'attaching new legal consequences to events completed before AEDPA's enactment.'" Minarik, 166

F.3d at 599 (quoting Landgraf, 511 U.S. at 270). Minarik, which is binding on us, is quite clear that the relevant question is whether the application of the gatekeeping provisions would produce a genuine retroactive effect in the particular case at hand, not whether it would generally do so in a broader class of cases into which the case at hand falls. See 166 F.3d at 599 (emphasis added) ("If ap- plying AEDPA's habeas corpus amendments would pro- duce a genuine retroactive effect in Minarik's case, then Landgraf's default rule prohibits their application.'") Roberson argues that AEDPA's gatekeeping provi- sions attach "new legal consequences" to his first § 2255 motion. Appellant's Br. at 9-11. Specifically, **12 he claims that under pre-AEDPA law, he could have es- tablished cause and prejudice and that, consequently, a federal court would have entertained his second § 2255 motion. He concedes that he cannot satisfy AEDPA's new substantive standards, n2 see Appellant's Br. at 10-11, and he argues, therefore, that because AEDPA's gatekeeping

194 F.3d 408, *413; 1999 U.S. App. LEXIS 25532, **12

Page 4

provisions impair a right he possessed when he filed his first § 2255 motion, applying them in his case is imper- missibly retroactive. n3

n2 Roberson does not argue that the gatekeep- ing provisions' procedural requirement -- viz., that an applicant seeking to file a second or successive §

2255 motion in the district court first obtain autho- rization from the court of appeals -- is impermis- sibly retroactive. This argument is foreclosed by our decision in Minarik, 166 F.3d at 599 ("Section

2244(b)(3)(A) . . . is a change in procedural law which falls within the firmly established 'proce- dural change' category described in Landgraf that may be retrospectively applied.") (citing Landgraf,

511 U.S. at 275 ("Because rules of procedure reg- ulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.")).

**13

n3 Implicit in his concession is an admission that he also cannot establish that a fundamental miscarriage of justice would result from a failure to entertain his claims. One of § 2255's new substan- tive standards requires movants to proffer "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be suffi- cient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." 28 U.S.C.A. § 2255. Thus, Roberson acknowledges that the claims in his second § 2255 motion -- i.e., that the District Court erred by applying U.S.S.G. § 2D1.1(c)'s en- hanced sentencing provisions for crack and that his counsel was constitutionally ineffective for failing to raise this error -- do not constitute newly dis- covered evidence that is sufficient to establish by clear and convincing evidence that he is not guilty of the underlying offenses. In order to prove that his case implicates a fundamental miscarriage of justice, Roberson needs to establish that he was

"actually innocent." See Bousley v. United States,

523 U.S. 614, 118 S. Ct. 1604, 1611, 140 L. Ed.

2d 828 (1998); Murray v. Carrier, 477 U.S. 478,

496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). Because he concedes that he cannot meet § 2255's innocence standard, he likewise cannot satisfy the

"actual innocence" standard of pre-AEDPA law.

**14

As previously noted, Roberson raises two grounds for relief in his second § 2255 motion. First, he claims that the District Court erred by applying § 2D1.1(c)'s enhanced sentencing provisions for crack because the government failed to prove by a preponderance of the evidence that the controlled substance he pleaded guilty to distributing and conspiring to distribute was crack. See App. at 9. He con- tends that he pleaded guilty to distributing and conspiring to distribute a form of cocaine base that is not subject to §

2D1.1(c)'s enhanced sentencing provisions for crack. See id. Second, he claims that his attorney at sentencing and on direct appeal was constitutionally ineffective for failing to argue, based on § 2D1.1(c)'s distinction between crack and other forms of cocaine base, that Roberson should not have been sentenced under the enhanced sentencing pro- visions for crack. See id . We conclude that Roberson had cause under pre-AEDPA *414 law for not including these two grounds in his first § 2255 motion. We also con- clude, however, that he suffered no prejudice as a result of these alleged errors and thus that a district court would have denied his second § 2255 motion **15 under pre- AEDPA law. We therefore hold that AEDPA's gatekeep- ing provisions do not have an impermissible retroactive effect upon his second § 2255 motion.

III.

We find that Roberson had "cause" for not raising these two grounds in his first § 2255 motion, which he filed in July 1991, because the legal distinction be- tween "crack" and "cocaine base" for sentencing pur- poses did not exist until November 1, 1993, and because Roberson had no duty to anticipate changes in the law. See Sistrunk v. Vaughn, 96 F.3d 666, 670-71 (3d Cir. 1996); Government of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In 1993, the Sentencing Commission amended

§ 2D1.1(c) to include the following definition of cocaine base:

"Cocaine base," for the purposes of this guideline, means "crack." "Crack" is the street name for a form of cocaine base, usually prepared by processing cocaine hy- drochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.

U.S.S.G. § 2D1.1 (Note D to Drug Quantity Table). Prior to 1993, the Sentencing Guidelines had not defined the term "cocaine base" in § 2D1.1(c), and no court of appeals had **16 held that this term referred only to "crack" and not to other forms of cocaine base. See United States v. Rodriguez, 980 F.2d 1375, 1378 (11th Cir. 1992); United States v. Jones, 979 F.2d 317, 320 (3d Cir. 1992); United

194 F.3d 408, *414; 1999 U.S. App. LEXIS 25532, **16

Page 5

States v. Wheeler, 972 F.2d 927, 930 (8th Cir. 1992); United States v. Jackson, 968 F.2d 158, 162 (2d Cir. 1992); United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir.

1992) (per curiam); United States v. Shaw, 936 F.2d 412,

416 (9th Cir. 1991); n4 United States v. Turner, 928 F.2d

956, 960 (10th Cir. 1991); United States v. Levy, 904 F.2d

1026, 1033 (6th Cir. 1990); United States v. Metcalf, 898

F.2d 43, 46-47 (5th Cir. 1990); United States v. Brown,

859 F.2d 974, 976 (D.C. Cir. 1988).

n4 We are aware of the Sentencing Commission's statement that the Ninth Circuit held in United States v. Shaw, 936 F.2d 412 (9th Cir. 1991), that "cocaine base means crack." See U.S.S.G., App. C, Amend. 487 (1997). We dis- agree with the Sentencing Commission's interpre- tation of Shaw and note that in determining whether a claim is so novel that it constitutes cause to ex- cuse an abuse of the writ, we are not bound by the Sentencing Commission's reading of a circuit court's opinion. In Shaw, the defendant argued that he could not be sentenced under the guideline pro- vision applicable to offenses involving "cocaine base." The defendant maintained "the legal def- inition of 'cocaine base' is a cocaine compound containing a hydroxylion (OH-) such that it is a

'base,' as that term is used in chemistry." 936 F.2d at 414. "Because the government's expert did not say anything about the presence of a hydroxylion," the defendants argued that they could not be sen- tenced for cocaine base. Id. Rejecting this argu- ment, the court wrote: "We conclude that . . . the Commission must have intended the term 'cocaine base' to include 'crack,' or 'rock cocaine,'" and that the Commission did not intend "the term 'cocaine base' to be defined by the presence of a hydrox- ylion or by its testing basic rather acidic." Id. at 416

(emphasis added). Plainly, a holding that the term

"cocaine base" includes crack is not the same as a holding that "cocaine base means crack." U.S.S.G., App. C, Amend. 487 (1997).

**17

The Supreme Court has held that there may be cause for omitting a claim when it "'is so novel that its legal basis is not reasonably available to counsel.'" Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 1611, 140 L. Ed. 2d

828 (1998) (quoting Reed v. Ross, 468 U.S. 1, 16, 82 L. Ed.

2d 1, 104 S. Ct. 2901 (1984)). In Bousley, the petitioner pleaded guilty in 1990 to "using" a firearm in violation of

18 U.S.C. § 924(c) and later sought a writ of habeas corpus under 28 U.S.C. § 2241, which the District Court treated as a motion pursuant to 28 U.S.C. § 2255. Bousley, 118

S. Ct. at 1607. The District Court dismissed *415 the petitioner's § 2255 motion, and he appealed to the Court of Appeals for the Eighth Circuit. See id. While Bousley's appeal was pending, the Supreme Court decided Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116

S. Ct. 501 (1995), in which it held that a conviction for

"use" under § 924(c)(1) required the government to show not only "mere possession," but "active employment of the firearm" as well. Bailey, 516 U.S. at 144. **18 The Eighth Circuit subsequently affirmed the District Court's decision, rejecting Bousley's argument that Bailey should be applied retroactively. See Bousley, 118 S. Ct. at 1608. On appeal to the Supreme Court, Bousley argued, in an attempt to establish cause, that the legal basis for his claim was not "reasonably available to counsel at the time his plea was entered." Bousley, 118 S. Ct. at 1611 (in- ternal quotation marks and citation omitted). The Court rejected this argument, noting that it "was most surely not a novel one" and that "at the time of petitioner's plea, the Federal Reporters were replete with cases involving chal- lenges to the notion that 'use' is synonymous with mere

'possession.'" Id. (citations omitted). Here, however, the argument that cocaine base, as used in § 2D1.1, included only crack and excluded all other forms of cocaine base was novel at the time of Roberson's first § 2255 motion. The Federal Reporters, as we already noted, did not con- tain a single case reaching this conclusion. Accordingly, we hold that Roberson had cause for failing to raise in his first § 2255 motion the two grounds that he advanced in his **19 second § 2255 motion. n5

n5 Roberson contends that he has established

"cause" under McCleskey because he proceeded pro se in his first § 2255 motion. Appellant's Br. at 11 n.4. We disagree. In McCleskey, the Court held that the application of the cause and prejudice standard does not "imply that there is a constitu- tional right to counsel in federal habeas corpus."

499 U.S. at 495 (citing Pennsylvania v. Finley, 481

U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990

(1987)). Accordingly, the Court, in setting forth a single standard for "cause," made no distinction between pro se defendants and those who are rep- resented by counsel. See Cornman v. Armontrout,

959 F.2d 727, 729 (8th Cir. 1992) (stating that the requirement of cause in the abuse of the writ con- text "is not lessened by the fact that the petitioner may . . . have filed the initial habeas petition pro se"); Saahir v. Collins, 956 F.2d 115, 118 (5th Cir.

1992) ("Because a habeas petitioner is not con- stitutionally entitled to any legal representation in waging a collateral attack, the McCleskey 'knew or reasonably should have known' standard for cause

194 F.3d 408, *415; 1999 U.S. App. LEXIS 25532, **19

Page 6

applies irrespective of whether he was represented by counsel when he filed any previous petitions."); Rodriguez v. Maynard, 948 F.2d 684, 687 (10th Cir.

1991) ("We hold that, in abuse of the writ cases, the cause and prejudice standard applies to pro se pe- titioners just as it applies to petitioners represented by counsel."). We hold, therefore, that the fact that Roberson filed his first § 2255 petition pro se does not constitute cause in the abuse of the writ context.

**20

Although we find that Roberson could have estab- lished cause for the two claims he raised in his second

§ 2255 motion, we hold that he could not have demon- strated prejudice for either one. We will address each claim in turn.

Roberson claims that the government did not prove by a preponderance of the evidence that the controlled substance in question was "crack." Appellant's Br. at 10. Relying on our decision in United States v. James, 78

F.3d 851 (3d Cir. 1996), Roberson contends that he did not plead guilty to possession or distribution of crack. Appellant's Reply Br. at 3. Rather, he asserts that he pleaded guilty to possession or distribution of cocaine base. Id. In further support of his argument, Roberson notes that "there was no laboratory analysis of the sub- stances seized." Id. Roberson argues, based on this record, that the District Court erred in applying § 2D1.1(c)'s en- hanced sentencing provision for crack and that this error resulted in prejudice. We reject Roberson's argument for three reasons.

*416 First, he waived the argument that he pleaded guilty to distributing a form of cocaine base other than crack. "A waiver of rights must be knowing **21 and voluntary." James, 78 F.3d at 856 (citing United States v. Newman, 912 F.2d 1119, 1123 (9th Cir. 1990) (vol- untary plea requires real notice of the true nature of the charge)). In James, the defendant pleaded guilty to selling 57.4 grams of cocaine base. See 78 F.3d at 853. The District Court, pursuant to U.S.S.G. § 2D1.1(c), sen- tenced James under the enhanced sentencing provisions for crack. James argued that the District Court erred in applying § 2D1.1(c)'s enhancement for crack because he did not plead guilty to possession or distribution of crack. See id. at 856.

We found that the record, on the whole, supported his argument. There, the indictment charged James "with distribution and possession of a 'substance containing a detectable amount of cocaine base.' " Id. at 855. Additionally, the parties stipulated in the plea agreement

that "for purposes of determining . . . James' offense level under the Sentencing Guidelines, . . . the relevant quantity of cocaine base is 57.4 grams." Id. at 855-56. Finally, dur- ing the plea colloquy, James admitted that he distributed

"cocaine base," but made no such admission with respect to **22 "crack." Id. at 856. While we noted that the prosecutor referred to the controlled substance in question three times as "crack cocaine," n6 we held that, "without more, the causal reference to crack by the Government in the colloquy with the court over 'the relevant quantity of cocaine base in determining Mr. James's offense level' did not amount to a "knowing and voluntary admission that the cocaine base constituted crack." Id. at 856.

n6 During the plea colloquy, the prosecutor stated:

The parties agree that the relevant quantity of cocaine base in determin- ing Mr. James's offense level is 57.4 grams. That's the total net weight of the crack cocaine that was purchased in each of the three transactions that comprise Counts One, Two and Three.

. . .

Mr. James exchanged a plastic baggy that contained some suspected crack cocaine. That was sent to a lab, ana- lyzed, and was determined to be -- I believe the net weight was 22.0 grams of cocaine base or crack cocaine.

78 F.3d at 856 (emphasis in original).

**23

Here, the superseding information charged Roberson with distributing and conspiring to distribute "a substance containing cocaine base, known as 'crack' cocaine." App. at 178-79. Moreover, Roberson pleaded guilty in his plea agreement to "distribution of crack cocaine" and "con- spiracy to distribute crack cocaine." App. at 169. Thus, in contrast to James, Roberson's plea to distributing and conspiring to distribute "crack" was knowing and volun- tary.

Second, the government proved by a preponderance of the evidence that the substance in question was crack. We review for clear error a district court's factual deter- mination that the substance a defendant distributed was crack. See United States v. Dent, 149 F.3d 180, 189 (3d Cir. 1998); United States v. Roman, 121 F.3d 136, 140

194 F.3d 408, *416; 1999 U.S. App. LEXIS 25532, **23

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(3d Cir. 1997). "'Factual findings are clearly erroneous if the findings are unsupported by substantial evidence, lack adequate evidentiary support in the record, are against the clear weight of the evidence or where the district court has misapprehended the weight of the evidence.'" Roman,

121 F.3d at 140 (quoting Davin v. United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir. 1995) **24 (inter- nal quotations omitted)).

Here, unlike James, we note that the government, the witnesses, and even Roberson's trial attorney consis- tently referred to the controlled substance in question as crack cocaine. See, e.g., App. at 47 (testimony of Troy Smallwood); App. at *417 68-69 (testimony of Ryan Edward Palmer); App. at 74, 122-23 (testimony of Senia Patricia Lewis); App. at 88 (testimony of Jamie Herrell); App. at 82, 122 (defense counsel); App. at 142 (prose- cutor's comments to the District Court Judge). Because

§ 2D1.1 defines "crack" as "the street name for a form of cocaine base," see U.S.S.G. § 2D1.1(c), Note (D) to Drug Quantity Table, we find the witnesses' testimony es- pecially compelling. See United States v. Hall, 109 F.3d

1227, 1236 (7th Cir. 1997).

Moreover, we noted in Roman that "where a writ- ten plea agreement is entered , questions of notice and proof at sentencing could be greatly minimized by simply including language in the plea agreement by which a de- fendant acknowledges the identity of the drugs involved."

121 F.3d at 141 n.4. Here, as we stated above, Roberson pleaded guilty to distributing "crack." Therefore, **25 any question of proof we have concerning whether Roberson distributed crack is "greatly minimized."

Roberson also argues that the government failed to meet its burden of proof, at least in part, because it did not perform a laboratory analysis of the substance at is- sue. Appellant's Reply Br. at 3. We find this argument unpersuasive. It is not necessary for the government to perform a chemical analysis to prove that the substance at issue is crack, as opposed to another form of cocaine base. See Dent, 149 F.3d at 190; Roman, 121 F.3d at 141. Third, Roberson cannot establish prejudice because the 1993 amendment to § 2D1.1(c) ("Amendment 487") effected a substantive change in the law, and substantive amendments -- in contrast to clarifying amendments--are not given retroactive effect. See U.S.S.G. § 1B1.11(b)(2)

(1998); United States v. Marmolejos, 140 F.3d 488, 490

(3d Cir. 1998). As we stated in Marmolejos, "there is no bright-line test for determining whether an amendment to the Guidelines 'clarifies' the existing law; 'these categories

are unclear, and as is usually the case, there are factors supporting either **26 side.'" 140 F.3d at 491 (quoting United States v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993)). Among other factors, we have considered: (1) "whether,

as a matter of construction, the guideline and commen- tary in effect at that time is really consistent with the amended manual," United States v. Bertoli, 40 F.3d 1384,

1405 (3d Cir. 1994); and (2) whether the amendment re- solves an ambiguity in the guideline or commentary. See Marmolejos, 140 F.3d at 491-93.

Amendment 487 overruled prior constructions of §

2D1.1(c). Compare United States v. Jones, 979 F.2d 317,

320 (3d Cir. 1992) (holding that crack is a form of cocaine base), with U.S.S.G. App. C, Amend. 487 (1997) ("Under this amendment, forms of cocaine base other than crack .

. . will be treated as cocaine."). Because Amendment 487 overruled our prior construction of the guideline, we are inclined to hold that it effected a substantive change. See Bertoli, 40 F.3d at 1405.

This holding is supported by our conclusion that Amendment 487 did not resolve a pre-existing ambiguity in § 2D1.1(c)'s definition of "cocaine base." Prior **27 to Amendment 487's effective date, no court of appeals held that cocaine base meant only crack and excluded all other forms of cocaine base. Supra, at 9-10. Unlike our decision in Marmolejos, where we concluded that the Sentencing Commission's amendment resolved an am- biguous application note, see Marmolejos, 140 F.3d at

491, § 2D1.1(c) was not ambiguous prior to Amendment

487.

In Marmolejos, we examined Application Note 12 to

§ 2D1.1, which provided instructions for determining the quantity of controlled substances when the offense in- volved a negotiation to traffic such substances. 140 F.3d at 490. We noted that "the prior text of the application note provided no guidance as to what amount of drugs a court should consider in sentencing a defendant convicted of participating *418 in a completed transaction." Id. at 491. We held, therefore, that "the terms of the previ- ous application note were facially ambiguous; the note spoke only to uncompleted deals." Id. Here, the prior text of § 2D1.1(c) provided the courts with guidance as to what type of controlled substance should be subject to an enhanced sentence -- i.e., cocaine **28 base. We discern no facial ambiguity in the pre-1993 version of §

2D1.1(c) such that one could reasonably read the term cocaine base to mean only crack. Accordingly, we view Amendment 487 as a substantive amendment, which nar- rowed the category of controlled substances subject to enhanced penalties from all forms of cocaine base to a single type, crack.

As a final point, we note that our result is supported by the four other courts of appeals that have issued a pub- lished opinion addressing the retroactivity of Amendment

487. See United States v. Booker, 70 F.3d 488, 489-90 (7th

Cir. 1995); United States v. Kissick, 69 F.3d 1048, 1053

194 F.3d 408, *418; 1999 U.S. App. LEXIS 25532, **28

Page 8

(10th Cir. 1995); United States v. Samuels, 59 F.3d 526,

529 (5th Cir. 1995); United States v. Camacho, 40 F.3d

349, 354 (11th Cir. 1994).

We now turn to the second claim Roberson raised on appeal -- viz., that his attorney at sentencing and on di- rect appeal was constitutionally ineffective for failing to argue, based on the legal distinction between crack and other forms of cocaine base, that Roberson should not have been sentenced under § 2D1.1's enhanced sentenc- ing provisions. **29

To succeed on an ineffective assistance of counsel claim, Roberson must show that his attorney's perfor- mance fell outside "the wide range of professionally com- petent assistance," Strickland v. Washington, 466 U.S.

668, 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and that his attorney's deficient performance resulted in prejudice, which the Supreme Court has defined as "a rea- sonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been differ- ent." Id. at 694. In reviewing counsel's performance, we

"must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. In this case, Roberson essentially contends that his attorney's perfor- mance was deficient because he failed to argue, based on the legal distinction between crack and other forms of co- caine base, that Roberson should not have been sentenced under § 2D1.1(c)'s enhanced sentencing provisions for cocaine base. n7 App. at 9. We are unpersuaded.

n7 We note that when Roberson filed his first §

2255 motion pro se approximately two years after the District Court imposed its sentence, see App. at

23-24, Roberson did not distinguish between crack and cocaine base.

**30

The District Court sentenced Roberson in July 1989, App. at 185, and we denied his direct appeal in December

1989. As we have already observed, the Sentencing Commission did not create a legal distinction between crack and other forms of cocaine base until almost four years later, and prior to that time, no court of appeals had held that cocaine base, as defined in § 2D1.1(c), meant only crack and no other form of cocaine base. Supra, at 9-

10. Because "there is no general duty on the part of defense counsel to anticipate changes in the law," Sistrunk, 96 F.3d at 670-71 (quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)), we hold that coun- sel's failure to make an argument based on § 2D1.1(c)'s distinction between crack and cocaine base does not fall outside "the wide range of professionally competent as- sistance." And since we conclude that Roberson failed to show that his counsel's performance was deficient, we need not reach the issue of whether he was prejudiced by his attorney's representation. See Sistrunk, 96 F.3d at 673 n.8 (citing Strickland, 466 U.S. at 697 *419 ("There is **31 no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one.").

IV.

Accordingly, we conclude that a district court would have precluded Roberson from filing his second § 2255 motion under pre-AEDPA law. Therefore, we hold that applying AEDPA's gatekeeping provisions to his second

§ 2255 motion cannot work an impermissible retroactive effect.

Because Roberson's second § 2255 motion does not satisfy AEDPA's new substantive standards for filing a second motion, we deny Roberson's request for autho- rization to proceed with his second motion.

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