Campbell v. United States
Campbell v. United States
Opinion of the Court
ORDER
In October 1995, Campbell pled guilty to conspiracy to distribute an unspecified amount of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. He was later sentenced under 21 U.S.C. § 841(b)(1)(A) to 245 months’ imprisonment — five months greater than the maximum sentence authorized by the statutory provisions under which he was charged. This court affirmed his conviction on direct appeal. See United States v. Campbell, 182 F.3d 923, 1999 U.S. LEXIS 9151 (7th Cir. 1999) (unpublished disposition).
Campbell filed a collateral attack on May 8, 2000, arguing, among other things,
1. Whether United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) precludes a defendant who pled guilty from raising an Apprendi issue on collateral review;
2. Whether Campbell’s sentence of 245 months is lawful in light of Apprendi; and
3. Whether Apprendi applies retroactively to first time habeas petitions.
Our resolution of the first issue is simple. Campbell’s plea agreement expressly preserved his right to appeal his sentence. Therefore the general rule established by Broce, i.e. that a voluntary and intelligent guilty plea may not be collaterally attacked, does not apply.
We cannot decide the second issue — whether his sentence is unlawful in light of Apprendi — because Campbell procedurally defaulted this claim by failing to raise it in his direct appeal. A procedurally defaulted claim may not be raised on habeas review unless the defendant can demonstrate “cause” and actual “prejudice,” or that he is actually innocent. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Campbell seeks to excuse his default by showing, first, that the rule established by Apprendi was so novel (as compared to the prevailing authority in the circuit courts at that time) that his counsel was prevented from making an Apprendilike challenge on direct appeal. This argument has been rejected by this court on several occasions. See Valenzuela v. United States, 261 F.3d 694, 700 n. 2 (7th Cir. 2001); United States v. Smith, 241 F.3d 546, 548-49 (7th Cir. 2001); Garrott v. United States, 238 F.3d 903, 905 (7th Cir. 2001).
Furthermore, Campbell cannot show that he was prejudiced by the district court’s application of § 841(b)(1)(A). At the plea hearing, the government claimed that, if forced to go to trial, it would present evidence that one of his eo-con-
Finally, because Campbell cannot justify his failure to raise his Apprendi challenge on direct appeal, we need not decide the retroactivity of Apprendi.
Accordingly, we AFFIRM his sentence.
. To date, three other circuits have agreed with our analysis. See McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 145-46 (4th Cir. 2001).
Reference
- Full Case Name
- Douglas E. CAMPBELL v. United States
- Status
- Published