United States v. Michael L. Montalvo

PER CURIAM Opinion; Concurrence by Judge KOZINSKI.

*1054 OPINION

We consider whether the new rule announced in Richardson v. United States, 526 U.S. 813 , 119 S.Ct. 1707 , 143 L.Ed.2d 985 (1999), is retroactively applicable to criminal convictions that had become final by the time of the Supreme Court’s decision.

I

Montalvo was charged with one count of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 846 , and one count of engaging in a continuing criminal enterprise (CCE), 21 U.S.C. § 848 . The jury convicted him of the CCE count, and the trial judge sentenced him to life imprisonment. Conspiracy being a lesser included offense of a CCE violation, Rutledge v. United States, 517 U.S. 292, 300 , 116 S.Ct. 1241 , 134 L.Ed.2d 419 (1996), the jury did not render a verdict on the conspiracy charge.

After numerous unsuccessful appeals on direct review, Montalvo’s conviction became final in 1996 when the Supreme Court denied his petition for certiorari. See Griffith v. Kentucky, 479 U.S. 314 , 321 n. 6, 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987). Three years later, the Supreme Court decided Richardson v. United States, 526 U.S. 813 , 119 S.Ct. 1707 , 143 L.Ed.2d 985…

concurring.

I agree that Montalvo’s conviction should be affirmed, but on different grounds: I do not believe Richardson v. United States, 526 U.S. 813 , 119 S.Ct. 1707 , 143 L.Ed.2d 985 (1999), established a new substantive rule of criminal law; it is, rather, a rule of criminal procedure and therefore Teague-barred as to cases that had become final before Richardson was decided. While the majority’s approach is supported by every circuit that has considered the issue, I believe it is wrong as a matter of theory and further blurs the *1060 already fuzzy line between substance and procedure under Teague.

The confusion stems, in no small measure, from the shorthand labels “substantive” and “procedural.” Because Richardson involves interpretation of a criminal statute — with the Supreme Court deciding whether the phrase “series of violations” refers to one element or several elements — it might seem that the new rule must be “substantive.” After all, the Supreme Court has said that because Teag-ue’s anti-retroactivity principle “applies only to procedural rules[,] it is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by…

331 F.3d 1052 UNITED STATES of America, Plaintiff-Appellee, v. Michael L. MONTALVO, Defendant-Appellant. No. 01-17046. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 13, 2002. Filed June 9, 2003. David M. Porter, Assistant Federal Defender, Sacramento, California, argued for the defendant-appellant. Quin Denvir, Federal Defender, and Carolyn M. Wiggin, Assistant Federal Defender, Sacramento, CA, joined him on the briefs. Thomas E. Flynn, Assistant United States Attorney, Sacramento, CA, argued for the plaintiff-appellee. John K. Vincent, United States Attorney, Sacramento, CA, joined him on the brief. Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No. CR-89-00062-1-WBS. Before KOZINSKI and KLEINFELD, Circuit Judges, and REED, JR., * District Judge. PER CURIAM Opinion; Concurrence by Judge KOZINSKI. OPINION PER CURIAM. 1 We consider whether the new rule announced in Richardson v. United States, 526 U.S. 813 , 119 S.Ct. 1707 , 143 L.Ed.2d 985 (1999), is retroactively applicable to criminal convictions that had become final by the time of the Supreme Court's…