01-1733 Ashley v. U.S.

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“The district court dismissed Ashley’s petition as untimely without reaching a conclusion about whether Apprendi applies retroactively to collateral attacks. We therefore issue a certificate of appealability, for given Apprendi the underlying constitutional claim must be deemed ‘substantial’ for purposes of 28 U.S.C. sec.2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 483-85 (2000). We remand so that the retroactivity decision may be made, or at least considered. Perhaps it will prove to be unnecessary. The papers filed in this court do not reveal whether Ashley, who was convicted of conspiracy to distribute crack cocaine, would be entitled to relief under Apprendi even if that decision should be applied retroactively. Unless his sentence exceeds 20 years, or 30 years if he has a prior drug conviction, there is no constitutional problem in the first place. See Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000); United States v. Brough, 243 F.3d 1078 (7th Cir. 2001). Moreover, unless Ashley can justify his failure to raise the question on direct appeal by demonstrating cause and prejudice, the retroactivity of Apprendi does not matter. See United States v. Smith, 241 F.3d 546, rehearing en banc denied, 250 F.3d 1073 (7th Cir. 2001); Garrott v. United States, 238 F.3d 903 (7th Cir. 2001). Accord, Sanders, 247 F.3d at 144-46. But the resolution of these issues belongs to the district court, for they depend on facts that are not in the appellate record.”

Vacated and remanded.

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Easterbrook, J.