Juan Leonardo Paulino v. United States of America

*The Honorable Walter H. Rice, United States District Judge for the
Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0435P (6th Cir.)
File Name: 03a0435p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JUAN LEONARDO PAULINO,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 01-6424
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 89-00016—Karl S. Forester, Chief District Judge.
Argued: August 8, 2003
Decided and Filed: December 10, 2003
Before: BOGGS, Chief Judge; SILER, Circuit Judges;
RICE, District Judge.*
_________________
COUNSEL
ARGUED: Pearson N. Bownas, JONES, DAY, REAVIS &
POGUE, Cleveland, Ohio, for Appellant. Frances E. Catron,
2 Paulino v. United States No. 01-6424
ASSISTANT UNITED STATES ATTORNEY, Lexington,
Kentucky, for Appellee. ON BRIEF: Louis A. Chaiten,
JONES, DAY, REAVIS & POGUE, Cleveland, Ohio, for
Appellant. Frances E. Catron, Jane E. Graham, ASSISTANT
UNITED STATES ATTORNEY, Lexington, Kentucky, for
Appellee.
_________________
OPINION
_________________
WALTER H. RICE, District Judge. In this case, Appellant
asks us to reverse the dismissal of his successive motion to
vacate, set aside or correct sentence, filed pursuant to 28
U.S.C. § 2255. The district court had jurisdiction under 28
U.S.C. § 2255, as authorized by this Court. See 28 U.S.C.
§§ 2244(b)(3)(A) & 2255. Our jurisdiction exists under 28
U.S.C. §§ 2253 & 2255. For the reasons which follow, the
district court’s order dismissing Appellant’s successive
motion will be affirmed.
I. Background
In December, 1989, Appellant was convicted by a jury of
conspiracy, tax evasion, and conducting a continuing criminal
enterprise (“CCE”). The latter offense requires a showing
that the defendant committed a drug violation that was part of
a continuing series of federal criminal drug violations. See 21
U.S.C. § 848(c). He was sentenced to 265 months of
imprisonment for conspiracy and the CCE, and 60 months for
tax evasion, the sentences to run concurrently. In 1991, this
Court vacated Appellant’s conspiracy conviction, but
otherwise affirmed. See United States v. Paulino, 935 F.2d
739 (6th Cir.), cert. denied, 502 U.S. 914 (1991). In 1996,
Appellant filed his first § 2255 motion, arguing for the first
time that the trial court erred by failing to instruct the jury that
it must agree unanimously on the predicate offenses that made
up the “continuing series” of drug violations. The district

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No. 01-6424 Paulino v. United States 3
court overruled his motion, adopting the magistrate judge’s
recommendation that Appellant had procedurally defaulted on
the instruction issue, regardless of the merits of his argument,
and had failed to establish cause and prejudice for the default.
(J.A. at 130-137, 151-152.) We affirmed in an order filed on
April 30, 1999. See 1999 WL 282672.
In Richardson v. United States, 526 U.S. 813, 824 (1999),
decided a month after we affirmed the denial of Appellant’s
first § 2255 motion, the United States Supreme Court
“determined that a jury must unanimously agree not only that
the defendant committed some ‘continuing series of
violations,’ but also about which specific ‘violations’ make
up that ‘continuing series.’” Murr v. United States, 200 F.3d
895, 905 (6th Cir. 2000). In Murr, we reviewed Richardson
and held that the Supreme Court announced in that case a new
rule of substantive statutory law which applied retroactively
for purposes of collaterally attacking a judgment or sentence.
200 F.3d at 905-06. Following Murr, Appellant herein
moved this Court to authorize the district court to consider a
successive § 2255 motion, see 28 U.S.C. § 2255 (“A second
or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals . . . .”),
contending therein that Richardson announced a new rule of
constitutional law which should be applied retroactively with
regard to his case. A panel of this Court granted the motion
in March of 2000, finding that he had made a prima facie
showing that his proposed ground for relief presented a new
rule of constitutional law that was previously unavailable.
(J.A. at 163.) Following that order, he filed the motion with
the district court that is now the subject of this appeal. In
denying him the relief he sought, the district court adopted the
report and recommendations of the magistrate judge, who had
concluded that any error that did exist was harmless. (J.A. at
197, 219.) This appeal followed.
4 Paulino v. United States No. 01-6424
II. Analysis
In reviewing a district court’s denial of a petition filed
under § 2255, a court of appeals reviews findings of fact for
clear error and conclusions of law de novo. See Dunlap v.
United States, 250 F.3d 1001, 1004 (6th Cir.), cert. denied,
534 U.S. 1057 (2001).
Permission to file a successive § 2255 motion may be
granted by a panel of a court of appeals if the movant makes
a prima facie case that it raises “a new rule . . . .” 28 U.S.C.
§§ 2244(b)(2)(A) & 2255; Tyler v. Cain, 533 U.S. 656, 662
(2001). Before “a panel of the appropriate court of appeals,”
a movant need only make a prima facie case that he can
satisfy the above-stated requirement. 28 U.S.C.
§ 2244(b)(3)(C). The court’s decision to certify or not certify
a motion to file a successive motion is not appealable and
cannot be the subject of a petition for rehearing or a writ of
certiorari. Id. §2244(b)(3)(E). Upon review of the merits of
the basis for the successive motion, the district court is
required to dismiss the motion “unless the applicant shows
that the claim satisfies the requirements of this section.” Id.
§ 2244(b)(4).
The parties are now in agreement that the basis for our
decision to certify Appellant’s successive motion for
consideration by the district court was not, despite
Appellant’s representations in his motion for certification,
based on “a new rule of constitutional law” at all.
(Appellant’s Br. at 20-22; Appellee’s Br. at 15, 17 n.2.)
Appellant acknowledges this point because he perceives
himself to be on the horns of a dilemma, owing in no small
part to the Supreme Court’s holding in Tyler, 533 U.S. at 662
(decided after this Court’s certification of Appellant’s
successive motion), that it and only it can say when a newly
recognized rule of constitutional law is to apply retroactively
for purposes of allowing a sentenced defendant to bring a
successive collateral attack on his or her sentence.
(Appellant’s Br. at 20-22.) Recognizing further that the

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No. 01-6424 Paulino v. United States 5
1There would be a constitutional issue if there were an allegation that
the jury did not need to be unanimous in its verdict. However, as both the
Governm ent and Appellant point out in their respective briefs, Richardson
was not about whether the jury had to be unanimous in finding a
continuing criminal enterprise, as no one argued that it did not have to be
unanimous. The issue, rather, was whether, under 21 U.S.C. § 848(c), the
jury had to be unanimous with respect to the existence of a continuing
series of violations generally, or unanimous with respect to the existence
of each predicate violation more specifically. As the majority and
dissenting opinions in Richardson amply show , the case was one of pure
statutory interpretation. Acco rd Mu rr, 200 F.3d at 906 (“Richardson
involves the substantive construction of a criminal statute.”).
2The Court need not, and does not, pass on the implications of the
error because, for the reasons stated in this opinion, 28 U.S.C. § 2255
does not permit a defendant to base a second or successive motion on
Richardson Court did not state that the statutory clarification
it made in that case was to apply retroactively, such that,
under Tyler, the rule announced in Richardson could not be
applied to his case retroactively, despite our statement in
Murr that it should, Appellant turns about face from the
argument he proffered when he moved this Court to certify
his successive motion, and argues that Richardson was not a
constitutional case at all, but was, rather, a case about
substantive statutory interpretation. (Id. at 20-21.)
Supposedly, this argument advances his cause because, of
course, the general rule of statutory interpretation is that novel
interpretations of substantive statutes always apply
retroactively, with the understanding that a statute means
what it says from the date of its enactment. See, e.g., Rivers
v. Roadway Express, 511 U.S. 298, 312-13 (1994); Murr, 200
F.3d at 905-06. Thus, Appellant argues, Murr remains good
law after all, insofar as it held that Richardson is to apply
retroactively, and that, under Richardson, the district court’s
instructions were erroneous as a matter of substantive, not
constitutional, law.1
In light of Richardson, Appellant is correct that the district
court’s jury instructions were erroneous.2 Nevertheless, relief
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non-constitutional errors. See Tyler, 533 U.S. at 662 (pointing out that a
new rule of constitutional law is a prerequisite “to obtaining relief in a
second or successive” motion). O bviously, in crafting § 2255 as it is now
written, Congress did no t find that new rules of statutory law justified
successive motio ns, a fact which no d oubt leaves the merits of many first
§ 2255 motions to timing and chance: a defend ant who files his first
motion prior to the recognition of a new rule of statutory law will not be
able to take advantage of such on a successive motion. In crafting § 2255
as it did, C ongress was obviously interested in the principle of finality.
under § 2255 is not available at this juncture. 28 U.S.C.
§ 2244(b)(4) states: “A district court shall dismiss any claim
presented in a second or successive application that the court
of appeals has authorized to be filed unless the applicant
shows that the claim satisfies the requirements of this
section.” Because Appellant not only acknowledges, but
outright emphasizes, that “the requirements” for his obtaining
relief in a successive § 2255 motion, to wit: the existence of
a new rule of constitutional law, are not met in this case
(Appellant’s Br. at 20-22), the district court’s order
dismissing his motion will be affirmed.
Appellant contends in his brief that it makes “no
difference” that “Richardson may not be best seen as
announcing a new rule of constitutional law” (id. at 22), and
his counsel reiterated the contention on several occasions at
oral argument. According to Appellant, the requirement that
“a panel of the appropriate court of appeals” certify a
successive motion before it can be entertained by the district
court is a procedural rule that serves a gate-keeping function,
nothing more. Appellant argues that the rule does not have
jurisdictional implications, and, furthermore, that once a court
of appeals has certified a successive motion, its decision
should not be reconsidered. Simply put, Appellant is trying
to have it both ways: arguing for purposes of having his
successive motion certified that Richardson announced a new
rule of “constitutional law,” while arguing for purposes of
getting around Tyler and having Richardson applied
retroactively that Richardson announced only a new rule of

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No. 01-6424 Paulino v. United States 7
3This pane l is satisfied that the issue is no t jurisdictional. It will
frequently be the case that a successive motion, once certified by the
app ropriate appellate co urt, will fail on its merits before the district co urt.
Just as a pre-trial, on-the-merits dismissal of a civil comp laint does not
imply a lack of subject matter jurisdiction in the first instance, the fact that
a defendant moving for a successive § 2255 mo tion ultima tely fails to
prove the merits of his motion after having first satisfied his prima facie
burden before the co urt of appea ls does not imply a retroactive lack of
subje ct matter jurisdiction.
4W e note also that our statem ent in Mu rr, that the rule announced in
Richardson applies retroactively, continues to b e sound. As noted , in
Tyler, the Supreme Court held that only it can say when a new rule of
constitutional law is to app ly retroactively for p urpo ses of raising a
successive collateral attack on a sentence or jud gment. Tyler does not
abrogate Mu rr, however, because, as noted herein and acknowledged by
both parties, Richardson did not announce a new rule of constitutional
law. Therefore, Mu rr’s interpre tation of Richardson is not inconsistent
with Tyler because Richardson, insofar as it announced a new rule of
statutory law, will never be of assistance to a de fendant seeking relief via
a successive § 225 5 mo tion, the success of which turns on a new rule of
constitutional law.
Additiona lly, Mu rr discussed the retroactive application of a new rule
of substantive law for purposes of co llaterally attacking a jury instruction
via a first § 2255 motion. This distinction is also crucial, namely because
a first motion, unlike a successive motion, need not be based on a new
rule of constitutional law. Tyler, of course, discussed the retroactive
“statutory law.” The Court need not fully explore the merits
of Appellant’s “gate-keeping” proposition because it is beside
the point. This Court need not (and does not) find
Appellant’s earlier mischaracterization of Richardson
jurisdictional in nature, or reconsider its decision to certify his
successive § 2255 motion,3 for it is enough to note that once
his motion came before the district court, his argument for
relief proved to be without merit. Regardless of Appellant’s
burden before this Court to obtain a certificate of
authorization for the district court to entertain his successive
§ 2255 motion, the existence of a new rule of constitutional
law is a “prerequisite[] to obtaining relief in a second or
successive motion” before the district court. Tyler, 533 U.S.
at 662.4 Because he cannot satisfy that prerequisite, the
8 Paulino v. United States No. 01-6424
application of a new rule of constitutional law in the context of
collaterally attacking a sentence or judgment via a second or successive
motion. Thus, because (1) Richardson only announced a new rule of
statutory law, and, in any eve nt, (2) Mu rr’s interpre tation of Richardson
was made in the context of a first § 225 5 mo tion, Mu rr remains good law.
district court was correct in dismissing his motion. See id. at
661 n.3 (pointing out that even after the court of appeals has
certified a successive motion on the basis that the movant has
made a prima facie showing that the statutory standard has
been satisfied, dismissal is appropriate in the district court if
the merits of the successive motion do not ultimately satisfy
that same statutory standard).
Appellant argues in the alternative that his motion should
be treated as a petition for a writ of habeas corpus, under 28
U.S.C. § 2241. (Appellant’s Br. at 25-29.) This argument
was only vaguely elaborated upon at oral argument, but it is
readily dismissed. 28 U.S.C. § 2255 contains a savings clause
which allows an incarcerated individual to apply for a writ of
habeas corpus under § 2241 if his remedy under § 2255
appears “inadequate or ineffective to test the legality of the
detention.” In theory, the fact that Richardson did not
announce a new rule of constitutional law, such that
Appellant is not entitled to relief under a successive § 2255
motion, might have entitled Appellant to relief under § 2241.
However, the circuit courts, including our own, have
interpreted § 2241 as permitting relief thereunder, in lieu of
relief under § 2255, only in those instances where the
individual can make a showing of actual innocence. See
Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003).
Appellant has made no such showing in this case. Actual
innocence means factual innocence. See Bousley v. United
States, 523 U.S. 614, 623 (1998). Appellant makes no such
argument that he is actually innocent of conducting a CCE,
and the record, as explored by the magistrate judge and the
district court below, amply demonstrates that he would not be
able to do so.

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No. 01-6424 Paulino v. United States 9
Appellant’s reliance on Bailey v. United States, 516 U.S.
137 (1995), is misplaced. In Bailey, the Supreme Court held
that the term “uses,” as used in 18 U.S.C. § 924(c)(1), which
enhances the sentence of any defendant who “uses” a weapon
in the commission of a federal crime of violence or drug
trafficking, connotes “active employment.” 516 U.S. at 144.
In other words, the Court held that the Government, in
prosecuting a defendant under § 924(c)(1), must prove more
than that the defendant merely possessed a weapon. Id.
Because Bailey abrogated the overly broad definition of
“uses” as it had then been interpreted by several of the circuit
courts, see 516 U.S. at 142, this Court and other circuit courts
subsequently recognized that defendants who had previously
been sentenced pursuant to 18 U.S.C. § 924(c)(1), on the
basis of the erroneous definition, could attack their sentences
collaterally in light of Bailey, see In re Hanserd, 123 F.3d
922, 928 (6th Cir. 1997), and that they could even resort to 28
U.S.C. § 2241 to do so if relief under § 2255 was “inadequate
or ineffective.” See id. at 929-30.
The shortcoming to Appellant’s reliance on Bailey is that
the new rule announced in Richardson does not have the same
effect as that announced in Bailey. In the latter, the rule
announced had the effect of rendering many previously
sentenced defendants “actually innocent” of the sentencing
factor on which their sentences had been based, to wit: it
demonstrated that they had not “used” a weapon in the
manner contemplated by Congress. The effect of Richardson
is entirely different. Richardson does not render defendants
who were convicted of conducting a CCE “not guilty,” or
“actually innocent,” merely because the trial court gave
instructions that did not comply with the rule announced
therein (as was the case, it appears, at Appellant’s trial); at
most, it requires a new trial. Had Appellant not defaulted on
this issue at trial and on direct appeal, he might have found
the relief he was seeking when he raised it in his first § 2255
motion. Be that as it may, he is not entitled to relief on his
successive motion for the reasons stated above, and, returning
to the immediate point, he is not entitled to relief under
10 Paulino v. United States No. 01-6424
§ 2241 because he has not made a showing that he was
actually innocent, a requirement that was not discharged by
Bailey or its progeny.
Accordingly, even if Appellant’s motion were construed as
a petition for habeas corpus, 28 U.S.C. § 2241, the order of
the district court denying him relief would have to be
affirmed.
III. Conclusion
The order of the district court is AFFIRMED.

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