United States v. Bailey, 286 F.3d 1219 (10th Cir. 2002). · Go Syfert
United States v. Bailey, 286 F.3d 1219 (10th Cir. 2002). Cases Citing This Book View Copy Cite
22 citation events (22 in the last 25 years) across 3 distinct courts.
Strongest positive: Bryce Franklin v. Ronald Martinez and Hector Balderas, Attorney General of the State of New Mexico (nmd, 2025-10-16)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) Bryce Franklin v. Ronald Martinez and Hector Balderas, Attorney General of the State of New Mexico
D.N.M. · 2025 · confidence medium
This requires a showing “not merely that the errors at ... trial created a possibility of prejudice, but that they worked to [defendant’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir. 2002) (quoting Frady, 456 U.S. at 170 ). 11 Petitioner cannot show actual prejudice from failing to raise his double jeopardy claim because the prison’s alleged failure to follow its handbook is not a per se constitutional violation.
discussed Cited as authority (rule) Franklin v. Martinez (2×) also: Cited "see"
D.N.M. · 2025 · confidence medium
This requires a showing “not merely that the errors at ... trial created a possibility of prejudice, but that they worked to [defendant’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir. 2002) (quoting Frady, 456 U.S. at 170 ). 7 Petitioner bases his bias claim on Hearing Officer Quigley’s January 28, 2022 testimony in Case No. 20-cv-576.
discussed Cited as authority (rule) Waldron v. United States (2×) also: Cited "see"
D. Utah · 2019 · confidence medium
Prejudice is established if the alleged errors are shown to have caused “actual and substantial disadvantage, infecting [petitioner’s] entire trial with error of constitutional dimensions.” United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir. 2002) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
discussed Cited as authority (rule) United States v. Collins (2×)
10th Cir. · 2004 · confidence medium
Fed.R.Crim.P. 52(b); United States v. Bailey, 286 F.3d 1219, 1222 (10th Cir.), cert. denied, 537 U.S. 877 , 123 S.Ct. 293 , 154 L.Ed.2d 131 (2002).
discussed Cited as authority (rule) United States v. Gary Allen Lott, United States of America v. Johnny Marton Lott, AKA Johnny Martin Lott
10th Cir. · 2002 · confidence medium
See, e.g., United States v. McLean, 287 F.3d 127, 137 (2d Cir.2002) (holding that Apprendi error did not affect substantial rights where, “in the absence of the error, the application of section 5G1.2(d) of the Guidelines would have resulted in the same term of imprisonment”); United States v. Bailey, 286 F.3d 1219, 1222 (10th Cir.2002) (same); United States v. Outen, 286 F.3d 622, 640 (2d Cir.2002) (same); Buckland, 277 F.3d at 1184-86 (9th Cir.2002) (en banc) (same); Price, 265 F.3d at 1109 (10th Cir.2001) (same); United States v. Angle, 254 F.3d 514, 518 (4th Cir.2001) (en banc) (same);…
discussed Cited as authority (rule) United States v. Lott
10th Cir. · 2002 · confidence medium
See, e.g., United States v. McLean, 287 F.3d 127, 137 (2d Cir. 2002) (holding that Apprendi error did not affect substantial rights where, “in the absence of the error, the application of section 5G1.2(d) of the Guidelines would have resulted in the same term of imprisonment”); United - 20 - States v. Bailey, 286 F.3d 1219, 1222 (10th Cir. 2002) (same); United States v. Outen, 286 F.3d 622, 640 (2d Cir. 2002) (same); Buckland, 277 F.3d at 1184-86 (9th Cir. 2002) (en banc) (same); Price, 265 F.3d at 1109 (10th Cir. 2001) (same); United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en …
discussed Cited as authority (rule) United States v. Avery
10th Cir. · 2002 · confidence medium
United States v. Bailey, 286 F.3d 1219, 1222 (10th Cir.2002); United States v. Cernobyl, 255 F.3d 1215, 1218 (10th Cir.2001); United States v. Heckard, 238 F.3d 1222, 1235 (10th Cir.2001); Hishaw, 235 F.3d at 574 .
discussed Cited as authority (rule) United States v. Green (2×) also: Cited "see"
10th Cir. · 2002 · confidence medium
As a result, § 5G1.2(d) requires the district court to run Defendant’s sentences on each count consecutively (“stack” the sentences) to the extent necessary to produce a combined sentence equal to life imprisonment. 7 United States v. Bailey, 286 F.3d 1219, 1222 (10th Cir.2002); United States v. Price, 265 F.3d 1097, 1109 (10th Cir.2001).
discussed Cited as authority (rule) United States v. Trabanino
10th Cir. · 2002 · confidence medium
An appellate court should exercise its discretion to correct plain error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Jones v. United States, 527 U.S. 373, 389 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999) (quoting United States v. Olano, 507 U.S. 725, 732 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993)); United States v. Bailey, 286 F.3d 1219, 1222 (10th Cir.2002).
discussed Cited "see" United States v. Hartman
10th Cir. · 2012 · signal: see · confidence high
See United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir.2002). *439 As to Appellant’s ineffective assistance of counsel claim, he alleged three specific instances of ineffective assistance of counsel: (1) counsel failed to retrieve discovery and investigation reports from prior, disbarred counsel; (2) counsel failed to have prior counsel held in contempt after he did not respond to a subpoena for the discovery materials; and (3) counsel improperly advised Appellant concerning the consequences of not accepting a plea bargain.
discussed Cited "see" United States v. McCalister (2×)
10th Cir. · 2006 · signal: see · confidence high
See United States v. Bailey, 286 F.3d 1219, 1221 (10th Cir.2002).
discussed Cited "see" Price v. United States
10th Cir. · 2004 · signal: see · confidence high
See United States v. Bailey, 286 F.3d 1219, 1222-23 (10th Cir.2002) (holding that, since sentencing error due to failure to instruct jury on specific drug quantity did not affect defendant’s substantial rights under plain-error analysis, defendant also could not establish prejudice sufficient to overcome procedural default); see also United States v. Cook, 45 F.3d 388, 395 (10th Cir.1995) (holding defendant who established prejudice under Strickland also established prejudice sufficient to excuse procedural default).
cited Cited "see" United States v. Humphrey
10th Cir. · 2004 · signal: see · confidence high
See United States v. Bailey, 286 F.3d 1219, 1222 (10th Cir.2002), cert. denied, 537 U.S. 877 , 123 S.Ct. 293 , 154 L.Ed.2d 131 (2002).
cited Cited "see" United States v. Fredette
10th Cir. · 2003 · signal: see · confidence high
See United States v. Bailey, 286 F.3d 1219, 1222 (10th Cir.2002).
Retrieving the full opinion text from the archive…
UNITED STATES, Plaintiff-Appellee,
v.
Teddy Leroy BAILEY, Defendant-Appellant
00-6268.
Court of Appeals for the Tenth Circuit.
Apr 18, 2002.
286 F.3d 1219
2002 U.S. App. LEXIS 7155
2002 WL 595111
Michael A. Rotker, Attorney, United States Department of Justice, Washington, D.C., (Robert G. McCampbell, United States Attorney, M. Jay Farber, Assistant United States Attorney, with him on the briefs) for Plaintiff-Appellee., Chris Eulberg, Oklahoma City, OK, for Defendant-Appellant.
Lucero, Brorby, Rogers.
Cited by 15 opinions  |  Published
LUCERO, Circuit Judge.

In Apprendi v. New Jersey, the Supreme Court announced a new rule of constitutional law: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Appellant Teddy Leroy Bailey, for the first time on appeal from the district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, raises a claim under Apprendi. He neither objected to nor directly appealed the trial court’s Apprendi error, however, and consequently he may not obtain collateral relief unless he demonstrates “cause” excusing his procedural default and “actual prejudice” resulting from the error. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). We conclude appellant falls short of demonstrating actual prejudice and dismiss his appeal.

I

Bailey was convicted in 1997 of one count of conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C. § 846, three counts of possession with intent to distribute methamphetamine, id. § 841(a)(1), two counts of distribution of methamphetamine, id., and three counts of money laundering, 18 U.S.C. §§ 1956(a)(l)(B)(i), 1957. The district court failed to submit the quantity of drugs attributable to Bailey for the jury’s determination. Bailey did not object to the instructions on this basis. During sentencing, the district court proceeded to attribute to him possession of thirty-three pounds of methamphetamine and sentenced him accordingly, Bailey was sentenced to serve 286 months in prison for the drug convictions; 240 months for two of the money laundering convictions; and 120 months for the final money laundering conviction, all of these terms to run concurrently.

Bailey did not appeal the district court’s failure to submit the drug quantity question to the jury. Instead, he challenged various evidentiary rulings as well as the sufficiency of the evidence supporting the district court’s drug type and quantity findings. On November 20, 1998, this Court affirmed Bailey’s convictions and sentences, United States v. Baker, 166 F.3d 348, 1998 WL 808392, at *9 (10th Cir. Nov.20, 1998), and on March 22, 1999, the Supreme Court denied certiorari, Bailey v. United States, 526 U.S. 1032, 119 S.Ct. 1283, 143 L.Ed.2d 376 (1999).

One year and one day after the denial of certiorari, appellant filed his § 2255 motion, seeking relief on the sole ground of ineffective assistance of counsel. By all indications, the motion was untimely. See 28 U.S.C. § 2255 para. 6 (providing, with some exceptions, that a one-year period of limitation to filing § 2255 motions shall run from the date on which the challenged conviction becomes final). Nevertheless, the government’s court-ordered response neglected the timing issue—even though it was ordered to address it—and argued simply that “[sjince the defendant has not supported his claim of ineffective assistance of counsel with any facts or supporting law, the government respectfully requests that his motion be dismissed with[*1222] prejudice.” (R. Doc. 157 at 2.) The district court dismissed appellant’s motion for precisely that reason and declined to issue a certificate of appealability.

This Court, too, declined to issue a certificate of appealability on appellant’s ineffective assistance of counsel claim. However, appellant’s opening brief raised a new claim arising under Apprendi, which was decided after the district court’s dismissal of appellant’s § 2255 motion. Pursuant to 28 U.S.C. § 2253(c), we issued a certificate of appealability to determine, inter alia, whether appellant “procedurally defaulted his Apprendi claim by failing to raise it at trial and on direct appeal, and if so, [whether he can] show cause and actual prejudice to excuse such a default.” United States v. Bailey, No. 00-6268, order at 3-4 (10th Cir. Apr. 25, 2001). [1]

II

Appellant defaulted his Apprendi claim by failing to object to it at trial. Thus, if he had raised the issue on direct appeal, our review would have been for plain error. United States v. Keeling, 235 F.3d 533, 538 (10th Cir.2000), cert. denied, 533 U.S. 940, 121 S.Ct. 2575, 150 L.Ed.2d 738 (2001). “Under that review, relief is not warranted unless there has been (1) error, (2) that is plain, and (3) affects substantial rights.... An appellate court should exercise its discretion to correct plain error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Under our precedent, the trial court’s Apprendi error is plain. See Keeling, 235 F.3d at 539 (“A jury instruction which omitted quantity as an element in these circumstances is actual error that is now plain and obvious.”). The court should have sentenced appellant under 21 U.S.C. § 841(b)(1)(C), which provides for a maximum sentence of twenty years where no quantity of methamphetamine is specified. See United States v. Lujan, 268 F.3d 965, 968-67 (10th Cir.2001). Nevertheless, the trial court’s Apprendi error would not constitute reversible plain error because appellant’s substantial rights were not affected. Section 5G1.2(d) of the Sentencing Guidelines Manual provides:

If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.

We have held that U.S.S.G. § 5G1.2(d) is a mandatory provision because it speaks “in terms of ‘shall’ rather than ‘may.’” United States v. Price, 265 F.3d 1097, 1109 (10th Cir.2001). [2] Therefore, absent its Apprendi error, the district court nevertheless would have been required to impose twenty-year terms for each of appellant’s drug convictions and to run the sentences consecutively to the extent necessary to produce a combined sentence equal to 286 months, the same effective sentence appellant is serving now. [3]

[*1223] The above analysis does not directly dispose of this matter because this is not a direct appeal, but rather a collateral attack on defendant’s sentence. [4] The fact that appellant’s claim would fail plain error scrutiny remains significant, however, in light of the “well-settled principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Frady, 456 U.S. at 166, 102 S.Ct. 1584. If appellant is to obtain collateral relief, he “must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Id. at 167-68, 102 S.Ct. 1584. We need not determine whether appellant has shown cause if we conclude he suffered no “actual prejudice of a degree sufficient to justify collateral relief.” Id. at 168, 102 S.Ct. 1584.

“Actual prejudice” means “not merely that the errors at ... trial created a 'possibility of prejudice, but that they worked to [defendant’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 170, 102 S.Ct. 1584. Having concluded above that the trial court’s Ap-prendi error did not affect appellant’s substantial rights such that it constituted reversible plain error, we accordingly hold that there was no actual prejudice under the higher standard required to obtain collateral relief. See United States v. Smith, 241 F.3d 546, 549 (7th Cir.) (“[F]or the same reason that [appellant] could not show plain error (if that were the right standard) he cannot show prejudice either.”), cer t. denied, — U.S. -, 122 S.Ct. 267, 151 L.Ed.2d 195 (2001).

Ill

The appeal is DISMISSED. Appellant’s motion for leave to proceed informa pauperis is GRANTED.

1

.Counsel were instructed to address the question of whether appellant waived his Ap-prendi claim by failing to raise it during the district court § 2255 proceedings. In light of our disposition of this matter, we find it unnecessary to resolve this issue.

2

. A petition for a writ of certiorari was filed in Price on January 30, 2002.

3

. We have said that Apprendi analysis will not "be guided by idle speculation as to the sentence that might be imposed by the district court on remand.” United States v. Jones, [*1223] 235 F.3d 1231, 1238 (10th Cir.2000). In this case, "there is no ‘idle speculation' as to the sentence the district court could impose upon remand" because U.S.S.G. § 5G1.2(d) is a mandatory provision. Price, 265 F.3d at 1109.

4

. For purposes of our analysis, we assume, without deciding, that Apprendi is retroactively available in an initial habeas petition.