The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner moves pursuant to 28 U.S.C. § 2255 for a new
trial. For reasons discussed below, the motion is denied.
Following a jury trial, petitioner was convicted on May 1,
1987 on one count of conspiracy to steal goods which were part
of an interstate freight shipment, one count of stealing goods
which were part of an interstate freight shipment, and one
count of kidnapping a person willfully transported in
interstate commerce. 18 U.S.C. § 371, 659 and 1201. On June
30, 1987 this Court sentenced petitioner to serve concurrent
terms of nine years incarceration on each count, and imposed
the mandatory assessment of $150.
On February 11, 1988 the Court denied petitioner's motion for
a reduction of sentence. Fed.R.Crim.P. 35. Petitioner now moves
for a new trial in light of Gomez v. United States, ___ U.S.
___, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), alleging that
despite his objection on the record, a federal magistrate
improperly presided over jury selection. Based upon a thorough
review of the Gomez decision, as well as the post-Gomez
directives of this circuit, retroactive application of the
Gomez rule is unwarranted for convictions that became final
prior to the Supreme Court's decision. Petitioner's motion must
therefore be denied.
The Federal Magistrates Act empowers district courts to
delegate to magistrates certain described powers and listed
duties, as well as "such additional duties as are not
inconsistent with the Constitution and laws of the United
States." 28 U.S.C. § 636(b)(3). In Gomez v. United States, ___
U.S. ___, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Supreme
Court rejected the proposition that "presiding at the selection
of a jury in a felony trial without defendant's consent is
among those 'additional duties'". Id. 109 S.Ct. at 2239.
In the wake of Gomez there has followed an aftershock that
continues to rumble through the circuits, uncovering inevitable
issues which flow from the Supreme Court's rather narrow
holding. Recently, the Second Circuit faced the question
whether a defendant who does not object to a magistrate's
conducting voir dire is protected by Gomez. The Court
unequivocally concluded that such a defendant is not. United
States v. Vanwort, 887 F.2d 375, 382-383 (2d Cir. 1989); United
States v. Mang Sun Wong, 884 F.2d 1537, 1545 n. 2 (2d Cir.
1989); see also United States v. Alvarado, 891 F.2d 439 (2d
Cir. 1989). Today, we confront another issue in the Gomez
aftershock, i.e., retroactivity.
While no circuit court has yet squarely decided the
retroactive effect of Gomez on final*fn1 judgments, we are not
totally without guidance. See United States v. Lopez-Pena,
890 F.2d 490, 493 n. 3 (1st Cir. 1989) (court, ruling on the
retroactive effect of
Gomez on cases still pending on direct appeal, mentions in
dicta that Teague v. Lane, ___ U.S. ___, 109 S.Ct. 1060, 1070,
103 L.Ed.2d 334, reh'g denied, ___ U.S. ___, 109 S.Ct. 1771,
104 L.Ed.2d 206 (1989), provides the appropriate standard for
determining retroactivity of "new rulings" on collateral review
of final convictions); see also United States v. France,
886 F.2d 223, 227 n. 2 (9th Cir. 1989). In Teague, the Supreme
Court teaches that so-called "new rules" are generally not
retroactive and "a case announces a new rule if the result was
not dictated by precedent existing at the time the defendant's
conviction became final." Id. 109 S.Ct. at 1070, (emphasis in
Petitioner strenuously argues that Gomez involves no "new"
rule, but merely a clarification of an existing rule that has
been misapplied by federal courts across the country. This
Court disagrees. Prior to Gomez, the Supreme Court had been
silent on the issue of a federal magistrate's jurisdiction to
preside over jury selection. Its holding that magistrates lack
such jurisdiction can only be characterized as new. United
States v. Rubio, 722 F. Supp. 77, 84-85 (D.Del. 1989).*fn2 See
also France, 886 F.2d at 227; Lopez-Pena, 890 F.2d at 493 n. 3;
United States v. Baron, 721 F. Supp. 259, 261 (D.Hawaii 1989).
It follows, therefore, that whether Gomez applies retroactively
to final judgments turns on the Supreme Court's newly announced
standard in Teague. Id.
In Teague the Supreme Court concluded with respect to cases
on collateral review — such as this federal habeas corpus
petition — that "unless they fall within an exception to the
general rule, new constitutional rules of criminal procedure
will not be applicable to those cases which have become final
before the new rules are announced." Teague, 109 S.Ct. at 1075
(1989). See also Penry v. Lynaugh, ___ U.S. ___, 109 S.Ct.
2934, 106 L.Ed.2d 256 (1989).
To the general rule of non-retroactivity the Teague court
articulated two exceptions. One permits a new rule to be
applied retroactively "if it places 'certain kinds of primary,
private individual conduct beyond the power of the criminal
law-making authority to proscribe.'" Id. 109 S.Ct. at 1075
(quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct.
1160, 1180, 28 L.Ed.2d 404 (separate opinion of Harlan, J.)).
Clearly, as all parties here concede, this first exception does
not apply because the Gomez decision does not implicate any
primary conduct that was once illegal but is now legal.
The second exception, however, is more troublesome. According
to a plurality of the Teague Court, a new rule should be
applied retroactively to an otherwise final judgment when such
a rule involves "those new procedures without which the
likelihood of an accurate conviction is seriously diminished."
Id. 109 S.Ct. at 1076-1077. District courts have split on this
question vis-a-vis jury selection by a magistrate. The Hawaii
district court in Baron, supra, concluded that "because the
rule announced in Gomez implicates the fundamental fairness of
Baron's trial and the accuracy of her conviction, this Court
finds that Gomez must be applied retroactively on collateral
review." Id. at 262.
In Rubio, supra, however, the Delaware district court,
applying the same Teague exception, adamantly rejected any
retroactive application of Gomez to final judgments on
collateral attack. Rubio, 722 F. Supp. at 84. That court
Rubio's claim cannot be meaningfully distinguished
from that present in Teague. Both involve the same
issue: challenges to the propriety of the jury
empanelment. Whereas the petitioner in Teague
raised a sixth amendment challenge to the propriety
of the jury empanelment, Rubio's [Gomez] claim is
based upon the Court's interpretation of a statute.
Empanelment before a federal magistrate is no more
likely to impact upon the accuracy of conviction
than the use of peremptory challenges to strike
jurors. Surely, if the constitutional claim in
Teague did not ...