Jury instruction not requiring unanimity on specific violations in continuing criminal enterprise trial does not require automatic reversal

HABEAS/COLLATERAL REVIEW United States v. Dago, No. 04-1184, ___ F.3d ___ (10th Cir. Mar. 30, 2006)(Colorado). Appeal of district court’s denial of habeas petition brought under 28 U.S.C § 2255 challenging conviction and sentence for engaging in continuing criminal enterprise related to drug trafficking in violation of 21 U.S.C. § 848(c). HELD: (1) Richardson v. United States, 526 U.S. 813, 815 (1999), holding that jury must unanimously agree on which specific violations make up “continuing series of violations” underlying continuing criminal enterprise conviction, announced substantive rule of criminal law, not new rule of criminal procedure. Therefore, Richardson rule applies retroactively to cases on collateral review. (2) Jury instruction error arising from violation of Richardson rule does not rise to level of structural error requiring automatic reversal. Rather, such error is subject to harmless error review under standard set out in Brecht v. Abrahamson, 507 U.S. 619, 622-23 (1993), for habeas relief. Under Brecht standard, Richardson error is analyzed to determine whether error had substantial and injurious effect in determining jury’s verdict. (3) District court’s seven-and-a-half-year delay in denying 28 U.S.C. § 2255 habeas petition was not denial of due process sufficient to justify granting habeas relief. Prisoner experiencing delay in a federal court’s resolution of his challenge to federal conviction, either on direct appeal or collaterally, has other remedies available to combat delay. Read the opinion here.