rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law.’ ” 489 U.S. at 311, 109 S.Ct. 1060 (citations o 1 & n. 5 (S.D.N.Y. Apr.3, 2002) (Sprizzo, J.) (same); Saldarriaga v. United States, No. 99 Civ. 4487, 2002 WL 449651, at *5 (S.D.N.Y. Mar.21, 2002) (same); Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, at *1 (S.D.N.Y. Jan.11, 2002) (same). But see Rosario, 2001 WL 1006641, at *2 (ruling that Apprendi is substantive in nature and therefore retroactive). Though the Second Circuit has not specifically considered the issue, the Fourth, Eighth, Ninth, and Eleventh Circuits have all ruled that Apprendi does not apply retroactively on collateral review. See, e.g., Sanders, 247 F.3d at 147-51 (<HOLDING>); United States v. Moss, 252 F.3d 993, 997 (8th
holding that apprendi does not apply on collateral review holding that the apprendi decision is not applicable on collateral review holding that apprendi does not apply retroactively in florida in postconviction proceedings to cases that were final on direct review at the time of the apprendi decision holding that apprendi does not apply retroactively in florida postconviction proceedings to cases that were final on direct review at the time of the apprendi decision holding booker is not retroactively applicable to cases on collateral review