procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” O’Dell v. Netherland, 521 U.S. 151, 167, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). Vargas asserts that his petition is not time barred because Apprendi falls under this second exception. Although the Second Circuit has yet to address whether Apprendi apphes retroactively on collateral review, see Santana-Madera v. United States, 260 F.3d 133 (2d Cir.2001), it has noted that the Supreme Court “has measured at least eleven new rules, or proposed new rules, of criminal procedure against the criteria for the second [Teague ] exception and, in every case, has refused to apply the rule at issue retroactively.” Mandanici, 205 F.3d at 529; see also Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir.1997) (<HOLDING>). Furthermore, every other circuit that has
holding that administrative punishment does not implicate a liberty interest protected by the fifth amendment unless the punishment imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life quoting sandin v conner 515 us 472 484 115 sct 2293 132 led2d 418 1995 holding that the rule announced in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 applies retroactively on collateral review holding that the supreme courts interpretation of 18 usc  924c1 in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 has retroactive application to cases on collateral review holding that united states v gaudin 515 us 506 115 sct 2310 132 led2d 444 1995 which shifted the determination of materiality in a prosecution under 18 usc  1001 from the judge to the jury was not a watershed rule justifying retroactive collateral review under teague holding that materiality necessary element of section 1001