Summary
holding that Apprendi does not apply retroactively to initial petitions
Summary of this case from Owens v. U.S.Opinion
Civil Action No. 01-11063-GAO.
February 27, 2002
MEMORANDUM AND ORDER
The petitioner has moved under 28 U.S.C. § 2255 to vacate the sentence imposed after his conviction upon his plea of guilty to one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and three counts of possession of marijuana to distribute in violation of 21 U.S.C. § 841. The criminal judgment was entered January 3, 1997. Jung appealed his sentence, but later voluntarily withdrew his appeal. The mandate of the Court of Appeals permitting the withdrawal of the appeal was issued April 23, 1998. His conviction became final as of that date.
A motion to vacate or set aside a sentence must be filed within one year of "the date on which the conviction became final," although there are three enumerated possible extensions of the limitations period. 28 U.S.C. § 2255. The petitioner's motion was filed June 19, 2001, well beyond the one-year limitations period. It may be considered timely only if it qualifies under one of the potential extensions of the limitations period.
The petitioner is not entitled to the benefit of any of the extensions. Those enumerated in the statute as (2) and (4) do not apply. There was no government-imposed impediment to the petitioner's filing within the limitations period, and the current claim does not depend on newly discovered factual evidence.
The remaining potential extension may be invoked if the petitioner's claim depends on a right that "has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255. The petitioner bases his request for relief on the Supreme Court's decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (June 26, 2000). His petition was filed within one year of the Apprendi decision.
The difficult is that the Supreme Court has not made the Apprendi case "retroactively applicable to cases on collateral review," as required by the statute to permit a late filing of a motion under § 2255. See Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000) (stating that "it is clear that the Supreme Court has not made the [Apprendi] rule retroactive to cases on collateral review").
The motion is untimely, and accordingly it is DENIED.
The petitioner's motion for leave to amend is likewise DENIED as futile.