Opinion
5:01-CV-468
March 4, 2002
TONY LAMAR MENEFIELD, Petitioner pro se, S.E. Atlanta, GA.
HON. JOSEPH A. PAVONE, BRENDA K. SANNES, AUSA, United States Attorney for the Northern District of New York, Attorney for Repondent, Syracuse, New York.
MEMORANDUM DECISION AND ORDER
Petitioner moves pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct the sentence of imprisonment he received on November 5, 1997, in the United States District Court for the Northern District of New York.
On April 16, 1997, following a jury trial, petitioner was convicted of conspiracy to distribute cocaine and/or cocaine base in (crack) violation of 21 U.S.C. § 846 and § 846(a)(1). On November 5, 1997, petitioner was sentenced to a period of 360 months imprisonment and ten years supervised release. Petitioner's conviction was affirmed on April 13, 2000, United States v. Giles, et al., 210 F.3d 356 (2d Cir. 2000) (Table), 2000 WL 424142 (2d Cir. 2000).
Petitioner contends that his sentence should be vacated and he should be resentenced in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court ruled that, as a matter of due process, any factor which increases a sentence beyond the statutory minimum is an element of the offense rather than a mere sentencing factor, the existence of which must be submitted to a jury and proved beyond a reasonable doubt. Petitioner claims that at least part of his 151 month sentence was due to factors that should have been proven as elements of the offense under the Apprendi standard. As a result he seeks reduction of his sentence and supervised release term under the new due process standard.
Respondent maintains that petitioner's contentions are without merit because his Apprendi or Apprendi type argument has been procedurally defaulted because it was not properly raised at trial or on direct appeal, and, even if it had been raised, the holding in Apprendi cannot be applied retroactively to petitioner's case on collateral review.