ORDER REASONS

KURT ENGELHARDT, District Judge

Before the Court is Petitioner Percy Franklin's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. For the reasons that follow, Petitioner's motion is DENIED.

I. BACKGROUND

Percy Franklin was convicted of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 841 and 846, and was sentenced to 240 months imprisonment with an additional 10 years of supervised release. Franklin was found not guilty of the use of a firearm in relation to drug trafficking as set forth in 18 U.S.C. § 924. As a result, he was the only member of the conspiracy not to receive a life sentence.

On August 31, 2001, the Fifth Circuit vacated the sentences of Franklin and his coconspirators on Apprendi grounds for failure to allege drug quantities in the indictment and remanded them for re-sentencing. United States v. Baptiste, 264 F.3d 578 (5th Cir. 2001); see Apprendi v. New Jersey, 530 U.S. 466 (2000). On rehearing, however, the Fifth Circuit upheld the sentences, holding, inter alia, that the omission of drug quantities from indictments and imposition of quantity — based sentences above the statutory maximum was harmless error (if objected to trial) and not reversible plain error (if not) given abundant evidence at trial that the drug quantities involved in the conspiracy far exceeded those required to justify their sentences. United States v. Baptiste, 309 F.3d 274 (5th Cir. 2002).

The Baptiste rehearing decision was issued on October 2, 2002. Franklin's § 2255 motion was filed on October 31, 2003. A conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation. Clay v. United States, 537 U.S. 522 (2003). A petition for a writ of certiorari must be filed no later than 90 days after entry of the Court of Appeals' judgment. Sup.Ct.R. 13(1). A motion for postconviction relief is subject to a one — year time limitation that runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. Therefore, Franklin's motion is timely as it was filed within a year and ninety days of the rehearing decision.

II. LAW ANALYSIS

Franklin's § 2255 petition sets forth two claims for relief. The first is that 21 U.S.C. § 841 is unconstitutional, and therefore the district court lacked jurisdiction. The second claim is that the sentence imposed violates Apprendi because it exceeds the core statutory maximum and no drug quantity was stated in the indictment or specifically found by the jury.

The matter is based entirely upon the application of legal principles to established facts. Therefore, an evidentiary hearing is not required. See 28 U.S.C. § 2255. The motions and record of the case conclusively show that the Petitioner is not entitled to relief.

A. Issue One: Unconstitutionality of 21 U.S.C. § 841

Franklin argues that 21 U.S.C. § 841 is unconstitutional folio wing Apprendi and that the district court lacked jurisdiction as a result. Apprendi held that if a "sentencing factor" increases a sentence beyond the statutory maximum, "it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." Apprendi, 530 U.S. at 494 n. 19. Other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Id. at 490. The penalty provisions of the statute are contained in § 841(b) and the sentence limits are based on the quantity of drugs involved. No quantity was set forth in Franklin's indictment. However, the Fifth Circuit has previously rejected the argument that Apprendi rendered § 841 inherently unconstitutional. United States v. Slaughter, 238 F.3d 580, 582-3 (5th Cir. 2000).

Franklin also argues that the court was without jurisdiction to sentence him because his indictment failed to allege a drug quantity with respect to his conspiracy conviction as required under Apprendi. The argument is without merit based upon recent decisions by the Supreme Court and the Fifth Circuit. In United States v. Cotton, 535 U.S. 625, 629-31 (2002), the Supreme Court held that defects in an indictment do not deprive a court of jurisdiction. Accordingly, the Fifth Circuit recognized that, under Cotton, failure of the indictment to state a drug quantity does not deprive the court of jurisdiction. United States v. Longoria, 298 F.3d 367 (5th Cir. 2002) (en banc). Thus, Franklin's first claim for relief is without merit.

B. Issue Two: The Sentence Under Apprendi

Franklin's second ground for relief is that the sentence imposed violates Apprendi because it exceeds the core statutory maximum and no drug quantity was stated in the indictment or specifically found by the jury. This argument has already been considered and rejected by the Fifth Circuit in the Baptiste rehearing. It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 motions. United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994) (citing United States v. Kalish, 780 F.2d 506 (5th Cir. 1986)). Habeas corpus relief is an extraordinary remedy and "will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998).

The Fifth Circuit in the Baptiste rehearing found the sentences for Franklin and his coconspirators to be both constitutional and supported by overwhelming evidence. Franklin's sentence of 240 months imprisonment was within the § 841(b)(1)(C) primary statutory maximum for his offense. The enhanced sentence of supervised release was his only Apprendi issue, The Baptiste rehearing decision found that claim to be meritless.

Drug trafficking crimes defined in 21 U.S.C. § 841 are governed by Apprendi analysis on the theory that the dramatically tiered sentences for increasing quantities of illegal drugs enhance the "core" statutory maximum of § 841(b)(1)(C). U.S. v. Doggett, 230 F.3d 160, 163 (5th Cir. 2000). Consequently, the quantity of drugs should be alleged in the indictment and proved to the jury beyond a reasonable doubt if, as here, the government seeks enhanced penalties under §§ 84i(b)(1)(A) or (b)(1)(B). Id. at 164-65. However, Cotton requires appellate courts to assess the evidence of drug quantity to determine whether the sentencing error seriously affects the integrity, fairness, or public reputation of the judicial proceedings. Cotton, 535 U.S. at 631-3. If the evidence supporting the omitted fact is overwhelming and essentially uncontroverted, then the error cannot be said to seriously affect the integrity of the proceedings. Id.

With respect to all of the defendants, the evidence showed that the crack distributed during the period of the conspiracy far exceeded the quantities necessary to justify their sentences. The Fifth Circuit determined that the evidence at trial abundantly demonstrated that conspiracy members were selling an ounce of crack cocaine or more every week for several years. Baptiste, 309 F.3d at 277. Given the overwhelming and essentially uncontroverted evidence regarding the scope of this long lasting conspiracy, the Fifth Circuit concluded that there was no chance the jury would have found that the conspiracy encompassed less than 50 grams of cocaine base. Id. at 278. Such a quantity triggers the enhanced penalty provisions of § 841(b)(1)(A) which allows for a maximum life sentence. As such, the Fifth Circuit has already found that Franklin's term of supervised release does not violate Apprendi.

III. CONCLUSION

Accordingly, for the foregoing reasons, IT IS ORDERED that Petitioner Percy Franklin's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 is DENIED.