Opinion
No. 83 Cr. 150 (MBM).
March 10, 2005
WALLACE RICE, Lewisburg PA, (Petitioner pro se)
OPINION AND ORDER
Wallace Rice was convicted in 1983 of various narcotics violations, including participating in a continuing criminal enterprise ("CCE"), after a trial before the Hon. Milton Pollack and a jury. He was sentenced to life without parole. His conviction and sentence, along with those of his codefendants, were affirmed by our Court of Appeals in 1985. See United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985). In 2000, he petitioned pursuant to 28 U.S.C. § 2255 to vacate his CCE conviction because the court failed to instruct the jury pursuant to Richardson v. United States, 526 U.S. 813 (1999), that there had to be unanimity as to each individual violation comprising the continuing series of violations that constitute a CCE offense. Judge Pollack found that Richardson announced a procedural rule that would be inapplicable to Rice's case pursuant to the Supreme Court's analysis in Bousley v. United States, 523 U.S. 614, 620 (1998), because it did not legalize conduct previously thought to be illegal. Rice v. United States, 118 F. Supp.2d 451, 452 (S.D.N.Y. 2000). Moreover, Judge Pollack found that even if Richardson were found to apply retroactively, there could be no prejudice to Rice because he found it "beyond cavil" that the jury in his case, having convicted him of a substantive narcotics count and a narcotics conspiracy and heard him admit engaging in the narcotics business from 1973 to 1977, had in fact agreed unanimously on the requisite series of violations even absent an instruction requiring such a finding. Id. at 453. The Court of Appeals dismissed the appeal. Rice v. United States, No. 01-2209 (2d Cir. Feb. 13, 2002). On October 9, 2002, while confined at the U.S. Penitentiary at Lewisburg, Rice petitioned pursuant to 28 U.S.C. § 2241 in the Middle District of Pennsylvania, Rice v. Dodrill, No. 02-1817 (Kane, J.), arguing that his sentence was illegal by the standards ofApprendi v. New Jersey, 530 U.S. 466 (2000), which petition was dismissed by Judge Kane on May 11, 2004, on the ground that Rice had not shown that Section 2255 was inadequate or ineffective to test his confinement, and that Section 2241 "should not be used to used as a way of evading the gatekeeping provisions of § 2255." Rice filed a Notice of Appeal on June 3, 2004 and that appeal is pending before the Third Circuit. Rice v. Dodrill, No. 04-2603 (3d Cir.).
In August 2004, Rice filed what he styles a motion under former Rule of Criminal Procedure 35(a) to reduce his sentence on the ground that it is illegal, supported by a memorandum of law consisting of eight unnumbered pages. Following Judge Pollack's death in August 2004, this motion was assigned to my docket. The illegality, Rice says, arises from his claim that the judge and not the jury made the finding that he had committed the series of violations prerequisite to his CCE conviction. (Mem. of Law In Support of Motion Etc. at 7-8) Although the motion is styled a Rule 35 motion, and bears the docket number of Rice's criminal case, the caption lists Rice as the petitioner and the United States as the respondent, which suggests that it is, in reality, a new habeas corpus petition.See Stantini v. United States, 986 F. Supp. 736, 739 (E.D.N.Y. 1997) (treating Rule 35 motion as petition pursuant to 28 U.S.C. § 2255). On July 28, 2004, Rice moved before the Court of Appeals for the Second Circuit for permission to file a second and successive petition pursuant to 28 U.S.C. § 2255, raising the same issues he raises in his current application, based onRichardson and Apprendi. That Court denied Rice's motion.Rice v. United States, No. 04-4026 (2d Cir. Aug. 23, 2004).
From the above history, it appears that Rice is seeking to have this court consider a second and successive petition brought in the guise of a Rule 35 motion, when the Court of Appeals already has determined that Rice does not meet the requirements of 28 U.S.C. § 2255 for filing a second and successive petition. In any event, for the reasons stated by Judge Pollack in Rice, supra, there can have been no illegality here because the jury did make the necessary findings even in the absence of an instruction requiring such findings as a prerequisite to conviction. Although I would in any event deny Rice's motion, it appears that the proper course may be to refer this motion to the Court of Appeals pursuant to Liriano v. United States, 95 F.3d 119 (2d Cir. 1996).
Accordingly, the Clerk is directed to refer this motion to the Court of Appeals for the Second Circuit pursuant to Liriano, supra.
SO ORDERED.