Opinion
00 Civ. 7493 (LAK), (97 Crim. 1192 (LAK))
October 25, 2000
ORDER
James Robinson was convicted by a jury of conspiracy to possess with intent to distribute 500 grams and more of cocaine ( 21 U.S.C. § 846) and of possession with intent to distribute 500 grams and more of cocaine ( 21 U.S.C. § 841(b)(1)(B)) and sentenced principally to a term of 120 months imprisonment. His conviction was affirmed by the Second Circuit earlier this year. He now moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. He makes three interrelated arguments, all based on Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), viz. (1) the charge to the jury erroneously failed to require a jury finding as to the quantity of drugs, (2) movant was deprived of the effective assistance of trial counsel in that trial counsel failed to object to the charge on the ground that it failed to require a jury finding as to the quantity of drugs, and (3) the indictment deprived movant of due process in that it failed to charge as an element of the charged offenses a prior Bronx County felony conviction later used as a basis for enhancing his sentence pursuant to 21 U.S.C. § 851.
The government is directed to respond to the motion no later than November 24, 2000. Moreover, in view of the possibly meritorious nature of at least the first of movant's assertions, see United States v. Murphy, 109 F. Supp.2d 1059 (D.Minn. 2000), the Court hereby grants movant's application for the appointment of counsel and appoints his former appellate counsel, David Lewis, Esq., pursuant to the Criminal Justice Act to represent him on this motion.
SO ORDERED.