Opinion
99 Civ. 10727 (TPG), 94 Cr. 417 (TPG)
January 7, 2003
OPINION
This is a motion under 28 U.S.C. § 2255 to vacate a conviction. Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, the court has determined that the motion should be summarily dismissed.
Rodrigues was tried in 1995 along with several other defendants in connection with a nationwide drug trafficking and money laundering ring. Rodrigues was convicted on numerous counts and was sentenced to 168 months imprisonment. Rodrigues appealed. On December 10, 1997 the Court of Appeals affirmed the conviction, filing a summary order dealing with most of the points and a decision dealing with the others. The decision is reported at 141 F.3d 394. Certiorari was denied by the Supreme Court on October 5, 1998.
The present motion was filed in October 1999. An additional brief was filed in October 2000 based upon the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
The first ground of Rodrigues' present motion is an attempt to raise an issue that is dealt with in this courts opinion, dated today, dealing with a § 2255 motion by a co-defendant of Rodrigues, James Piggott. It appears that Judge Stanton of this court signed a wiretap order, the application for which referred to an order of the Attorney General bearing a particular number. It turned out that the order with that number had expired. There was, however, an Attorney Generals order in effect at the time of the application to Judge Stanton. The number used in the application to Judge Stanton was the result of a typographical error. The issue is of no substance.
As to the second ground, the only specific point raised is a brief mention of the necessity requirement" in wiretap applications. But the matter is not developed. There is no showing in the second ground of any basis for relief.
The third ground complains of the fact that, in connection with the courts charge to the jury on uncalled witnesses, the court stated that "all parties to a case have a right to call witnesses." This, of course, is standard language, and there was no error in using it, particularly in view of the fact that the court emphasized that the burden of proof always rests with the Government.
The fourth ground simply makes no point that can be interpreted as germane to a § 2255 motion.
As described earlier, the brief filed in 2000 attempts to raise an issue under Apprendi. However, Apprendi cannot be applied retroactively.See McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001); Rivera v. United States, 136 F. Supp.2d 263, 264 (S.D.N.Y. 2001). In any event, there was no violation of the Apprendi rule. It is true that the court instructed the jury that it need not make a finding as to the quantity of drugs. However, the portion of the statute dealing with the penalty for narcotics offenses without reference to quantity provides for imprisonment up to 20 years. 21 U.S.C. § 841(b)(1)(C). The statutory penalty for money laundering is up to 20 years. 18 U.S.C. § 1956. The 168 month sentence of Rodrigues is within these maximum amounts.
The motion is denied and dismissed.
The moving party has not made a substantial showing of the denial of a constitutional right. Therefore a certificate of appealability will not issue. 28 U.S.C. § 2253.
In respect to the in forma pauperis statute, the court certifies that an appeal would not be taken in good faith. 28 U.S.C. § 1915(a)(3).