U.S. v. Folden

Full title: UNITED STATES OF AMERICA, Plaintiff v. JODI MARIE FOLDEN, Defendant

Court: United States District Court, D. Nebraska

Date published: Feb 14, 2001

4:95CR3040 (D. Neb. Feb. 14, 2001)

Opinion

4:95CR3040

February 14, 2001

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT AN UNLAWFUL SENTENCE

Warren K. Urbom, United States Senior District Judge.

This matter is before me on the petitioner's Motion to Correct a Sentence Pursuant to Title 28 U.S.C. § 2255, filing 91. Jodi Marie Folden was sentenced by this Court on November 21, 1995, after she pleaded guilty to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 841 and 846, and one count of criminal forfeiture. The Sentencing Guidelines' range of imprisonment for these crimes, given Folden's criminal history, was 135 to 168 months. However, she received a downward departure to 92 months of imprisonment based upon the substantial assistance she provided to the prosecution in other cases.

The court file in this case and the petition itself reflect that the petitioner has previously filed a motion pursuant to § 2255 (filing 69) which I denied in an order dated June 2, 1997 (filing 75). The Antiterrorism and Effective Death Penalty Act of 1996 added a procedural hurdle that petitioners who wish to bring a second § 2255 motion must overcome. Section 2255 now contains the following provision:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255 (West Supp. 2000). The petitioner's motion must be dismissed because it has not been certified as provided in § 2255 and § 2244.

The petitioner should note that proper certification of her motion may be difficult to obtain, given that her motion appears to be based upon Apprendi v. New Jersey, 530 U.S. 466 (2000).Rodgers v. United States, 229 F.3d 704, 706 (8th Cir. 2000) (holding that Apprendi is not available to a prisoner filing a second petition under § 2255).

IT IS ORDERED that the petitioner's Motion to Correct a Sentence Pursuant to Title 28 U.S.C. § 2255, filing 91, is denied.