Opinion
91 CR 371-1.
April 12, 2001.
Steven Griffin has moved for correction of his sentence. It is an Apprendi motion. I treat it as a petition under § 2255 because the rule invoked for correction of sentence (Rule 35) does not confer upon me the power to correct his sentence now. The motion is a second motion for relief under 2255, and the petitioner knows this. I assume it is the reason he cited Rule 35. He cannot file a successive petition without leave of the Court of Appeals which he has not sought, so I lack jurisdiction over the petition before me.
I suppose the petitioner can argue that Apprendi is new law and that he is entitled to file a second petition because he relies upon "a new rule of constitutional law, made retroactive . . . on collateral review by the Supreme Court." He can make this point to the Court of Appeals, but there are three reasons he is likely to fail. First, he never raised the issue at trial and the Apprendi type of argument was made (and lost) by several defendants (in my courtroom and others) before the time of petitioner's trial. See United States v. Smith, 241 F.3d 546 (7th Cir. 2001). Second, the evidence of the quantity of drugs that would be relevant to sentence here could not be effectively challenged. If the jury found Griffin guilty then I see no way that the jury could not find that the drug quantities exceeded the amount used to fix his sentence. Third, the Supreme Court did not make Apprendi retroactive, and I certainly cannot do so. Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000).
I deny the motion to strike the government's response to his motion. If it is any consolation to the petitioner, what the government said in its motion is simply a recitation of the current rulings regarding Apprendi which are, for better or worse, well known to judges in the aftermath of the opinion of the Supreme Court. I deny the motion to find the government in contempt for filing a late response. There is no prejudice to petitioner and the conduct of the government was not purposeful. The petition is dismissed for want of jurisdiction.
The motion for correction of sentence is denied [473-1]. The motion for contempt order is denied [476-1]. The motion to quash is denied [480-1].