Opinion
01 C 50206
March 27, 2002
ORDER
Due to defendant Guillermo Maya-Domingaez's initial failure to file a brief defining the issues in his motion pursuant to 28 U.S.C. § 2255 this court summarily dismissed his motion on July 13, 2001 as not timely filed. On July 30, 2001 defendant filed a motion for reconsideration which was denied on August 2, 2001. On October 15, 2001 defendant filed a notice of appeal and application for a certificate of appealability. In the application for the certificate defendant states the three issues he intends to raise in the appeal: (1) whether his original motion was timely filed; (2) whether Apprendi v. New Jersey, 530 U.S. 466 (2000) is retroactive to his case; and (3) if Apprendi is retroactive, whether it applies to his sentence of imprisonment of 168 months. Even assuming his § 2255 motion was timely and the court improvidently summarily dismissed it for this reason (tough his notice of appeal may be untimely), the decision in Apprendi does not apply as defendant was not sentenced above the 40-year statutory maximum sentence for conspiracy to possess with intent to distribute 650 kilos of marijuana as charged under 21 U.S.C. § 846. Accordingly, no substantial showing of the denial of a constitutional right is made and the court denies a certificate of appealability.