Opinion
No. 99 C 4005 (94 CR 116)
February 9, 2001
MEMORANDUM OPINION AND ORDER
This Court has inherited, by random reassignment, the most recent filing by petitioner Joseph Marino ("Marino"): his "Motion for Ruling on Petitioner Marino's Motion for Leave To Amend 28 U.S.C. § 2255, et al. Motions," received in the Clerk's Office on January 16, 2001. Marino's criminal case had originally been on the calendar of this Court's former colleague, Honorable Ann Williams, some years before her appointment to the Court of Appeals — and because she had been Marino's sentencing judge, Judge Williams then also opted to retain the post-conviction aspect of the case through December 29, 2000. On that date she entered a minute order denying Marino's 28 U.S.C. § 2255 motion to vacate, correct or set aside his sentence and his alternative request for relief pursuant to Section 2241 or for a writ of coram nobis. Because Marino's lawyer James Reilley now says that the December 29 order "did not consider and rule on Petitioner's Motion to Amend," Marino's newest (January 16) motion has ended up on this Court's plate.
All further references to Title 28's provisions will simply take the form "Section ___."
But attorney Reilley's attempted presentation of Marino's October 13, 2000 "motion for leave to amend" to this District Court in the first instance is fatally flawed. It takes only a comparatively brief analysis to demonstrate why that is so.
To be sure, Judge Williams had not yet ruled on Marino's original Section 2255 motion (which had been filed in June 1999) when attorney Reilley tendered the October 2000 motion for leave to amend that original motion. But what controls here instead is the fact that the substantive ground that Marino sought to advance in the October 2000 filing was totally new: It asked for relief under Apprendi v. New Jersey, 530 U.S. 120 (2000), a decision that had not been handed down until June 2000. There is of course no way in which Marino's additional claim based on Apprendi could serve as an amendment that could relate back to the date of his original Section 2255 motion (which had been filed, it will be remembered, over a year before the Apprendi decision). Any such attempted anachronistic feat would be redolent of the efforts of a Middle Ages alchemist to transmute base metal into gold.
Essentially, whatever label Marino's counsel may have chosen to place on the October 2000 filing, any attempt at that time to invoke the newly-decided Apprendi case as a totally new ground for relief must be viewed as a "claim presented in a second or successive habeas corpus application" within the meaning of Section 2244. That being the case, the law specifically forbids the filing of such a new claim in the District Court without having sought and obtained leave to do so from the Court of Appeals (Section 2244(b)(3) expressly mandates such a prior submission). In that respect our Court of Appeals has been brutally frank in its rejection of such Apprendi-based efforts to obtain Section 2255 relief — as Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000) has put it:
Section 2244 itself uses the quoted terminology in conjunction with Section 2254 habeas proceedings by state court prisoners (see Section 2244(b)(1) and (2)), but the last paragraph of Section 2255 imposes the identical Section 2244 requirements on a "second or successive motion" brought under Section 2255 by a federal prisoner such as Marino.
Apprendi does not state that it applies retroactively to other cases on collateral review. No other decision of the Supreme Court applies Apprendi retroactively to cases on collateral review. So, given Bennett [v. United States, 119 F.3d 470 (7th Cir. 1997)], no application based on Apprendi can be authorized under Section 2244(b)(2)(A) or Section 2255 ¶ 8(2). Accord, Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir. 2000). If the Supreme Court ultimately declares that Apprendi applies retroactively on collateral attack, we will authorize successive collateral review of cases to which Apprendi applies. Until then prisoners should hold their horses and stop wasting everyone's time with futile applications.
And the Talbott holding has been reconfirmed only 10 days ago in the per curiam opinion in Garrott v. United States, No. 99-2921, 2001 WL 71075, at *2 (7th Cir. Jan. 30).
Accordingly Marino's motion to reconsider or modify Judge Williams' December 29 order is denied because of his failure to have complied with Section 2244(b)(3). This Court is therefore not called upon to address the substantive viability or nonviability of Marino's constitutional claim.