Opinion
Criminal No. C3-93-59-01.
January 12, 2001.
ORDER
Before the Court is defendant's motion for relief from judgment under Rule 60 of the Federal Rules of Civil Procedure (doc. # 266). For reasons set forth below, the motion is DENIED.
No response from the United States is required because the Court has determined, under 28 U.S.C. § 2255, that the motion and file make clear that defendant is entitled to no relief.
The Court begins by noting that this motion presents myriad procedural problems. Initially, it seeks relief pursuant to Rule 60 of the Federal Rules of Civil Procedure, rules which have no application to a criminal case. However, even if the Court construes the motion as one for habeas corpus relief under 28 U.S.C. § 2255, as some courts have done, see generally Dover v. United States, No. 96-181-11999, WL 239821 at *1 (E.D.Pa. Apr. 8, 1999), the procedural thicket is not clear. Rather, the motion appears to be barred for at least two reasons: It is outside the one-year statute of limitations proscribed for § 2255 motions, and defendant has already unsuccessfully filed and appealed several similar motions but has not sought certification for bringing a successive motion. See 28 U.S.C. § 2255. Therefore, the motion is likely barred by the procedural rules of§ 2255.
However, Eighth Circuit courts have held that, when it is clear a prisoner cannot prevail, judicial economy may dictate disposing of the merits rather than dwelling on procedure. See Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999). Therefore, rather than attempt to reconstruct the proper procedural path defendant should have taken, the Court will give his claim the brief treatment required to dispose of it.
Defendant was indicted for conspiracy to distribute methamphetamine, "a schedule III controlled substance," pled guilty, and was sentenced to twenty years imprisonment (doc. # 143). He now argues he should have been sentenced to a maximum of ten years under 21 U.S.C. § 841(b)(1)(D), which prescribes a maximum of ten years for distributing schedule III substances when the defendant has one prior drug conviction.
Defendant's argument points out that the indictment contains an error: Methamphetamine is, and was at the time of this case, in schedule II, not schedule III, as the indictment reads. 21 U.S.C. § 812. Thus, the language of the indictment varies from the statute. However, this is of no benefit to defendant: "An indictment, not questioned at trial or on direct appeal, is not open to attack by motion under § 2255, unless it is so obviously defective as not to be capable by any reasonable construction of being said to charge the offense on which conviction was had." Link v. United States, 352 F.2d 207, 209 (8th Cir. 1965). This is clearly not the case; the indictment's explicit reference to methamphetamine, as well as the change of plea proceedings, gave defendant notice of the exact charges. See Roberson v. U.S., 901 F.2d 1475, 1477 (8th Cir. 1990) (rejecting collateral attack when defendant had notice of charges against him and possible sentences). Further, his prior appeals and § 2255 efforts did not raise the issue.
Therefore, the error defendant has found does not help him. Rather, the Court concludes that it correctly sentenced defendant to a twenty year minimum mandatory sentence under 21 U.S.C. § 841 (b)(1)(A)(viii), as required by the drug amount — 1,624 grams of a mixture containing methamphetamine — and a prior drug conviction. His motion for relief is therefore DENIED.
In connection with his argument, defendant has also cited Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Defendant was sentenced six years before Apprendi was decided, so it has no application to his case.
IT IS SO ORDERED.