Opinion
No. 8:00CR212.
February 9, 2006
MEMORANDUM AND ORDER
This matter is before the Court on the defendant's motion for reconsideration (Filing No. 171). The defendant seeks reconsideration of the Court's January 18, 2006, order, which denied the defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 because the defendant had not received Eighth Circuit approval to file a second or successive § 2255 motion (Filing Nos. 169 and 170). The defendant contends that his second § 2255 motion does not constitute a successive habeas petition because it raises a claim based on a 2005 decision from the Eighth Circuit that could not have been raised in his first § 2255 motion, which was filed in November of 2004. Specifically, the defendant contends, citing the Eighth Circuit's recent decision in Wadlington v. United States, 428 F.3d 779, 784-785 (8th Cir. 2005) that Apprendi v. New Jersey, 530 U.S. 466 (2000), retroactively applies to his case because his conviction and sentence were not yet final when Apprendi was announced. The defendant's reliance on Wadlington, however, is inapposite. In Wadlington, the Eighth Circuit held that the district should have considered the defendant's Apprendi claim on collateral review because Apprendi had been decided while the defendant's direct appeal was pending. 428 F.3d at 785. Unlike the defendant Wadlington, the defendant in the present case was convicted on July 18, 2001, approximately one year after Apprendi was decided in June of 2000. Moreover, the verdict form utilized in the defendant's case contained drug quantities and was thus Apprendi-compliant ( See Filing No. 70). For these reasons, the Court declines to reconsider its January, 18, 2006, order. Accordingly,
IT IS ORDERED that defendant's motion for reconsideration (Filing No. 171) is denied.