01 C 4842
December 7, 2001
In this § 2255 petition, J.L. Houston seeks to raise Apprendi issues. He was convicted of narcotics conspiracy and racketeering conspiracy. He received a life sentence from me on each count. There was no determination by the jury that there were particular amounts of drugs which Houston was responsible. So it is clear that the dictates of Apprendi were not followed. The issues are whether the Apprendi claim may be raised in this collateral proceeding and, if so, whether the Apprendi error was harmless.
I have expressed the view that Apprendi is not available to a petitioner who attacks a conviction under § 2255 in United States v. Scurlock, (No. 97 C 8348, June 19, 2001). The Seventh Circuit has not decided the question but, as Judge Easterbrook notes, three other Circuits have reached the same conclusion that I did. See Ashley v. United States, 266 F.3d 671 (7th Cir. 2001). I adhere to my view.
Were I to consider the Apprendi question, I would find the error to be harmless. It is clear to me that no jury which would convict Houston would fail to find that he was responsible for massive amounts of narcotics. More importantly, he received two concurrent life sentences and the one he got for racketeering conspiracy is not affected by Apprendi, so there is no harm to him.
The petition is denied.