abide by the statute of limitations provisions provision does
not raise any serious constitutional questions. Triestman v.
United States, 124 F.3d 361, 377 (2d Cir. 1997).
The court concludes that petitioner is procedurally barred
from pursuing relief under § 2255, and further finds that her
claims under Apprendi are without merit because they are
procedurally defaulted, and even if they were not, the
Apprendi ruling cannot be utilized in her case.
A petitioner's failure to raise a claim of error at trial or
on direct appeal constitutes a procedural default that bars
collateral review absent a showing of both good cause to excuse
the default and ensuing prejudice. United States v. Frady,
456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Douglas v.
United States, 13 F.3d 43, 46 (2d Cir. 1993). The lack of
precedent for a position is different from cause for failing to
make a legal argument. Even if the law is against a contention,
a party must make the argument to preserve it for later
consideration Bousley v. United States, 523 U.S. 614, 118
S.Ct. 1604, 140 L.Ed.2d 828 (1998); Engle v. Isaac,
456 U.S. 107 at 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Cause
means some impediment, and petitioner does not contend that any
outside force impeded her legal defense in 1997. The lack of any
reasonable basis for a claim may constitute cause, Reed v.
Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), but
the foundation for Apprendi was laid quite some time ago.
Other defendants have been advocating Apprendi type arguments
ever since the Sentencing Guidelines came into being, and in
McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91
L.Ed.2d 67 (1986), the Court addressed the merits of a
comparable argument. In fact, the touchstone of the Apprendi
reasoning appeared at least as early as 1970 in In re Winship,
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Furthermore,
before the Apprendi decision was announced, petitioner could
have used the cases later cited in the Supreme Court's
Apprendi opinion to formulate an Apprendi style argument for
use in her direct appeal.
It is undisputed that petitioner did not raise the Apprendi
argument she now advances at any time prior to the filing of
this motion, and she does not claim that some outside force
impeded her legal defense, therefore, she has not established
cause, and because petitioner has failed to show any cause for
excusing her procedural default, the court need not consider the
issue of prejudice. Smith v. Murray, 477 U.S. at 527, 533, 106
S.Ct. 2661, at 2665, 91 L.Ed.2d 434 (1986).
In considering cause and prejudice, the court has assumed that
Apprendi applies here in the first place. Apprendi puts
forth a new rule of constitutional law, and its application to
the instant case would require using it as the foundation for a
retroactive collateral review. Under Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), few constitutional
arguments apply retroactively on collateral attack even if
properly preserved. Teague established that a new rule cannot
constitute the basis for retroactive collateral review unless it
places an entire category of conduct beyond the reach of
criminal law, forbids the use of a certain kind of punishment
for a class of defendants, or it is essential for the
fundamental fairness of the proceeding. Bilzerian v. United
States, 127 F.3d 237, 241 (2d Cir. 1997) (citing Sawyer v.
Smith, 497 U.S. 227, 241-42, 110 S.Ct. 2822, 111 L.Ed.2d 193),
cert. denied, 527 U.S. 1021, 119 S.Ct. 2365, 144 L.Ed.2d 770
(1999). Apprendi surely did not decriminalize a category of
conduct or prohibit
imprisonment of drug conspirators. The shift of the
determination of drug quantity or other facts permitting
sentences above otherwise statutory maxim from the judge to the
jury was not necessary to the fundamental fairness of criminal
proceedings, as verified in Bilzerian that the shift of the
determination of materiality in false statement cases, see
18 U.S.C. § 1001, from the court to the jury did not come within
Teague's exceptions. 127 F.3d at 241. Hence, as many circuits
have already held, Apprendi cannot buttress a retroactive
collateral review. McCoy v. United States, 266 F.3d 1245, 1258
(11th Cir. 2001); United States v. Moss, 252 F.3d 993, 1001-02
(8th Cir. 2001), cert. denied, ___ U.S ___, 122 S.Ct. 848, 151
L.Ed.2d 725 (2002); United States v. Sanders, 247 F.3d 139,
151 (4th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct.
573, 151 L.Ed.2d 445 (2001); Jones v. Smith, 231 F.3d 1227,
1236 (9th Cir. 2000); and the Second Circuit has stated, "[t]o
date, the Supreme Court has not offered any guidance on whether
Apprendi has retroactive application to cases on collateral
review. And this court has not yet ventured where the Supreme
Court has thus far feared to tread." Santana-Madera v. United
States, 260 F.3d 133, 141 (2d Cir. 2001), cert. denied, ___
U.S. ___, 122 S.Ct. 817, 151 L.Ed.2d 701 (2002).
Accordingly, petitioner's motion to vacate, set aside or
correct her sentence of imprisonment is DENIED.
IT IS SO ORDERED
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