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CRUZ v. U.S.

United States District Court, Southern District of New York


July 30, 2003

ANTHONY CRUZ, PETITIONER, AGAINST UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Shirley Kram, District Judge

OPINION AND ORDER

Petitioner Anthony Cruz moves for reconsideration of the Court's April 3, 2003 ruling denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. See Cruz v. United States, No. 01 Civ. 5542 (SWK), 2003 WL 1787117 (S.D.N.Y. Apr. 3, 2003). Specifically, Petitioner asserts that the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000) is retroactively applicable on a first section 2255 petition. Pursuant to the Second Circuit's recent holding in Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003), the motion is denied.

In accordance with Local Rule 6.3, motions for reconsideration "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "Local Rule 6.3 is to be `narrowly construed' and `strictly applied' so as to avoid repetitive arguments on issues that have been considered fully by the court." Jones v. O'Keefe, No. 99 Cr. 12279 (RCC), 2000 WL 1804153, *2 (S.D.N.Y. Dec. 7, 2000) (quoting In re Nasdaq Market Makers Antitrust Litig., 184 F.R.D. 506, 510 (S.D.N.Y. 1999)).

Recently, the Second Circuit held that although the rule announced in Apprendi is a new procedural rule, it does not apply retroactively to initial section 2255 motions for habeas relief. Coleman v. United States, 329 F.3d at 90. Therefore, Petitioner's motion for reconsideration of the Court's analysis of the retroactivity of Apprendi is denied.

Additionally, Petitioner's motion for reconsideration of his ineffective assistance of counsel claim is denied. In the April 3, 2003 ruling, the Court denied this claim based upon its untimeliness. However, the Court alternatively examined the merits of Petitioner's ineffective assistance of counsel claim in the April 3, 2003 ruling and held that Petitioner failed to meet the standard for such claims as set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984). Petitioner has not set forth any controlling decisions or evidence that the Court overlooked any matter in denying this claim. The Court finds nothing in Petitioner's papers which supports a change in the Court's previous analysis. Accordingly, Petitioner's motion for reconsideration is denied.

The Court declines to issue a certificate of appealability, and certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal taken from this order would not be in good faith.

SO ORDERED.

20030730

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