Appeal from the United States District Court for the Southern District of Illinois. No. 97 C 4116--James L. Foreman, Judge.
Before Harlington Wood, Jr., Cudahy, and Kanne, Circuit Judges.
The opinion of the court was delivered by: Kanne, Circuit Judge
Eugene Fischer seeks habeas relief from his conviction of being the principal administrator of a continuing criminal enterprise (CCE), alleging that his conviction was obtained in violation of Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). The district court denied habeas relief, and we affirm.
Over thirteen years ago, Fischer was convicted of violating 21 U.S.C. sec.sec. 841(a)(1) and 846 by conspiring to distribute more than 300 tons of marijuana. The jury also found that Fischer had participated as a principal administrator, organizer, or leader of a CCE in violation of 21 U.S.C. sec. 848 (the "drug kingpin" statute), and assessed $30 million in criminal forfeitures against him. As required by the drug kingpin statute, the district court sentenced Fischer to life imprisonment. Fischer was also given a 35-year sentence, to run concurrently, on the conspiracy conviction. In United States v. Kramer, 955 F.2d 479, 492 (7th Cir. 1992), we affirmed Fischer's convictions and sentences in all respects.
A. Habeas Proceedings before the District Court
On April 21, 1997, Fischer filed a petition for writ of habeas corpus under 28 U.S.C. sec. 2255, raising the following claims: (1) the prosecutor lacked authority to bring the case; (2) the grand jury concurrence form was improper; (3) the amendments to the indictment were improper; (4) the trial judge had an actual conflict and should have recused himself; (5) his trial counsel was ineffective; and (6) the trial judge improperly admitted certain prejudicial evidence.*fn1 Although he had challenged the lack of jury unanimity with respect to his CCE conviction on direct appeal, he did not do so in his habeas petition. On March 12, 1998, the district court denied Fischer's habeas petition.
B. Fischer's Rule 35 Motion
On March 30, 1993, Fischer filed a Fed. R. Crim. P. 35 motion seeking to correct or reduce his sentence. In 1997, relying on the Supreme Court's then-recent decision in Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), the district court granted Fischer's motion in part and denied it in part. In Rutledge, the Supreme Court held that a sec. 846 conspiracy is a lesser-included offense of a sec. 848 CCE. See 517 U.S. at 307. Under Rutledge, convictions for both conspiracy and CCE offenses arising from the same facts constitute double jeopardy, and one of the convictions must be vacated. See id. In the present case, the district court vacated Fischer's conspiracy conviction and sentence, and refunded a fifty-dollar special assessment in accordance with Rutledge. See United States v. Fischer, 205 F.3d 967, 969 (7th Cir. 2000). The CCE conviction and life sentence remained unaltered. See id. Fischer appealed, arguing that the district court abused its discretion by vacating his conspiracy conviction and sentence instead of his CCE conviction and sentence. See id. at 970. On February 29, 2000, we affirmed the district court. See id. at 973.
During Fischer's Rule 35 appeal, Fischer attempted to challenge the lack of jury unanimity with respect to his CCE convictions pursuant to Richardson. In Richardson, the Supreme Court held that a jury must unanimously agree not only that a defendant charged under sec. 848 engaged in a continuing series of violations, but also must unanimously agree on which specific violations made up that continuing series. See 526 U.S. at 817-24. After granting the parties' request to brief the Richardson issue, we held that because Fischer's argument under Richardson attacked his underlying CCE conviction and not the actual sentence imposed, a Rule 35 motion was not the proper means by which to assert his claim. See 205 F.3d at 972. We concluded by noting that such challenges to a conviction should be raised under 28 U.S.C. sec. 2255, not under Rule 35. See id.
C. Certificate of Appealability
After the district court denied Fischer's habeas petition on March 12, 1998, Fischer requested a certificate of appealability from the district court, which denied that request on March 28, 1998. On April 10, 1998, Fischer sought a certificate of appealability from this court for the claims raised in his habeas petition--which did not include a challenge to the lack of jury unanimity. On April 26, 2000, Fischer renewed his motion for a certificate of appealability and petitioned to amend his application for a certificate of appealability to include a Richardson claim. We denied a certificate of ...