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Rodriguez v. United States

April 11, 2002

RENE RODRIGUEZ, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 426--Thomas J. Curran, Judge.

Before Flaum, Chief Judge, and Coffey and Manion, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge.

As amended May 21, 2002. Petitioner-Appellant filed a petition for rehearing en banc on April 25, 2002. No judge in regular active service has requested a vote on the petition for rehearing en banc, and all of the judges on the panel have voted to deny rehearing. The petition is therefore DENIED.

RENE RODRIGUEZ, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 426--Thomas J. Curran, Judge.

Before Flaum, Chief Judge, and Coffey and Manion, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge.

 Argued September 26, 2001

In 1994, Rene Rodriguez received a life sentence after being convicted of conspiring to import and distribute over 1,000 kilograms of marijuana from Mexico to the United States. Rodriguez moved to have his sentence reviewed under 28 U.S.C. sec. 2255, claiming that he was denied his Sixth Amendment right to effective assistance of counsel. The district court denied Rodriguez's sec. 2255 application and he then filed a motion to amend the judgment. While this motion was pending, Rodriguez filed a motion to amend his habeas pleadings to include a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court subsequently denied both motions and granted Rodriguez a certificate of appealability limited to the ineffective assistance of counsel claim. He then petitioned this court to expand the issues upon which the certificate was granted to include his claim under Apprendi. We affirm the district court's denial of Rodriguez's sec. 2255 motion and deny his request to expand the certificate of appealability to include a claim under Apprendi.

I. Background

Rene Rodriguez was charged in a one-count indictment with conspiracy to deliver over 1,000 kilograms of marijuana from 1989 through 1992, in violation of 21 U.S.C. sec.sec. 841(a)(1) & 846. In 1994, a jury convicted Rodriguez and the district court sentenced him to life in prison without the possibility of parole because of the quantity of marijuana involved in the count of conviction and because of his prior convictions for drug trafficking offenses. See 21 U.S.C. sec. 841 (b)(1)(A).*fn1 At trial, the government presented evidence of his conspiracy that included recorded telephone conversations between him and his co-conspirators, phone records, and testimony of the co-conspirators. Rodriguez's theory of his defense was that he was not involved in the conspiracy, but was merely attempting to steal money from the drug traffickers. The issue of drug quantity was not submitted to the jury during his trial, but was instead determined by the court by a preponderance of the evidence to be over 1,000 kilograms. This court affirmed the conviction and the sentence in United States v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995), cert. denied, 517 U.S. 1174 (1996) (hereinafter Rodriguez I).

In Rodriguez I, we addressed Rodriguez's argument that the issue of drug quantity should have been submitted to the jury, and that the appropriate standard for determining drug quantity for sentencing purposes was beyond a reasonable doubt. See id. at 1322. We held that the district court, not the jury, should have decided drug quantity because it is not an element of the offense. Id. at 1317. This court also upheld the preponderance of evidence standard, noting that due process concerns were not implicated by the facts of that case where the Sentencing Guidelines incrementally increased time served based on drug quantity.*fn2 Id. at 1322-23.

On April 22, 1997, Rodriguez filed a motion for collateral review under 28 U.S.C. sec. 2255 alleging a variety of constitutional violations, including that he had been denied effective assistance of counsel. His sec. 2255 motion did notcontain any allegations concerning the constitutionality of the standard of proof used to determine the drug quantity at sentencing. Nor did it include an allegation that the district court erred in failing to submit the issue of drug quantity to the jury. Rodriguez's motion before the district court listed almost a dozen instances of counsel's alleged ineffectiveness, only two of which have been preserved for consideration in this appeal.*fn3 First, Rodriguez maintains that he involuntarily waived his right to testify in his own defense because his attorney incorrectly advised him that if he took the stand his prior convictions for drug trafficking would be entered into evidence. Second, he alleges that during closing argument, his counsel effectively pleaded him guilty by improperly admitting that Rodriguez did possess, and agreed to deliver, ten ounces of marijuana. On December 31, 1998, without holding an evidentiary hearing concerning these issues, the district court entered judgment denying Rodriguez's sec. 2255 motion.

After the district court denied his habeas petition, Rodriguez filed a motion on January 14, 1999, to amend the denial of his habeas application under Fed. R. Civ. P. 59(e). The motion alleged a variety of errors in the transcriptions of surveillance tapes that were presented to the jury. Eleven months later, on December 6, 1999, while the motion to amend the judgment was still pending, Rodriguez filed a "Motion for Leave to Supplement/Amend the Pleadings." In this motion, he petitioned the district court to allow him to include a claim in his sec. 2255 petition that the issue of drug quantity should have been determined by the jury on a reasonable doubt standard.*fn4 Rodriguez again petitioned the court to amend in February 2000 as a result of the Supreme Court's grant of certiorari in Apprendi v. New Jersey, 530 U.S. 466 (2000). Ultimately, in August 2000 the district court denied the Rule 59 motion, along with the petitions to amend. The district court then issued a certificate of ...


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