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August 25, 2003


The opinion of the court was delivered by: Charles Norgle, District Judge


Before the court is Horacio Caballero's motion to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. For the following reasons, the motion is denied.


In 1994, Caballero participated in a large scale conspiracy to distribute massive amounts of cocaine in Northern Illinois. Beginning in April 1994, a joint federal and local drug task force infiltrated the conspiracy. On July 18, 1994, undercover informants and officers set up a transaction where undercover agents were to purchase 350 kilograms of cocaine at a price of $20,000.00 per kilogram. Caballero's role in the transaction was to receive $7,000,000 in an apartment in Justice, Illinois, while some of his co-conspirators delivered 350 kilograms of cocaine to the undercover agents in Rockford, Illinois. After this transaction, Caballero and six of his co-conspirators were arrested. [ Page 2]

In August of 1994, the undercover agents completed another transaction, purchasing over 200 kilograms of cocaine. A subsequent search revealed an additional 236 kilograms of cocaine.

The Government filed its indictment against Caballero and ten co-conspirators on December 6, 1994. Caballero was charged with two counts: (1) conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute approximately 350 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). Some of the co-conspirators plead guilty, while Caballero and others went to trial on October 2, 1995. The case went to the jury on November 2, 1995, and the jury returned guilty verdicts the following day. On April 15, 1996, Caballero was sentenced to concurrent sentences of 260 months for each count.

Caballero filed a timely notice of appeal on April 24, 1996, but then voluntarily dismissed the appeal, pursuant to Federal Rule of Appellate Procedure 42(b), on June 26, 1996. Thereafter, Caballero took no additional steps to directly or collaterally challenge his conviction, until he filed the present motion. Caballero mailed the present motion to the Clerk of the District Court on June 19, 2001, and the motion was filed on June 26, 2001.

Caballero's motion raises three arguments, all of which arise from the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The court consolidates and interprets Caballero's arguments as: (1) the court lacked jurisdiction to impose a sentence under 21 U.S.C. § 841 (b)(1)(A) in the absence of jury findings regarding drug type and quantity; (2) the court violated the Due Process Clause of the Fifth Amendment by imposing a sentence based on facts not found by the jury; and (3) Apprendi had rendered the sentencing guidelines unconstitutional.

The Government argues, and the court agrees, that all of these claims are procedurally time-barred. [ Page 3]


A. Standard of Review

Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct his sentence. The relief is available only in limited circumstances, such as where an error is jurisdictional or of Constitutional magnitude. See Oliver v. United states, 961 F.2d 1339, 1341 (7th Cir. 1995). Section 2255 motions are subject to various bars, including that of procedural default. See Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989) (stating that "a district court cannot reach the merits of an appealable issue in a section 2255 proceeding unless that issue has been raised in a procedurally appropriate manner"). One such bar was provided for in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective April 24, 1996. See Pub. L. 104-132, Title I, § 105, 110 Stat. 1220. The AEDPA imposes a one-year limitations period on collateral attacks. See 28 U.S.C. § 2255 ¶ 6 (1-4). Paragraph 6 of § 2255 provides:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral ...

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