The opinion of the court was delivered by: William W. Caldwell, District Judge.
In July 1992, after he pled guilty to conspiring to distribute cocaine
in violation of 18 U.S.C. § 846, this court sentenced the defendant,
Julius John Pinkston, to 248 months in prison, later reduced to 198
months for substantial assistance in the prosecution of a codefendant.
Pinkston has filed a pro se motion under 28 U.S.C. § 2255 to
vacate his conviction and sentence, his first attempt at such
postconviction relief. It is based on Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).*fn1
The motion presents the following grounds. First, the Defendant's
guilty plea was not knowing and intelligent because the indictment did
not charge him with being an organizer or a leader in the conspiracy, a
factor used to increase his sentence under U.S.S.G. § 3B1.1, thus
leaving him ignorant of an element of the offense at the time of his
plea. Second, the indictment was also defective because it failed to
mention a drug quantity. Third, the drug quantity was determined by the
court at a sentencing hearing by the preponderance of the evidence rather
than by a jury using the reasonable-doubt standard. Fourth, section 841
is unconstitutional on its face. In addition to the Apprendi claims, the
Defendant also seems to attack the section 3B1.1 enhancement on the
We will deny the motion because, as the government argues, it is
time-barred. We also believe that, even if we did reach the Apprendi
claims, we could not grant relief because Apprendi does not apply
retroactively in collateral proceedings and because Pinkston stipulated
to a drug quantity that under Third Circuit law defeats his Apprendi
In November 1989, the Defendant and co-defendants were indicted under
21 U.S.C. § 846 for conspiracy to distribute thirty kilograms of
cocaine. They were also charged with four counts of the substantive
offense of distributing cocaine in violation of 21 U.S.C. § 841(a)(1).
The Defendant took no direct appeal. On June 22, 1993, the court
reduced the sentence to 198 months pursuant to the government's motion
under Fed. R. Crim. P. 35(b) for substantial assistance. The Defendant
then moved for reconsideration seeking a further reduction which we
denied on October 15, 1993.
On November 9, 1998, Pinkston again moved for a downward departure
based on information he had allegedly supplied to federal authorities in
Michigan. On December 16, 1998, we denied the motion, ruling that we had
no authority to reduce a sentence on a defendant's motion. On March 1,
1999, we denied a motion to reconsider that order. On July 30, 1999, the
Third Circuit dismissed Pinkston's appeal because it was untimely filed.
On January 30, 2001, the Defendant filed the current 2255 motion,
raising claims based on Apprendi.