Rene Rodriguez v. United States of America

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
May 21, 2002
Before
Hon. Joel M. Flaum, Chief Judge
Hon. John L. Coffey, Circuit Judge
Hon. Daniel A. Manion, Circuit Judge
No. 00-3242
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.
O R D E R
The opinion of this court issued on April 11, 2002 is amended as follows:
A footnote is added at the end of the carryover paragraph at the top of p.13 of the slip opinion, to read:
Rodriguez's Apprendi claim does not benefit from our recent decision in Ashley v. United States, 266
F.3d 671 (7th Cir. 2001), where we held that the one-year statute of limitations in §2255 does not
apply to Apprendi claims brought in initial motions for collateral review. Rodriguez’s Apprendi claim
is not an initial motion for collateral review as it was raised in post-judgment motion to amend his
initial claim which the district court denied in a proper exercise of discretion. Ashley does not apply
in this case because Rodriguez’s Apprendi claim is a successive collateral attack triggering AEDPA’s
gate-keeping functions. See 28 U.S.C. § 2255, ¶ 8.1.
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.

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