
    Tony Lamar MENEFIELD, Petitioner, v. UNITED STATES of America, Respondent,
    No. 5:01-CV-468.
    United States District Court, N.D. New York.
    March 4, 2002.
    
      Tony Lamar Menefield, USP Atlanta, Atlanta, GA, Petitioner pro se.
    Joseph A. Pavone, United States Attorney for the Northern District of New York (Brenda K. Sannes, AUSA, Of Counsel), Syracuse, NY, for Respondent.
   MEMORANDUM DECISION AND ORDER

MUNSON, Senior District Judge.

Petitioner moves pursuant to 28 U.S.C § 2255, to vacate, set aside or correct the sentence of imprisonment he received on November 5, 1997, in the United States District Court for the Northern District of New York.

On April 16, 1997, following a jury trial, petitioner was convicted of conspiracy to distribute cocaine and/or cocaine base in (crack) violation of 21 U.S.C. § 846 and § 846(a)(1). On November 5, 1997, petitioner was sentenced to a period of 360 months imprisonment and ten years supervised release. Petitioner’s conviction was affirmed on April 13, 2000, United States v. Giles, et al., 2000 WL 424142, 210 F.3d 356 (2d Cir.2000)(Table).

Petitioner contends that his sentence should be vacated and he should be resen-tenced in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court ruled that, as a matter of due process, any factor which increases a sentence beyond the statutory minimum is an element of the offense rather than a mere sentencing factor, the existence of which must be submitted to a jury and proved beyond a reasonable doubt. Petitioner claims that at least part of his 151 month sentence was due to factors that should have been proven as elements of the offense under the Apprendi standard. As a result he seeks reduction of his sentence and supervised release term under the new due process standard.

Respondent maintains that petitioner’s contentions are without merit because his Apprendi or Apprendi type argument has been procedurally defaulted because it was not properly raised at trial or on direct appeal, and, even if it had been raised, the holding in Apprendi cannot be applied retroactively to petitioner’s case on collateral review.

A petitioner’s failure to raise a claim of error at trial or on direct appeal constitutes a procedural default that bars collateral review absent a showing of both good cause to excuse the default and ensuing prejudice. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Douglas v. United States, 13 F.3d 43, 46 (2d Cir.1993). The lack of precedent for a position is different from cause for failing to make a legal argument. Even if the law is against a contention, a party must make the argument to preserve it for later consideration Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Engle v. Isaac, 456 U.S. 107 at 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783. (1982). Cause means some impediment, and petitioner does not contend that any outside force impeded his legal defense in 1997. The lack of any reasonable basis for a claim may constitute cause, Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), but the foundation for Apprendi was laid quite some time ago. Other defendants have been advocating Apprendi type arguments ever since the Sentencing Guidelines came into being, and in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Court addressed the merits of a comparable argument. In fact, the touchstone of the Apprendi reasoning appeared at least as early as 1970 in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Moreover, before the Apprendi decision was announced, petitioner could have used the eases later cited in the Supreme Court’s Apprendi opinion to formulate an Apprendi style argument for use in his direct appeal.

It is undisputed that petitioner did not raise the Apprendi argument he now advances at any time prior to the filing of this motion, and he does not claim that some outside force impeded his legal defense, therefore, he has not established cause, and because petitioner has failed to show any cause for excusing his procedural default, the court need not consider the issue of prejudice. Smith v. Murray, 477 U.S. at 527, 533, 106 S.Ct. 2661, at 2665, 91 L.Ed.2d 434 (1986).

In considering cause and prejudice, the court has assumed that Apprendi applies here in the first place. Apprendi put forth a new rule of constitutional law, and its application to the instant case would require using it as the foundation for a retroactive collateral review. Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), few constitutional arguments apply retroactively on collateral attack even if properly preserved. Teague established that a new rule cannot constitute the basis for retroactive collateral review unless it places an entire category of conduct beyond the reach of criminal law, forbids the use of a certain kind of punishment for a class of defendants, or it is essential for the fundamental fairness of the proceeding. Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir.1997)(citing Sawyer v. Smith, 497 U.S. 227, 241-42, 110 S.Ct. 2822, 111 L.Ed.2d 193), cert. denied, 527 U.S. 1021, 119 S.Ct. 2365, 144 L.Ed.2d 770 (1999). Apprendi surely did not decriminalize a category of conduct or prohibit imprisonment of drug conspirators. The shift of the determination of drug quantity or other facts permitting sentences above otherwise statutory maximum from the judge to the jury was not necessary to the fundamental fairness of criminal proceedings, as verified in Bilzeri-an that the shift of the determination of materiality in false statement cases, see 18 U.S.C. § 1001, from the court to the jury did not come within Teague’s exceptions. 127 F.3d at 241. Hence, as many circuits have already held, Apprendi cannot buttress a retroactive collateral review. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001); United States v. Moss, 252 F.3d 993, 1001-02 (8th Cir.2001), cert. denied, — U.S.—, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002); United States v. Sanders, 247 F.3d 139, 151 (4th Cir.2001), cert. denied, — U.S.—, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir.2000); and the Second Circuit has stated, “[t]o date, the Supreme Court has not offered any guidance on whether Apprendi has retroactive application to cases on collateral review. And this court has not yet ventured where the Supreme Court has thus far feared to tread.” Santana-Madera v. United States, 260 F.3d 133, 141 (2d Cir. 2001), cert. denied, — U.S. —, 122 S.Ct. 817, 151 L.Ed.2d 701 (2002).

Accordingly, petitioner’s motion to vacate, set aside or correct his sentence of imprisonment is DENIED.

IT IS SO ORDERED  