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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:96-cr-00020-MP-AK

JOHN CALVIN EVERETT,

Defendant.

___________________________/

O R D E R 

This matter is before the Court on Doc. 454 and Doc. 455, two motions for

reconsideration. Previously, at doc. 278, the Defendant filed a motion under § 2255, attacking

his conviction on various grounds. Later, in doc. 281, the defendant filed a motion to

supplement his § 2255 petition, seeking to add arguments based on Apprendi v. New Jersey, 530

U.S. 466 (2000). The Magistrate Judge entered an order at doc. 288, using a Referral & Order

form, allowing the Defendant to supplement his § 2255 motion:

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Case No: 1:96-cr-00020-MP-AK

The Magistrate Judge also entered doc. 289, requiring the government to respond to the

newly supplemented § 2255 motion. The government did so, and the defendant filed two

replies. Eventually, the Magistrate Judge entered an Report and Recommendation, doc. 361,

recommending denial of the § 2255 petition. Specifically, among other arguments, the

Magistrate Judge addressed the Defendant's supplement, filed as an attachment to doc. 281:

In his supplement, Defendant asserts that the jury failed to find the amount of

drugs beyond a reasonable doubt as required by Apprendi v. New Jersey, 530

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Doc. 281. He argues that drug

type and quantity are elements of the offense, and the failure to allege them is

jurisdictional. Id., p. 8.

Doc. 361, p. 8. The Magistrate Judge recommended rejecting the Apprendi claim because that

case does not apply retroactively. Also, in the order adopting the Report and Recommendation,

doc. 375, the Court specifically addressed the issues raised in the supplement by adopting the

Magistrate Judge's conclusion that Apprendi cannot be applied retroactively.

In his motions for reconsideration, however, the Defendant argues that either (1) the

Magistrate Judge's order on the Referral & Order form at doc. 288 held that "THE [RELIEF]

REQUESTED (in the supplement) IS GRANTED" -- and so Defendant should be immediately

released -- or (2) the issues raised in the supplement to the § 2255 motion have never been

addressed. Defendant is wrong on both counts.

First, as shown in the excerpt of doc. 288 on page one of this order, the Magistrate Judge

did not grant the relief "in the supplement," he merely granted permission for the Defendant to

supplement the § 2255 motion. Whether the relief contained in the supplement would later be

granted was left for consideration. Otherwise, if the Magistrate Judge had already granted the

relief sought in the supplement, then the order at doc. 289 requiring the government to respond

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to the supplement would make no sense. Second, as shown above, the Magistrate Judge and this

Court specifically address the Apprendi issue in the Report and Recommendation and the Order

adopting it. Thus, there is nothing to reconsider. The Defendant still may not collaterally attack

his sentence using Apprendi and no order of the Court or the Magistrate Judge has said

differently. Accordingly, it is hereby

ORDERED AND ADJUDGED:

The motions to reconsider, docs. 454 and 455, are denied.

DONE AND ORDERED this 13th day of October, 2006

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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