Doward v. USA CV-01-52-B 04/04/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John R. Doward

v. Civil No. 01-52-B Opinion N o . 2001DNH071 United States of America

O R D E R

John Doward seeks relief pursuant to

. He

argues that the court improperly enhanced his statutory maximum

sentence pursuant to

(e). His claims depend upon

the Supreme Court’s decision in Apprendi v . New Jersey,

(2000).

I assume without deciding that: (1) Doward’s claims are not

barred by the statute of limitations that governs § 2255 motions

because he filed his motion within one year of “the date on which

the right asserted was initially recognized by the Supreme Court

. . . and made retroactively applicable to cases on collateral

review,”

; and (2) Doward can establish “cause

and prejudice” that excuses his failure to raise his claims on

direct appeal. See Sustache-Rivera v . United States,

, 17-18 (1st Cir. 2000), cert. denied,

(Mar. 1 9 ,

2001). Nevertheless, I reject Doward’s claims because they are

defective on their merits.

The Supreme Court held in Apprendi that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

(emphasis added). The Court did not overrule

its prior decision in Almendarez-Torres v . United States,

(1998), which held that, where provided by statute, a

judge may enhance a defendant’s sentence based upon prior

convictions which have not been presented to a jury and proved to

the jury’s satisfaction beyond a reasonable doubt. See

; see also Apprendi,

(declining to

revisit the validity of Almendarez-Torres). Therefore, as both

the Tenth and the Eleventh Circuit Courts of Appeal have

recognized, an enhancement of a statutory maximum sentence based

on

(e) that results from prior convictions is

governed by Almendarez-Torres rather than Apprendi. See United

States v . Thomas, N o . 99-12367,

, *5 (11th Cir.

Feb. 2 3 , 2001); United States v . Dorris,

, 587-88

-2- (10th Cir. 2000).

I enhanced Doward’s sentence pursuant to

(e)

based upon several prior convictions. Under prevailing Supreme

Court precedent, the applicability of this enhancement is a

matter for the judge rather than the jury. Petition dismissed.

SO ORDERED.

Paul Barbadoro Chief Judge

April 4 , 2001

cc: John R. Doward, pro se Peter E . Papps, Esq.

-3-