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 Appeal from the United States District Court for the Eastern Rene Rodriguez, District of Wisconsin Petitioner-Appellant, No. 97 C 426 v. Thomas J. Curran, Judge. United States of America, Respondent-Appellee.

ORDER

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.