Free Reply to Response - District Court of Connecticut - Connecticut

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{ ¢ ` = Case 3:00-cr-00069-AHN Document 230 Filed 12/27/2005 Page 1 of 3 mwiml
{ UNITED STATES DISTRICT COURT
{ DISTRICT or CONNECTICUT E
{ CLINTON COX,
{ _ _ I _ _ ZUH1 GEC 21- ID 11,: 51 {
Petitioner. Criminal No. 3.00—CR 69(AH ) I
UNITED STATES OF AMERICA, I {
Respondent: U {
REPLY TO GOVERNMENT'S RESPONSE TO NEW AUTHORITY CITED {
IN SUPPORT OF PETITIONER'S § 2255 MOTION {
Now comes, the Petitioner, Clinton Cox, pro-se (Hereinafter, {
I "Petitioner") and hereby submits the instant reply to the Government‘s {
l Response to New Authority Cited in Support of Petitioner's § 2255 {
= Motion. In support thereof, it is stated as follows: {
E The government opposes Petitioner's new authority cited in supe {
i port of his section 2255 motion to vacate, set aside or correct sen- {
{ tence by stating, Cord0ba—Murgas, "does not apply here." The dis— {
U trict court sentenced Petitioner within his statutory maximum set {
forth in section 8h1(b)(l)(A) (Government's Response, at page 2). {
Here, Petitioner contends that the error in Cordoba-Murgas, can {
‘ be viewed in one of two ways: (1) Either Petitioner was improperly {
sentenced to a greater penalty than the one authorized by the jury's
verdict for the crime of which he was justly convicted. That is,
a jury convicted him of conspiring to possess with the intent to
distribute and to distribute fifty grams — it was the judge who
found the aggravated crime of more than 50 grams. See United States
V. Crosby, 397 F.3d 103 (2nd Cir. 2005); and (2) as set forth in
Petitioner's § 2255 motion, "willful membership is a crucial element
of the charge of conspiring to possess with intent to distribute {
. I
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Case 3:00-cr-00069-AHN Document 230 Filed 12/27/2005 Page 2 of 3
l i
[ cocaine" see United States v. Velez, 652 F.2d 258 (1981). However, i
Petitioner's indictment did not allege he was a "wil1ing" partici- l
pant and that the conspiracy was "willful1y" formed. But, the jury Q
was instructed on these elements and submitted a unanimous verdict 3
that the Petitioner "willfully" conspired. As in Cordoba—Murgas, I
I (citing, United States v. Macklin, 523 F.2d 193, 196 (2nd Cir. 1975)), l
the instant case, involves a situation where the Grand Jury had re- i
I turned an indictment but the Court improperly extended its terms. %
i That is, Petitioner is convicted of a crime not charged in his \
% indictment. The indictment did not charge that Petitioner's con- Q
E duct was "willful." Thus, it is clear that the Grand Jury did not
a find he "willfu1ly" did anything. E
E Conclusionn
l In conclusion, Petitioner respectfully requests that this
% Honorable Court make the new authority a part of the record and {
E consider it in his pending § 2255 motion. `
F l
l Respectfully submitted, I
`
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J p Se _ cr 00069 AHN Document 230 _ Filed 12/27/2005 Page 3 of 3
i I CERTIFICATE OF SERVICE I i
I L Clinton Cox, pro-se ,herehy certifyltliatlhave served atrue l
" M i " " and correct cop;/··ot"tlie··foregoing: It I - - I I . I .. .. . /..e . r. ..._ so p_ __ _ p ___ _ x
"Reply to Government ' a Response to New Authority Cited in Support _
of Petitiorier‘s § 2255 Motion" _
Which is deemed tiled at the time it was delivered to prison authorities for forwarding to ‘
p the court, Houston vs. Lack, 101 L.Ed-2d 245 (1988), upon the court and parties to {
— litigation and! or his/her attorney(s) of record, by placing same in a sealed, postage l
1 U prepaid envelope addressed to: ...-· I I
. . . _ - 4/dma; A40 GF/ty I I - . . .
l _ ' Cjc·yr§“%A cts.! ; e; - l _ ` i
- Zatgtye//Ze ,£;16'A,l/afV¢/ i
I »5}»/, rim, paws I 1 I I i
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aud deposited same in tliellnited States Postal Mail at the United States Penitentiary, ‘ ‘
l A- · h . . i
Signed on this ZZ Oi day of Bc*@.e»~—l>~r”, p
_ Respectfully Submitted, p
A U mn I I i` -~- H i.. .. ...l 1; _ i _ _ _ _' g i
{ if ·» ' "'r l . ‘ · ` l
t I G. Henman, nm M,..,,,,, ‘ REG NO· l
p *’•¤i¤¤¤Z¤¤ bww Act¤1July7 1995 l
I as amended, tcadmlnlstaroathslw usb 4004). p I