Padilla-Duran

MEMORANDUM **

Petitioner-appellee Padilla-Duran (“Padilla”) was convicted in 1993 of several offenses based on his involvement in a conspiracy to import marijuana into the United States. At sentencing, the district court determined the quantity of drugs attributable to Padilla and sentenced him to 235 months’ imprisonment. Padilla’s conviction and sentence were affirmed by this court on direct appeal. Padilla then filed his first motion under 28 U.S.C. § 2255 , which was denied by the district court, and the denial was affirmed by this court. After the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), Padilla requested and received permission from this court to file a successive motion raising an Apprendi claim. Padilla then filed the present successive motion, which was granted by the district court on April 17, 2001. The government appeals.

Under 28 U.S.C. §§ 2255 and 2244, a successive motion must be dismissed unless it is based on newly discovered evidence demonstrating the petitioner’s innocence, or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously…