That is, tolling is proper only if it would either be (1) unreasonable "to expect a patient who is in the continuing care of a doctor to discover that the doctor's acts may be the cause of his injuries" or (2) unreasonable to have required the plaintiff "to interrupt [his doctor's] corrective treatment in order to commence legal proceedings." 33). § 924(c) where the indictment failed to allege the type of firearm used was plain error, but finding no prejudice), cert. On October 19, 2000, without seeking a response from the government, the magistrate judge to whom McCoy's motion was referred recommended that the district court deny McCoy's § 2255 petition on the ground that "[t]he Eleventh Circuit Court of Appeals has held that Apprendi has not been made retroactive to cases on collateral review," citing In re Joshua, 224 F.3d 1281 (11th Cir.2000). Judgment VACATED and case REMANDED for further consideration in light of Sessions v. Dimaya, 584 U. S. ____ (2018). 24, 2007); McCoy v. Miner, 245 Fed. at 27. United States Court of Appeals, Eleventh Circuit.https://leagle.com/images/logo.png. NACDL’s mission is to serve as a leader, alongside diverse coalitions, in identifying and reforming flaws and inequities in the criminal justice system, and redressing systemic racism, and ensuring that its members and others in the criminal defense bar are fully equipped to serve all accused persons at the highest level. 1060); see also Tyler v. Cain, ___ U.S. ___, 121 S.Ct. 1254(1). 601, 82 L.Ed. Bousley, 523 U.S. at 623, 118 S.Ct. 16, 20) that the court of appeals' decision not to apply the continuing treatment doctrine in this case conflicts with the Second and Fourth Circuits' decisions in Ulrich and Otto. As such, it is subject neither to procedural default nor Teague nonretroactivity analysis on collateral review, and a habeas petitioner who established a valid Apprendi claim would be entitled to relief, i.e., to be resentenced in accordance with § 841(b)(1)(C).16.
1112 qualifies as a crime of violence under the force clause of 18 U.S.C. McCoy contends that "cause" exists because the basis for his Apprendi claim was not known until after his conviction became final, since drug quantity was considered a mere sentencing factor until Apprendi. Likewise, a "court cannot permit a defendant to be tried on charges that are not made in the indictment against him." 14-2741 CHRISTOPHER H. MCCOY, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. Thus, following the Supreme Court's, other circuits', and our precedent, we conclude that a claim of Apprendi error is not jurisdictional. Essentially, petitioner's claim in this case is that, despite his failure to allege in his administrative claim an injury based on post-amputation medical treatment, the courts below erred in determining that post-amputation treatment did not implicate the continuing treatment doctrine. Teague, 489 U.S. at 310-13, 109 S.Ct.
3. App. App. Id. Id. 1246). Aug. 20, 2007). 2000) ("If the district court acts beyond its jurisdiction by trying, accepting a guilty plea from, convicting, or sentencing a defendant for an offense not charged in the indictment, this Court must notice such error and act accordingly to correct it, regardless of whether the defendant has raised the issue.").11. at 1080-1081.
Id. App. (emphasis in original).13. 194 (3 rd Cir. On October 3, 2000, McCoy filed a motion to vacate pursuant to 28 U.S.C. For the reasons so clearly expressed by Judge Parker in United States v. Clark, 260 F.3d 382 (5th Cir.2001) (Parker, J., dissenting),20 I believe the decision in Apprendi creates a new substantive rule of law and is therefore not subject to Teague.
BRIEF FOR THE UNITED STATES IN OPPOSITION. United States v. Swindall, 107 F.3d 831, 835 (11th Cir.1997) (quoting Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. The criminal defense attorney tasked with defending such a case has to be prepared to not only show reasonable doubt, but to answer this question: If it did not happen, how is it that the child believes it did happen? United States v. Martinez, 258 F.3d 582, 587 (7th Cir.2001) (quoting United States v. Patterson, 241 F.3d 912, 914 (7th Cir. A jurisdictional defect is one that "strip[s] the court of its power to act and ma[kes] its judgment void." On September 19, 1996, while his left leg was being treated, petitioner filed an administrative claim seeking damages for the amputation of his right leg. As such, it is consistent with the Eighth Circuit's requirement, challenged here, that the continuing treatment must involve some negligence in order for tolling to be appropriate. An indictment charged McCoy with conspiracy to possess with intent to distribute "a Schedule II narcotic controlled substance, that is, a mixture and substance containing a detectable amount of cocaine in the form of cocaine base, commonly known as crack cocaine," in violation of 21 U.S.C.
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