Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2006

USA v. Pray
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4372




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"USA v. Pray" (2006). 2006 Decisions. Paper 766.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 05-4372
                                   ________________

                           UNITED STATES OF AMERICA

                                            vs.

                                 WAYNE PRAY,
                                            Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. No. 88-cr-00175-01)
                    District Judge: Honorable Joseph A. Greenaway
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 5, 2006
             Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES

                                  (Filed: July 10, 2006)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

              Wayne Pray was convicted by a jury of conspiracy to distribute cocaine and

related crimes and sentenced in January 1990 to life imprisonment. We affirmed his

conviction in 1992. C.A. No. 90-5054 (August 31, 1992). After unsuccessfully seeking

relief under old Rule 35, in 1997 Pray filed a motion to vacate his sentence under 28
U.S.C. § 2255. The District Court denied the motion and we denied his request for a

certificate of appealability (C.A. No. 98-5032). We have since denied his application for

authorization to file a second section 2255 motion (C.A. No. 01-2644) and, most recently,

his motion to recall the mandate in 98-5032.

              Undeterred, Pray filed another Rule 35 motion challenging his conviction

and sentence. The District Court denied the motion because it declined to deem old Rule

35 applicable to Pray and because under subsequent versions of Rule 35 only the

government may move for reduction in sentence.

              We need not decide whether the court thereby erred because even if old

Rule 35 applies in this context, Pray’s claims fail.1 In his motion, Pray makes three

claims (two of which were the subject of his application to file a second section 2255

motion). First, he maintains that his sentence is unconstitutional pursuant to Apprendi v.

New Jersey, 

(2000). To determine whether Apprendi applies retroactively,

we follow our jurisprudence under 28 U.S.C. §§ 2254 & 2255. United States v. Woods,

, 676-678 (3d Cir. 1993). As we have held that Apprendi is not retroactive

to cases on collateral review, United States v. Swinton, 

(3d Cir. 2003), we

conclude that Pray is barred from presenting an Apprendi claim via Rule 35.

              In his remaining claims Pray alleges that his convictions under both 21




   1
    We have jurisdiction under 28 U.S.C. § 1291. Our review of the denial of a motion
under Rule 35 is plenary. United States v. Woods, 

, 673 (3d Cir. 1993).

                                               2
U.S.C. § 846 and 21 U.S.C. § 963 violate the Double Jeopardy Clause pursuant to

Rutledge v. United States, 

(1996), and that the District Court erred when

instructing the jury on the requirements for conviction under 21 U.S.C. § 848. Both

claims challenge his convictions rather than his sentence2 and, as such, they are not

properly the subject of a rule 35 motion: “as the Rule’s language and history make clear,

the narrow function of Rule 35 is to permit correction . . . of an illegal sentence, not to

re-examine errors occurring at the trial or other proceedings prior to the imposition of

sentence.” Hill v. United States, 

, 430 (1962); United States v. Smith, 

, 182 (3d Cir. 1988); United States v. Canino, 

(7th Cir.2000)

(applying this principle to a Rutledge claim).

              Accordingly, we will affirm the judgment of the District Court.




   2
     Although Pray styles these claims in terms of challenges to his sentence, it is plain
that his challenges are really to the convictions themselves. See United States v. Canino,

, 384 (7th Cir.2000).