G. THOMAS PORTEOUS, U.S. District Judge.
Be tore the Court is a petition by Kimia Johnson to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Having considered the petition, the record and the applicable law, the Court hereby DENIES the Petitioner's request.
BACKGROUND
The Petitioner, Kimia Johnson was indicted for one count of possession with intent to distribute cocaine base ("crack") in violation of Title 21, United States Code, Section 841(a)(1) and one count of conspiracy to possess with the intent to distribute cocaine base in violation of Title 21 United States Code. Section 846. The petitioner was advised, during his arraignment and at his rearraignment. that the statutory sentencing range of 10 years to life imprisonment applied in this case. Johnson pled guilty as charged on January 14, 1998, and signed a factual basis that outlined his criminal conduct and the amount and type of drugs that were seized by law enforcement officials. A Pre-sentence Report was prepared, and Johnson did not object to the Report. On April 8, 1998, Johnson was sentenced to 262 months in prison, placed on five-years supervised release following his release from prison, and ordered to pay $200 in special assessment fees. Johnson appealed, and on June 15, 1999, the Fifth Circuit dismissed Johnson's appeal as frivolous. On July 7, 1999, the Fifth Circuit issued its mandate. On September 21, 2001, Johnson filed this petition to vacate or correct his sentence pursuant to title 28, United States Code, Section 2255.
LAW AND ANALYSIS
The petitioner alleges that his sentence is in violation of the law set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum period must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Apprendi in inapplicable to Guidelines calculations that do not result in a sentence in a single count above the statutory maximum for that count.
Petitioner signed a factual basis admitting that the amount of cocaine base ("crack") involved in his offense of conviction was 57 grams. The maximum penalty for this quantity of cocaine base is imprisonment for life. Since petitioner's sentence of 262 months was not above the statutory maximum of Title 21, United States Code, Section 841(b)(1)(A)(iii) [10-life imprisonment], Apprendi is not applicable.
The Court notes that there is a question in the instant case as to whether petitioner is time-barred from raising the Apprendi claim, and whether Apprendi applies retroactively to claims raised on collateral review. However, because the Apprendi claim can be dismissed on the merits, the Court need not address the procedural aspects of this particular claim.
The Court finds no reason to grant this petition to vacate, set aside, or correct the sentence of the Defendant under 28 U.S.C. § 2255.
Accordingly, IT IS ORDERED that the Petitioner's request to vacate, set aside, or correct his sentence be, and the same is hereby DENIED.