               United States Court of Appeals
                                          For the Seventh Circuit
                                          Chicago, Illinois 60604

                                                May 21, 2002


                                                     Before

                                  Hon. Joel M. Flaum, Chief Judge

                                  Hon. John L. Coffey, Circuit Judge

                                  Hon. Daniel A. Manion, Circuit Judge


No. 00-3242                                                    Appeal from the United States
                                                               District Court for the Eastern
Rene Rodriguez,                                                District of Wisconsin
                              Petitioner-Appellant,
                                                               No. 97 C 426
        v.
                                                               Thomas J. Curran, Judge.
United States of America,
                              Respondent-Appellee.


                                                  ORDER

        The opinion of this court issued on April 11, 2002 is amended as follows:

        A footnote is added at the end of the carryover paragraph at the top of p.13 of the slip opinion, to read:

        Rodriguez's Apprendi claim does not benefit from our recent decision in Ashley v. United States, 266
        F.3d 671 (7th Cir. 2001), where we held that the one-year statute of limitations in §2255 does not
        apply to Apprendi claims brought in initial motions for collateral review. Rodriguez’s Apprendi claim
        is not an initial motion for collateral review as it was raised in post-judgment motion to amend his
        initial claim which the district court denied in a proper exercise of discretion. Ashley does not apply
        in this case because Rodriguez’s Apprendi claim is a successive collateral attack triggering AEDPA’s
        gate-keeping functions. See 28 U.S.C. § 2255, ¶ 8.1.

         Petitioner-Appellant filed a petition for rehearing en banc on April 25, 2002. No judge in regular
active service has requested a vote on the petition for rehearing en banc, and all of the judges on the panel have
voted to deny rehearing. The petition is therefore DENIED.
