Opinion
1:02-CV-1368 (LEK).
October 13, 2004
DECISION AND ORDER
For printed publication in the Federal Reporter.
I. BACKGROUND
On July 12, 2001, Petitioner Terrence Anderson ("Petitioner") pled guilty to distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1), which makes it "unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1) (2002). As a result of this violation, on November 8, 2001, Petitioner was sentenced to 70 months imprisonment, followed by 5 years of supervised release. Petitioner now files a petition, pursuant to 28 U.S.C. § 2255, seeking to vacate his conviction and sentence.
(a) Basis of the instant petition
First, Petitioner contends that his attorney, Terrence Kindlon, failed to provide effective assistance. Petitioner relies onStrickland v. Washington, 466 U.S. 668 (1984), which requires satisfaction of a two prong test to demonstrate counsel's ineffective assistance.
To satisfy the first prong requires a "show[ing] that counsel's performance was deficient[,]" which means "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In support of the first prong, Petitioner states that Mr. Kindlon's assistance was deficient because he failed to inform the Petitioner that the court lacked subject matter jurisdiction over his violation because "21 U.S.C. Food Drugs, is not positive law."
To satisfy the second prong requires a petitioner to demonstrate "that the deficient performance prejudiced the defense . . . [by] showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. In support of the second prong, Petitioner states that Mr. Kindlon provided ineffective assistance "by allowing the District Court Judge Khan [sic] to pass judgement [sic] on the petitioners [sic] case that was lacking subject matter jurisdiction, and for non enacted positive law 21 U.S.C. Food Drugs." As a result, Petitioner states that he was substantially prejudiced.
Second, Petitioner argues that his conviction is unlawful because the court lacked subject matter jurisdiction because "21 U.S.C. Food and Drugs was not enacted in positive law."
II. DISCUSSION
Although Petitioner states that he received ineffective assistance of counsel and that his conviction was unlawful, the legal rationale he puts forth for both claims is the same, namely, that "21 U.S.C. Food and Drugs was not enacted in positive law." Consequently, the Court need only address this one issue.
1 U.S.C. § 204(a) states, "The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States . . . Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States." 1 U.S.C. § 204(a) (2004). When a title has not been enacted into positive law, the underlying legislation of that title, as set forth in the Statutes at Large, provides legal evidence of the law. 1 U.S.C. § 112 (2004); see also United States Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 n. 3 (1993). Therefore, where there is an inconsistency or conflict between the Code and the Statutes at Large, the Statutes at Large prevail over the Code. See United States v. Welden, 377 U.S. 95, 98-99 n. 4 (1963); Stephan v. United States, 319 U.S. 423, 426 (1943); United States Nat'l Bank of Or., 508 U.S. at 448. In fact, "Congress's failure to enact a title into positive law has only evidentiary significance and does not render the underlying enactment invalid or unenforceable." Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir. 1985) (citing 1 U.S.C. § 204(a) (1982)).
In order to enact a statute into positive law, Congress must specifically approve the language of the codification submitted to it by the Office of the Revision Counsel. If Congress enacts a title of the Code into positive law, it "puts its authoritative imprimatur on the language appearing in that particular title of the Code." Wash.-Dulles Transp. Ltd. v. Metro. Wash. Airports Auth., 263 F.3d 371, 378 n. 2 (4th Cir. 2001); LaCrosse v. Commodity Futures Trading Comm'n, 137 F.3d 925, 927 n. 1 (7th Cir. 1998). Only about half of the 50 titles of the Code have been enacted into positive law. 1 U.S.C. § 204 note (United States Code Titles as Positive Law).
The title at issue here, Title 21, Food and Drugs, has not been enacted into positive law. See 1 U.S.C. § 204 note (United States Code Titles as Positive Law, not listing Title 21);Henriquez v. United States, 2003 WL 21242722, *2 (S.D.N.Y. 2003); United States v. Almonte-Nunez, 1999 WL 1215922, *1 (D.C. Cir. 1999). However, the text of the section in question, 21 U.S.C. § 841(a), is identical to that of the original statute, and "the fact that Congress has not enacted Title 21 into positive law has no bearing on this Court's jurisdiction in this matter."Henriquez, 2003 WL 21242722 at *2; see also Pub.L. No. 91-513, 84 Stat. 1260 (1970). In United States v. Zuger, the defendant claimed precisely what the Petitioner here now claims — that unless Congress enacts a title of the United States Code into positive law, the title and all provisions contained therein are of no legal force. 602 F. Supp. 889, 891 (D. Conn. 1984). The court rejected this argument, concluding that "the failure of Congress to enact a title as such and in such form into positive law . . . in no way impugns the validity, effect, enforceability or constitutionality of the laws as contained and set forth in the title." Id. at 891-92; see also Henriquez, 2003 WL 21242722 at *2.
Specifically, at least one other court, when faced with the question of whether 21 U.S.C. § 841 is valid despite the fact that it has not been enacted into positive law, clearly stated that the "argument is frivolous." See Almonte-Nunez, 1999 WL 1215922 at *1.
As Title 21, United States Code, § 841, was enacted by Congress as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236 (codified as amended at 21 U.S.C. § 801 et seq.), it is the law of the United States. See, e.g., Proyect v. United States, 101 F.3d 11, 12 (2nd Cir. 1996) (noting enactment and constitutionality of this statute); United States v. Terry, 1999 WL 20911, *3 (N.D.N.Y. 1999) (holding that 21 U.S.C. § 841 is constitutional, a violation of which is an offense against the United States, and Title 18 U.S.C. § 3231 provides the district courts with original jurisdiction "of all offense against the laws of the United States.").
Enactment of Title 21 U.S.C. into positive law has no impact on this Court's jurisdiction nor the validity of the criminal conviction. Consequently, Petitioner's arguments of ineffective assistance of counsel and unlawful conviction, based solely on the reason that Title 21 of the Code has not been enacted into positive law, clearly fail.
III. CONCLUSION
Accordingly, it is hereby
ORDERED, that Anderson's petition is DENIED; and it is further
ORDERED, that the Clerk serve a copy of this order on all parties.