Opinion
02-CV-6557 CJS (2255), 99-CR-6018 CJS
September 22, 2003
Terry A. Finley, pro se, White Deer, PA, for Petitioner
Bret A. Puscheck, Esq., NY, for Respondent
DECISION AND ORDER
I. INTRODUCTION
Now before the Court is a motion [# 41] by pro se plaintiff, Terry Finley ("petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Also before the Court is respondent United States of America's ("respondent") cross-motion [#53] to dismiss. For the reasons set forth below, the Court grants respondent's cross-motion to dismiss and denies plaintiff's § 2255 motion.
II. PROCEDURAL HISTORY
On March 2, 1999, a federal grand jury in the Western District of New York returned a six-count indictment against petitioner. Count I charged distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Counts II and IV charged possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Count III charged possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Counts V and VI charged possession of an unregistered and illegally modified shotgun in violation of 26 U.S.C. § 5822, § 5845(a)(1) and (2), § 5861(c) and (d), and § 5871.
On June 11, 1999, following trial on the indictment, a jury convicted petitioner on all six counts of the indictment. At the close of the government's proof, Dudley Bertram, Esq., assigned defense counsel, moved for a judgment of acquittal, which the Court denied. Defense counsel did not renew the motion for acquittal after petitioner testified.
On March 8, 2000, petitioner was sentenced by the Court to the custody of the Bureau of Prisons for 477 months: 57 months on Counts I, III, V, and VI to run concurrently, 120 months on Count II, and 300 months on Count IV, both to run consecutively. Additionally, petitioner was sentenced to a three-year term of supervised release with a $2,000 fine and special assessment of $600.
On July 21, 1999, petitioner filed a motion to terminate assignment of appointed counsel and for assignment of new counsel. The Court granted petitioner's motion on August 3, 1999, and Mark Hosken, Assistant Federal Public Defender, was assigned to represent petitioner on his appeal.
On March 17, 2000, petitioner filed a notice of appeal, raising four issues: (1) that the District Court erred in finding that Counts III and IV of the indictment were not multiplicitous; (2) that there was insufficient evidence on Counts II and IV for petitioner's conviction of possession of a firearm in furtherance of a drug trafficking crime in violation of § 924(c); (3) that the District Court erred in finding that petitioner's identification by an undercover police officer was confirmatory and, thus, erred in not conducting a hearing; and (4) that petitioner's trial defense counsel's performance was deficient, because he failed to renew his motion for acquittal at the close of petitioner's proof causing prejudice to petitioner.
On April 5, 2001, the United States Court of Appeals for the Second Circuit issued a mandate in which Counts I, II, III, V, and VI were affirmed, and Count IV was reversed. The Second Circuit remanded the case to this Court for re-sentencing on Count IV. On June 8, 2001, the Court re-sentenced petitioner to 177 months.
On October 29, 2001, petitioner filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner raises the following four grounds:
Ground A. "Was petitioner entitled to effective assistance of his trial, sentencing, and appellate counsel?[ ]". Ground B. "Is Count II duplicitous and thereby charges two (2) nonexistence [sic] crimes?[ ]"
Petitioner used double question marks at the end of the first, second and third issues presented in his memorandum of law, at 6.
Ground C. "Is 'constructive possession' an insufficient bases [sic] for a conviction of 'possession in furtherance of' a drug trafficking crime?[ ]".
Ground D. "Is weapon type still an offense element of 18 U.S.C. § 924(c)(1) after the 1998 amendment of same ( i.e. Is Castillo v. United States still good law?)"?
On December 12, 2002, respondent filed a cross motion to dismiss petitioner's § 2255 motion. Respondent raises three grounds in support of its motion:
(1) his claim that there was insufficient evidence to convict him of violating 18 U.S.C. § 924(c) was raised and decided by the Second Circuit Court of Appeals; (2) he failed to raise the claims regarding duplicity and ineffective assistance in his direct appeal; and (3) his ineffective assistance of appellate counsel claim lacks merit.
Resp't Mem. at 5.
III. FACTUAL BACKGROUND
From the evidence presented at petitioner's jury trial held before the Court in June, 1999, the Second Circuit stated that the jury could have found the following facts. United States v. Finley, 245 F.3d 1999, 201-02. In December of 1998, Rochester police officer, Frank Alvarado ("Alvarado"), made a "confirmatory" drug buy before executing a search warrant at 240 Berlin Street, Rochester, New York. Alvarado bought "two bags" of cocaine at the kitchen window from petitioner using "buy money," which had been photocopied beforehand so that serial numbers of the "buy money" could be used to differentiate between any other money confiscated upon the execution of the warrant. The two small bags sold to Alvarado contained .324 grams of cocaine. Soon after the transaction, other officers forcibly entered the house. They then discovered in the closet of the bedroom where petitioner was also found, 3.5 grams of cocaine in 19 small bags and they also discovered in the kitchen, under a pile of clothes, a sawed-off shotgun. Petitioner was taken into custody. Alvarado testified that from a distance of about fifty feet, he identified petitioner as the same person from whom he had previously purchased the two bags of cocaine. However, Alvarado also testified that he was near-sighted and that he was not wearing corrective lenses at the time of the transaction. At trial, other Rochester Police officers testified as to the execution of the warrant, the cocaine sold by Finley to Alvarado, the cocaine confiscated in the house, and the sawed-off shotgun.
IV. LEGAL STANDARDS
Section 2255 permits a federal prisoner to challenge the legality of his sentence on the ground that the sentencing court "was without jurisdiction to impose [the] sentence," or that the sentence itself "was imposed in violation of the Constitution or laws of the United States," was "in excess of the maximum authorized by law," or is "otherwise subject to collateral attack." 28 U.S.C. § 2255 (2003). The motion is to be made to the court that imposed the sentence prior to the expiration of a "1-year period of limitation" that runs from the latest of (1) the date on which the judgment of conviction becomes final, (2) the date on which an impediment to making a motion created by illegal governmental action is removed, (3) the date on which a new retroactive right is recognized by the Supreme Court, or (4) the date on which the facts supporting the claim presented could have been discovered through due diligence. Id. Although the statute refers primarily to the prisoner's "sentence" rather than to his conviction, challenges may be made under § 2255 to both sentences and convictions. See Daw's v. United States, 417 U.S. 333, 343-44 (1974).
While § 2255 is often referred to as a habeas corpus provision, such characterization is technically incorrect because, rather than authorizing the granting of a writ, the statute allows a federal court to consider a motion that is, in effect, a continuation of the underlying criminal proceeding. See 28 MOORE'S FEDERAL PRACTICE § 672.02[2][b] (3d ed. 1999). Similarly, although prisoners file motions rather than petitions to initiate § 2255 proceedings, their motion papers are generally referred to as petitions and the prisoners are referred to as petitioners. In the interests of conformity and convenience, this Court will refer to Terry Finley as "petitioner" and to the United States of America as "respondent." Inasmuch as petitioner is proceeding pro se, this Court will construe his allegations liberally. See Billy-Eko v. United States, 8 F.3d 111, 117 (2d Cir. 1993) (recognizing a "judicial interest in interpreting pro se pleadings liberally and in the interests of fairness to pro se litigants").
True habeus corpus relief for federal prisoners is available in 28 U.S.C. § 2241 (2003).
The Court can dismiss a § 2255 proceeding without conducting a hearing if the petition and the record "conclusively show" that the petitioner is not entitled to relief. 28 U.S.C. § 2255. However, if the petition and record reveal that the petitioner may be entitled to some form of relief, the Court must hold an evidentiary hearing on all of the petitioner's potentially meritorious arguments. See Ciak v. United States, 59 F.3d 296, 297 (2d Cir. 1995).
B. Cause and Prejudice
It is well established that if a petitioner fails to raise a claim on direct appeal, he is procedurally barred from raising that claim in a subsequent § 2255 petition, unless he can establish "cause and prejudice." Billy-Eko, 8 F.3d at 113-14; see also United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995). Cause "must be something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991). "Objective factors that constitute cause include interference by officials that makes compliance with the State's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel." McCleskey v. Zant, 499 U.S. 467, 494 (1991). The prejudice prong requires that the petitioner show not just that the errors "created a possibility of prejudice, but that they worked to his actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170(1982).
C. Ineffective Assistance of Counsel
As indicated above, generally a petitioner is procedurally barred from raising a claim in a § 2255 collateral attack that he did not raise in a direct appeal, unless he can establish cause and prejudice. See Billy-Eko, 8 F.3d at 113-14; see also Pipitone, 67 F.3d at 38. However, this general rule is limited in so far as failure to raise an ineffective assistance of counsel claim on direct appeal "should not necessarily be treated similarly to a failure to raise other constitutional claims." Billy-Eko, 8 F.3d at 114. Courts have previously allowed petitioners to bring unraised ineffective assistance claims in § 2255 petitions since, many times, a petitioner is represented by the same counsel at trial and on direct appeal. It would be unreasonable to expect counsel to raise an ineffective assistance claim with respect to his own performance at trial. Id. More significantly, however, ineffective assistance claims are usually grounded in errors of omission where "resolution of such claims often requires consideration of matters outside the record on direct appeal." Id.; see also United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990). However, an unraised ineffective assistance claim may be procedurally barred where: "the petitioner was represented by new appellate counsel at [sic] direct appeal, and (2) the claim is based solely on the record developed at trial." Billy-Eko, 8 F.3d at 115. The Second Circuit stated:
defendants should raise their claims of ineffective assistance at the earliest feasible opportunity. If the defendant has new appellate counsel on direct appeal, and the record is fully developed on the ineffective assistance issue, there is little reason to extend the defendant an unlimited opportunity to delay bringing the claim. Thus, in this narrow category of cases, but only in these cases, the petitioner must still show cause for not bringing the ineffective assistance claim on direct appeal, and prejudice resulting therefrom.Id.
For a petitioner to bring an ineffective assistance claim not raised on direct appeal, he must establish both elements of the test the Supreme Court set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must show that his counsel was deficient by demonstrating that: "(1) that counsel's performance 'fell below an objective standard of reasonableness,' and (2) that there is a 'reasonable probability' that, but for the deficiency, the outcome of the proceeding would have been different." McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (quoting Strickland, 466 U.S. at 688, 694 (1984)) (citations omitted).
D. Duplicity
"An indictment is duplicitous if it joins two or more distinct crimes in a single count." United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992) (citing United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)). When determining whether there are multiple separate offenses, or only one, the Court may consider "whether each provision in the count requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932).
E. Procedural Bar from relitigation
It is well established that a § 2255 petition cannot be used to "relitigate questions which were raised and considered on direct appeal." United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)). "Reconsideration is permitted only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal." Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980). Furthermore, new intervening law must "break new ground" or bring with it a "new obligation on the States or Federal Government." Sanin, 252 F.3d at 84 (quoting Teague v. Lane, 489 U.S. 288, 300 (1989)).
V. ANALYSIS
As discussed below, the arguments and submissions of petitioner in this case do not merit an evidentiary hearing. In that regard, as the Supreme Court held in United States v. Addonizio, 442 U.S. 178 (1979):
When Congress enacted § 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review. It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.Id. at 184.
A. Ineffectiveness of Counsel
Petitioner raises an ineffective assistance of counsel argument as Ground A in support of his motion to vacate pursuant to § 2255. On direct appeal, petitioner raised an ineffective assistance claim with regard to his trial counsel's performance. That claim was based on trial counsel's failure to renew his motion for acquittal at the close of the defendant's case. However, the present ineffective counsel claim is based on a different ground. Here, petitioner asserts that both his trial and appellate counsel were ineffective in so far as they allowed the prosecutor to proceed upon what petitioner alleges in Ground B to be duplicitous and nonexistent crimes.
With respect to petitioner's ineffective assistance claim against his trial counsel, the Court determines that petitioner is procedurally barred from raising such a claim. Applying the relevant law set forth above, petitioner did receive new counsel for his direct appeal. Furthermore, petitioner's ineffective assistance argument does not require consideration of matters outside the record developed at trial. The ineffective assistance claim centers on whether Count II was duplicitous. Resolution of this claim does not require resorting to matters outside the record. Therefore, appellate counsel could have raised this claim on appeal, and consequently petitioner's ineffective assistance claim is procedurally barred unless he can establish cause and prejudice. Billy-Eko, 8 F.3d at 113-14; see also Pipitone, 67 F.3d at 38.
In that regard, petitioner has failed to show cause and prejudice regarding this ineffective assistance claim. In any event, the Court finds, as discussed in the following section, that Count II is notduplicitous. Therefore, even if petitioner were able to establish cause, he would be unable to show actual prejudice since trial and appellate counsel's failure to raise the duplicity argument with respect to Count II, was not error. Since no actual prejudice could result, neither counsel committed any error in failing to raise the duplicity argument. Therefore, ineffective assistance claim in Ground A is procedurally barred.
B. Duplicity
In Ground B, petitioner asserts that Count II is duplicitous. Count II charged a violation of 18 U.S.C. § 924(c). Section 924(c)(1)(A), in relevant part, reads as follows:
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . . be sentenced to a term of imprisonment of not less than 5 years. . . .18 U.S.C. § 924(c)(1)(A) (2003). Petitioner cites to U.S. v. Pleasant, 125 F. Supp.2d 173 (E.D. Va. 2000), which held that "use or carrying of a gun during . . . and in relation to a . . . predicate crime" and "possessing a gun in furtherance of . . . the specified crime" are two separate offenses. Pleasant, 125 F. Supp.2d at 183. Following this, the Pleasant court found that § 924(c), charging both "use or carrying" and "possessing" under a single count, was duplicitous. Id.
"A count of an indictment should only be ruled impermissibly duplicitous when the policy goals underlying this doctrine are offended, i.e., 'if a general verdict of guilty might actually conceal contrary findings as to different alleged crimes, or if an appropriate basis for sentencing is not provided.'" United States v. Parker, 165 F. Supp.2d 431, 447 (W.D.N.Y. 2001) (quoting United States v. Margiotta, 646 F.2d 729, 732-33 (2d Cir. 1981)). In other words, since it is not clear from a general verdict of guilty whether a jury found a defendant guilty of one crime, the other crime, or both, a duplicitous charge runs the risk that part of a jury may find a defendant guilty of one crime while the rest of the jury finds him guilty of the other crime. Such a result could possibly infringe on a defendant's right to a unanimous verdict, and should be ruled impermissibly duplicitous. See United States v. Sturdivant, 244 F.3d 71, 75 (2d Cir. 2001); see also United States v. Murray, 681 F.2d 892, 896 (2d. Cir. 1980). However, in the case at bar, these policy goals are not offended. Therefore, Count II is not duplicitous. See Parker, 165 F. Supp.2d at 447. The jury instructions for Count II charged only possession of a firearm in furtherance of a drug trafficking crime, and did not include using or carrying as part of the charge. Count II of the jury charge was as follows:
[T]hat on or about December 22, 1998, in the Western District of New York, the defendant, Terry Finley, in violation of federal law, knowingly, willfully, and unlawfully, in furtherance of the crime charged in Count One, i.e., the unlawful distribution of cocaine base, did possess a firearm, namely, one Iver Johnson Champion Model 12 gauge shotgun, bearing the serial number 87192XH.
Trial Tr. at 585. A jury is presumed to follow the instructions they are given. See Daw's, 306 F.3d at 416. Therefore, petitioner's complaint that Count II was duplicitous and may have somehow resulted in a non-unanimous decision about whether he possessed the firearm, or used or carried the firearm, is meritless in light of the Court's clear and specific jury instructions.
C. Sufficiency of the Evidence for § 924(c)
As a third basis for his § 2255 motion, raised in Ground C, petitioner claims that constructive possession was insufficient to establish possession of a firearm in furtherance of a drug trafficking crime under § 924(c) in Count II. The Court determines that petitioner is procedurally barred from raising such an issue since it was already litigated on his direct appeal. See Sanin, 252 F.3d at 83. As previously stated, a petitioner may only relitigate in a § 2255 petition an issue previously raised and considered on direct appeal if there is a new intervening change in the law that imposes a "new obligation on the States or Federal Government." Id. at 84.
Here, the Second Circuit considered the issue of sufficiency of the evidence of petitioner's possession of a firearm in furtherance of a drug trafficking crime on his direct appeal, and held that it could be established by showing that petitioner "knowingly [had] the power and the intention at a given time to exercise dominion and control over an object," which in turn could be established by showing some "nexus between the firearm and the drug selling operation." Finley, 245 F.3d at 203 (citing United States v. Munoz, 143 F.3d 632, 637 n. 5 (2d Cir. 1998)). Further, the Second Circuit determined that "based on the evidence at trial, the jury could properly have found that Finley kept the shotgun for protection in proximity to the window from which he sold the drugs" and had "requisite control based on the evidence that Finley was conducting a drug dealing business by himself from the inside of the house." Id. at 204. Therefore, having already litigated the issue on his direct appeal, and in the absence of any relevant intervening change of law, petitioner is procedurally barred from raising the insufficiency of evidence claim as set forth in Ground C.
Furthermore, there is no intervening change of law that "would have exonerated [petitioner] had it been in force before the conviction was affirmed on direct appeal." Chin, 622 F.2d at 25. Petitioner cites to Bailey v. United States, 516 U.S. 137 (1995), which held that to establish "use" of a firearm under § 924(c), the government must show "active employment of the firearm" by a defendant. Id. at 144. However, Bailey's requirement to show "active employment" is not applicable to the case at bar, since, on Count II of the indictment, the Court instructed the jury only in regard to plaintiffs possession of a firearm in furtherance of a drug trafficking crime, not use of a firearm.
D. Sentencing Error
In Ground D, petitioner claims that Count II was facially deficient and his conviction on that count should be vacated. Petitioner cites to Castillo v. United States, 530 U.S. 120 (2000), which held that since the firearm type is an element of a separate offense, the jury charge must identify the specific firearm type, and a jury must find that element beyond a reasonable doubt. Id. at 123. Petitioner was convicted under Count II of possessing a short-barreled shotgun, which, pursuant to § 924(c)(1)(B(i), requires a term of imprisonment of no less than ten years. However, under § 924(c)(1), conviction of possession of a non-specified firearm results in an imprisonment term of no less than five years. Petitioner claims that since the jury charge failed to identify the firearm type of which he was convicted, Count II was facially deficient and should be vacated.
Petitioner is procedurally barred from raising this last issue since it was already litigated on direct appeal, and there is no intervening change of law. See Sanin, 252 F.3d at 83-84. On direct appeal, the Second Circuit held that although Count II may have been facially deficient, because the jury found beyond a reasonable doubt in Counts V and VI that he possessed a short-barreled shotgun, "[a]ny error in either counts II or IV of the indictment or in the jury charge on those counts was therefore harmless." Finley, 245 F.3d at 205. Having already litigated the issue on his direct appeal, and in the absence of any intervening change of law, petitioner is procedurally barred from raising the claim in Ground D.
VI. CONCLUSION
The Court has reviewed petitioner's petition, memorandum of law, and appendices, as well as the government's responding papers and concludes, pursuant to Rules 6 and 8 of the Rules Governing Section 2255 Proceedings, that no evidentiary hearing is necessary, nor is discovery warranted. For the foregoing reasons, the Court denies petitioner's motion [# 41] pursuant to 28 U.S.C. § 2255 with respect to all grounds raised, and grants respondent's motion [# 53] to dismiss.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this decision and order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is hereby denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
So ordered.