Opinion
07958-055, 00-CV-0374E(F), 95-CR-171E
July 10, 2001
MEMORANDUM AND ORDER
Presently before the undersigned is a motion brought pursuant to 28 U.S.C. § 2255 to set aside a conviction rendered in this Court October 30, 1996. For the reasons that follow, such motion will be denied.
Petitioner was charged October 11, 1995 in a one-count Indictment with having knowingly, intentionally and unlawfully possessed with intent to distribute five grams or more of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1). After a jury had found petitioner guilty, the undersigned sentenced petitioner May 15, 1998 to a 151-month term of imprisonment. Petitioner's conviction was later affirmed by the Second Circuit Court of Appeals December 23, 1998 and certiorari was denied by the Supreme Court May 17, 1999. Petitioner's original application for section 2255 relief was then filed May 3, 2000. By Order dated August 10, 2000 this Court permitted petitioner to file an amended pleading, which petitioner did September 15, 2000, supplementing petitioner's original application.
Although the petition sets forth fourteen specific grounds for relief, only two issues are actually raised — i.e., the alleged ineffectiveness of his trial counsel and the alleged illegitimacy of the sentence imposed by this Court in the wake of Apprendi v. New Jersey, 530 U.S. 466 (2000). Neither is sufficient to warrant relief in this case.
Claims of ineffective assistance of counsel are analyzed using a two-part test. Petitioner must first show that his attorney failed to provide "reasonably effective assistance" according to prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner must then show that there is a "reasonable probability that, but for counsel's unprofessional errors," the outcome of the case would have been different. Id. at 694. Moreover, there is a "strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689.
Grounds One, Four, Six and Thirteen all pertain to counsel's alleged failure to present evidence at trial that would have been beneficial to petitioner's case. This evidence consisted of petitioner's own testimony, certain portions of an audio tape, testimony of a witness allegedly favorable to petitioner's defense and an audio tape made by the petitioner containing allegedly exculpatory statements made by the informant who testified at trial. Nevertheless, "actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance" — United States v. Berkovich, 168 F.3d 64, 67 (2d Cir. 1999) — and, given the strong presumption that petitioner received reasonable professional assistance, petitioner has failed to show how his counsel's decisions do not qualify as falling within the ambit of competent trial strategy. United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992). Consequently, these claims are without merit.
Ground Eleven argues that counsel's opening statement is demonstrative of ineffectiveness because such statement never professed his client's innocence. As stated above, however, courts should refrain from "second-guess[ing] matters of trial strategy simply because the chosen strategy was not successful" — Trapnell v. United States, 725 F.2d 149, 155 (2d Cir. 1983) — and, inasmuch as reasonable trial strategy may include waiving an opening statement, this claim has no merit. See United States v. Helgesen, 669 F.2d 69, 72 (2d Cir. 1982) (counsel's failure to make an opening statement did not constitute ineffective assistance).
Grounds Three, Eight and Ten are all premised on petitioner's claim that the prosecution witness who identified petitioner's voice on an audio recording could not credibly have done so. Nevertheless, it has long been the case that courts "defer to the jury's resolution of witness credibility" — United States v. Tocco, 135 F.3d 116, 123 (2d Cir. 1998) — and petitioner has proffered no reason to hold otherwise. Consequently, these grounds are without merit.
Grounds Two, Seven and Nine state that counsel was ineffective due to his failure to make certain objections at trial with regard to the jury instructions. Nevertheless, the undersigned's review of the objections raised by petitioner as to specific portions of the jury instructions reveal that such are insufficient to invalidate his conviction. Counsel's failure to raise these objections, therefore, could not have violated petitioner's Sixth Amendment rights.
Ground Five asserts that counsel was ineffective for failing to object to the prosecutor's vouching of certain witnesses. "Attorney statements vouching for the credibility of witnesses are generally improper because they impl[y] the existence of extraneous proof." United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998). On closer examination, however, "what might superficially appear to be improper vouching for witness credibility may turn out *** to be permissible reference to the evidence in the case." Ibid. Insofar as any such vouching is alleged to have occurred in this case, such comments — viewed in context — were nothing more than exhortations to find defendant guilty based on the evidence. These comments were neither "inflammatory or insinuating" — United States v. Burse, 531 F.2d 1151, 1154-1155 (2d Cir. 1976) — nor can they reasonably be characterized as the prosecutor "injecting his credibility into *** part of the trial." United States v. Damsky, 740 F.2d 134, 138 n. 3 (2d Cir. 1984). Consequently, this ground is without merit.
Internal quotation marks and citations omitted.
Ground Fourteen argues that counsel was ineffective in allowing petitioner to be sentenced at Offense Level 32 of the Sentencing Guidelines instead of Offense Level 30. Inasmuch as such a claim is neither constitutional nor jurisdictional, it may generally not be raised in a section 2255 proceeding absent a showing that the error in failing to properly apply the Sentencing Guidelines resulted in a "complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996). No such showing has been proffered here. Moreover it is pertinent to note that, even if the Sentencing Guidelines were misapplied, the sentence (151 months imprisonment) petitioner received was within the range applicable to Offense Level 30, which ranges from 121 to 151 months imprisonment. Consequently, no Sixth Amendment violation can be claimed in this regard.
The final basis for petitioner's motion is the Apprendi claim. Petitioner argues that, inasmuch as the Indictment only specified an amount of at least five grams of a substance containing cocaine base and inasmuch as the jury returned a verdict which did not specify any drug amount, he should have been sentenced in accordance with Offense Level 26, which correlates with an imprisonment time of 78 to 97 months based on possession of five but less than twenty grams of cocaine base.
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 must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, at 490. Drug offenses premised on 21 U.S.C. § 841 are governed by this principle. See United States v. Aguayo-Delgado, 220 F.3d 926, 930, 934 (8th Cir. 2000). Nevertheless, even if the undersigned were to assume that the basic premise for petitioner's argument is correct, section 2255 relief will not issue because Apprendi does not apply retroactively to cases on collateral review.
In Teague v. Lane, the Supreme Court held that, "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague, at 311. For the relevant "watershed rules" exception of Teague to apply, "the procedure at issue must implicate the fundamental fairness of the trial" and be such that, without it, "the likelihood of an accurate conviction is seriously diminished." Id. at 312. The Supreme Court has characterized Gideon v. Wainwright as illustrative of this exception. See Saffle v. Parks, 494 U.S. 484, 495 (1990).
489 U.S. 288 (1989).
The undersigned has no doubt that the rule announced in Apprendi is new. Prior to Apprendi, drug quantity was a factor to be determined by a court prior to sentencing. From and after Apprendi, where such quantity acts to increase the penalty for a crime beyond the prescribed statutory maximum for that charged conduct, a jury determination is required. United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001).
Nevertheless, the general rule of non-retroactivity still applies because the lack of a jury finding as to drug quantity cannot seriously be said to call into question the validity of the underlying criminal proceeding. The finding of this Court as to drug quantity for sentencing purposes did not "render [the] criminal trial fundamentally unfair or [make such trial] an unreliable vehicle for determining guilt or innocence" — Neder v. United States, 527 U.S. 1, 9 (1999) — and the "likelihood of an accurate conviction" will not be diminished by not applying Apprendi retroactively. Teague, at 313. In short, the rule announced in Appendi is not a watershed rule within the meaning of Teague; it does not apply retroactively and petitioner may not rely on Apprendi to attack his sentence under section 2255.
Accordingly, it is hereby ORDERED that petitioner's motion brought pursuant to 28 U.S.C. § 2255 is denied, that — having raised no substantial showing of the denial of a constitutional right — a certificate of appealability will not issue and that this case shall be closed.