Opinion
Case No. 2:03-CV-706B, (Criminal Case No. 2:99-CR-615B)
May 18, 2004
ORDER
Before the Court is Petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
On November 3, 1999, a grand jury named petitioner in a one count indictment charging him with "knowingly and intentionally possess[ing] with intent to distribute five hundred (500) grams or more of a mixture or substance containing a detectable amount of methamphetamine." According to the indictment, petitioner's conduct was in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and was punishable under 21 U.S.C. § 841(b)(1)(A).
Petitioner pled guilty to the sole count of the indictment on June 27, 2000, admitting to possessing 564 grams of methamphetamine and acknowledging that the penalty for his offense carried a ten year mandatory minimum term of imprisonment under 21 U.S.C. § 841(b)(1)(A). This Court later found that petitioner's guilty plea was "based on an assumption that [he was] going to receive something on the order of seven years in prison" and allowed him to withdraw his plea. On October 31, 2000, petitioner, with the assistance of counsel, again pleaded guilty to the sole count of the indictment. At the second plea hearing, he acknowledged that his offense carried with it a mandatory minimum term of imprisonment of ten years and a maximum of life in prison. Petitioner also acknowledged that he had possessed with intent to distribute "564 grams of methamphetamine." Based on the second plea, this Court sentenced petitioner to ten years in prison. Petitioner then requested counsel be provided to him for purposes of appeal.
On appeal, appointed counsel filed an Anders brief and a motion to withdraw as counsel because he considered petitioner's appeal wholly frivolous. Petitioner responded and filed his own briefs arguing that his conviction and sentence should be overturned based on any one of five bases: 1) petitioner did not know the nature of the charge to which he was pleading; 2) the wrong sentencing statute was used in determining his sentence; 3) his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000); 4) the government did not prove which type of methamphetamine was attributed to him (L-methamphetamine or D-methamphetamine); and 5) he had received ineffective assistance of counsel.
The necessity, purpose, and propriety of filing of an Anders brief derives from the Supreme Court holding in Anders v. California, 386 U.S. 738 (1967). la Anders, the Court determined that a court-appointed appellate counsel who considers an appeal to be without merit could not withdraw from representing a convicted appellant unless counsel first filed a brief with the appellate court that refers to portions of the record that arguably support the appeal. Id. at 744, Such a brief has come to be known as an Anders brief.
After considering all of the proceedings, the Tenth Circuit granted appellate counsel's motion to withdraw and affirmed petitioner's conviction, finding each of his contentions without merit. Petitioner then filed this present motion.
The Tenth Circuit refused to consider the claim for ineffective assistance of counsel, finding that the argument is more appropriately examined in a collateral proceeding.
Having considered the parties' briefings on the current motion, the Court agrees with the government's legal arguments. The Court therefore DENIES petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In reaching its decision, the Court adopts the legal arguments and reasoning set forth in the United States' Response to the Petition for Habeas Corpus.
IT IS SO ORDERED.