Opinion
CIVIL ACTION NO.: 0:02-993-10, Criminal No. 94-631
August 1, 2002
ORDER
This case is before the Court pursuant to a motion by Petitioner Roosevelt Sanders ("Petitioner"), a state prisoner proceeding in forma pauperis, for relief under 28 U.S.C. § 2255. Respondent the United States of America ("Respondent") opposes the petition and moves for summary judgment to be granted in its favor pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.
A.
The record shows that on August 3, 1994, Petitioner was arrested in Rock Hill, South Carolina during a traffic stop in which he was found to be in possession of approximately fifty (50) grams of crack cocaine. Following the return of an indictment, Petitioner failed to appear as scheduled before the Magistrate Judge and was declared a fugitive. Petitioner remained a fugitive until January 19, 1999 when he was arrested in North Carolina on unrelated charges. On September 14, 1999, North Carolina officials turned Petitioner over to the United States Marshal. After he was arraigned on the charges contained in the indictment, Petitioner on December 17, 1999 pled guilty to count five (5), possession with intent to distribute and distribution of a controlled substance. On April 2, 2001, this Court sentenced Petitioner to a term of imprisonment of one hundred thirty-five (135) months. Petitioner timely filed a notice of appeal which he later withdrew.
On March 27, 2002, Petitioner filed the instant petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Thereafter, he filed motions to amend his petition and for appointment of counsel. Respondent filed a motion for summary judgment on April 29, 2002. Petitioner then moved for summary judgment on May 20, 2002.
B.
1. MOTION TO VACATE
Petitioner moves the Court to vacate and set aside his conviction and sentence. He contends that (1) the indictment to which he pled guilty was defective because it failed to include the weight of the drugs he was charged with distributing; (2) this Court lacked jurisdiction after he was extradited from North Carolina to South Carolina in violation of the Interstate Agreement on Detainers Act; and (3) he was denied effective assistance of counsel.
(a.) Defective Indictment
Petitioner was convicted of possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Under the penalties subpart of § 841, if there is a finding of a particular drug quantity, a person convicted can be sentenced to a term of imprisonment ranging from either ten (10) years to life or five (5) years to forty (40) years. See 21 U.S.C. § 841(b)(1)(A) (B) (1999). If no specific drug quantity is charged or proven, a defendant convicted of violating § 841(a) is eligible for a term of imprisonment of not more than twenty (20) years. See 21 U.S.C. § 841(b)(1)(C).
Petitioner asserts that his indictment was defective because there was not a specified drug quantity. He argues that the defective indictment was a jurisdictional defect. He argues that a court may not impose a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity which must be charged in the indictment and proved to the jury beyond a reasonable doubt. Apprendi v. New Jersey, 147 L.Ed.2d 435 (2000); U.S. vs. Promise, 255 F.3d 150, 156-7 (4th Cir. 2001).
Petitioner's argument faces two insurmountable impediments. First, this Court did not give Petitioner a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity. Petitioner was sentenced to one hundred thirty five (135) months, well below the statutory maximum of twenty (20) years. Second, Apprendi does not apply retroactively to cases on collateral review. U.S. vs. Sanders, 247 F.3d 139, 146 (4th Cir. 2001). Petitioner's judgment of conviction became final on June 29, 2001 when the Fourth Circuit granted his motion to dismiss his appeal. Petitioner raised hisApprendi claim for the first time in his motion to vacate filed under 28 U.S.C. § 2255. Petitioner cannot obtain § 2255 relief under Apprendi.
(b.) Failure to Comply with the Interstate Agreement on Detainers Act
Petitioner argues that he was denied his rights available pursuant to the Interstate Agreement on Detainers Act. Enacted by forty-eight states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States, the Agreement on Detainers provides procedures by which a member state may obtain for trial a prisoner incarcerated in another member jurisdiction, and by which the prisoner may demand the speedy disposition of charges pending against him elsewhere. The Agreement is designed to protect prisoners and prisoner rehabilitation programs and failure to adhere to it can result in the dismissal of a pending indictment, information, or complaint. See Interstate Agreement on Detainers, § 2, 18 U.S.C. App. 2;Stewart vs. Bailey, 7 F.3d 384, 388 (4th Cir. 1993).
A review of the record establishes that Petitioner's claim is without merit. On September 21, 1999, the Magistrate Judge issued a writ of habeas corpus ad prosequendum. A writ of habeas corpus ad prosequendum, issued by the courts of a jurisdiction party to the Agreement on Detainers to state authorities in another party jurisdiction, requesting custody of a state prisoner for trial on criminal charges, is not a "detainer" within the meaning of the Agreement on Detainers. Because the writ of habeas corpus ad prosequendum is not a "detainer" for purposes of the Agreement, the statute's provisions are not triggered. United States vs. Mauro, 436 U.S. 340, 361 (1978); Stewart, 7 F.3d at 390.
(c.) Ineffective Assistance of Counsel
Petitioner contends that his attorney was ineffective because he did not (1) move to suppress the allegedly defective indictment and (2) did not seek a pre-transfer hearing prior to Petitioner's return to North Carolina.
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Claims of ineffective assistance of counsel can be raised for the first time on a § 2255 motion. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that his attorney's deficient performance prejudiced the defense. In making the determination whether the attorney's deficient performance prejudiced the defense, the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.Strickland, 466 U.S. at 694.
Petitioner has not established that his attorney's performance was deficient or that the result in this case would have been different. Therefore, his claim that he was denied effective assistance of counsel fails.
2. MOTION TO AMEND PETITION
Petitioner next moves this Court to allow him to amend his petition. He seeks to add to his petition allegations that the warrant used in his arrest was invalid. Petitioner also takes offense to the time elapsed (six days by his estimate) between the arrest and his initial appearance before the Magistrate Judge. The Court denies this motion because Petitioner's new allegations are not cognizable under § 2255. Petitioner pled guilty to the indictment that gave this Court jurisdiction. As such, Petitioner's plea forecloses him from collaterally attacking the legality of his arrest, the irregularities of the arrest, or a pre-indictment delay.
3. MOTION TO APPOINT COUNSEL
The Court has considered the Petitioner's motion for appointment of counsel and has concluded that the motion must be and it is hereby denied.
C.
Upon careful consideration of the entire record as well as briefs submitted by both parties, the Court is of the opinion that Roosevelt Sanders' motion to vacate, set aside or correct his sentence and motions to amend, for summary judgment and for appointment of counsel should be, and are, hereby DENIED. Respondent's motion for summary judgment is hereby granted.
IT IS SO ORDERED.