Opinion
No. 99-291
October 17, 2001
ORDER AND REASONS
Before the Court is the defendant, Anthony Quinn Bray's, Motion to Vacate, Set Aside, or Correct Conviction and Sentence pursuant to Title 28 U.S.C. § 2255. For the following reasons, the Motion is DENIED.
A. BACKGROUND
On September 3, 1999, the defendant was indicted by a Grand Jury in the Eastern District of Louisiana. Count I charged the defendant with knowingly and intentionally possessing with the intent to distribute cocaine hydrochloride. Count 2 charged him with possession with intent to distribute cocaine base. Both counts were in violation of Title 21 U.S.C. § 841 (a)(1). On December 22, 1999, the defendant pled guilty to both counts charged in the indictment after signing a factual basis setting forth the facts of the case. The defendant was subsequently sentenced to 135 months in prison based on the amounts of controlled substances set forth in the factual basis, the sentencing guidelines, his age and lack of criminal history.
In the defendant's present motion before the Court, he asserts that he was denied effective assistance of counsel for multiple reasons. In addition, he claims that the indictment failed to charge him with specific quantities of cocaine hydrochloride and cocaine base in violation of the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).
B. ANALYSIS 1. Ineffective Assistance of Counsel Claims
The Sixth Amendment guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. Const. Amend VI; Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980). The defendant has alleged that his Sixth Amendment right has been denied and raises several grounds on which to base his claim. In order to prevail, the defendant must satisfy the two prong test established by the Supreme Court inStrickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, the defendant must prove that his counsel's representations "fell below an objective standard of reasonableness," and second, that the performance prejudiced the defendant. Id. For the performance to prejudice the defendant, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Court will examine the defendant's allegations keeping in mind that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689.
First, the defendant asserts that counsel failed to explore all information that would prove that the seizure of drugs and weapons from his home was a violation of the Fourth Amendment. The defendant was a suspect in the murder of a former federal source, Wilfred Carr. A state search warrant was issued to search the defendant's home in conjunction with the murder investigation. State officials received two tips containing information that the defendant was involved in the murder. One of the tips was anonymous while the other was called in by the victim's sister. Based on the information in both calls, the government conducted surveillance on the defendant's home. The defendant argues that reliance on an anonymous tip is insufficient evidence to issue a warrant. However, the warrant was not issued as a result of the anonymous tip alone. A search warrant for the defendant's home was issued as a result of the surveillance and both tips. The search of the home resulted in the discovery of crack cocaine, cocaine hydrochloride, and several weapons. The defendant admitted owning the drugs and the weapons. The Court finds that the defendant cannot meet either element of the Strickland test for this claim because the information relied on by the government was sufficient to obtain a warrant, making counsel's determination not to file a motion to suppress objectively reasonable. Even if it fell below the objective standard of reasonableness, the defendant's subsequent admittance that the drugs and the weapons belonged to him precludes any claim that counsel's error prejudiced him.
Second, the defendant argues that counsel failed to request Brady and Jencks material. However, in his motion, the defendant does not allege that this failure violated either prong of the Strickland test. Instead he appears to make a direct challenge to the government's failure to produce such material. The defendant alleges that the government's failure to provide such information violated his due process rights. This claim must fall because he cannot assert on collateral review that which could have been asserted on direct appeal. United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc) cert. denied, 502 U.S. 1076 (1992). Even if this were an ineffective assistance claim, the defendant's conclusory statement that the government failed to provide all Brady and Jencks material is not supported by any evidence.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
Third, the defendant maintains that counsel failed to advise him of the differences between cocaine base and crack. He also contends that he was sentenced to possession of crack under less than the requisite preponderance of the evidence standard. Under the 1993 amendments to the Sentencing Guidelines, Section 2D1.1 (note D), "cocaine base" means "crack." The defendant argues that the PSI alleges only cocaine base and not crack. Since the lab analysis does not refer specifically to "crack," the defendant believes he should be sentenced for possession of cocaine hydrochloride and not crack. The defendant has provided no evidence to the Court which would suggest that the cocaine base was not crack. As the defendant points out, the Guidelines state that cocaine base is crack. The lab determination that the substance was cocaine base is the equivalent of saying it was crack. The fact that the presentence report does not specifically use the word "crack" is of no moment. Accordingly, counsel was under no obligation to explain to the defendant the differences between "cocaine base" and "crack" because they are equal as far as the Sentencing Guidelines are concerned. The defendant makes a statement that the substance tested by the government was cocaine freebase and not crack. However, the defendant has shown no evidence in support of this contention.
In addition, the defendant claims that he was not sentenced under a preponderance of the evidence standard. This claim is not an ineffective assistance of counsel claim and therefore cannot be asserted on collateral review. See Shaid, supra.
Fourth, the defendant claims that it was erroneous for counsel to advise him to plead guilty without a written plea agreement. This argument is without merit. There is no rule that requires a written plea agreement when a defendant pleads guilty to a crime. Here, there was no plea agreement. Counsel is not required to advise his client to obtain a written plea agreement in order to plead guilty. This claim fails to meet the first prong of Strickland.
Fifth, the defendant contends that counsel failed to confer with the defendant about an appeal. The Court is confused by this final allegation as the defendant previously stated in his Motion for Leave to File Notice of Appeal that he advised counsel he wished to appeal from the judgment and sentence. The Court had both the defendant and his counsel file affidavits on this issue. Counsel stated in his affidavit that there were no grounds on which to appeal the defendant's sentence. Counsel explained this to the defendant, and the defendant never asked that an appeal be taken. The defendant claims that he told counsel that he wished to appeal his case because he did not agree with the presentence report. However, the defendant did not object to the report during the sentencing. The defendant also states in his affidavit that he told counsel he wanted to appeal his sentence. The defendant corroborates counsel's affidavit by stating that counsel did talk to him about appealing his case but told the defendant that there were no grounds on which to base an appeal.
If the defendant's basis for ineffective assistance is that counsel failed to confer with him about an appeal, that claim is without merit. The defendant and his attorney both state in their affidavits that they did have discussions about appealing but counsel advised the defendant that he had no grounds for appeal. The defendant does not state in his affidavit that he told counsel to appeal his sentence.
If, on the other hand, the defendant's claim is based on counsel's failure to file notice of appeal, the Court holds, under Strickland, that counsel's decision was reasonable under the circumstances. The Supreme Court has recently held that the test for determining whether counsel was deficient in his services for not filing a notice of appeal isStrickland. Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000). There appears to be some discrepancy as to whether the defendant actually told counsel that he wanted to appeal his sentence. The affidavits of the defendant and his counsel suggest that the defendant did not clearly explain to counsel that he wanted to appeal. In his affidavit, the defendant only states that he told counsel he wished to appeal prior to sentencing. However, the defendant made no objections to the presentence report at sentencing. What does appear to be clear is that counsel advised the defendant after looking at the evidence and the manner in which it was obtained that he had no grounds on which to appeal.
The Court holds that counsel did confer with his client about appealing his sentence. Under the first prong of the Strickland analysis, counsel's actions did not fall below an objective standard of reasonableness. Counsel reviewed the basis on which the warrant for the defendant's home was obtained and concluded that there were no constitutional violations. After the defendant pled guilty, counsel review the presentence report and determined that the calculations were proper. The defendant was sentenced to the low end of the guideline range. The defendant was repeatedly asked by the judge both at his re-arraignment and sentencing whether he understood the charges against him and the consequences of pleading guilty. The defendant said that he understood and voiced no objections. Because the Court finds that counsel's actions were objectively reasonable, there is no need to address the second prong of the Strickland test.
2. Apprendi Challenges
In light of the Supreme Court's decision in Apprendi, the defendant maintains that his sentence should be set aside because the indictment under which he was charged did not specify the drug quantity. The defendant was charged in the indictment with two counts in violation of Title 21 U.S.C. § 841 (a)(1). The statutory maximum sentence for Count 1 under § 841(b) was twenty years. The statutory maximum sentence for Count 2 under § 841(b) was life imprisonment. Because the defendant was not charged with specific quantities of cocaine hydrochloride and cocaine base, the maximum sentence under § 841(b)(1)(C) was twenty years. He was sentenced to 135 months imprisonment. 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 the jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. at 2362-63. The Court holds that there was no Apprendi violation as the defendant's sentence "did not exceed the statutory maximum sentence with which he was charged." United States v. Meshack, 225 f.3d 556, 577 (5th Cir. 2000). Accordingly, the Court need not address the defendant's retroactivity argument.
3. Constitutional Challenge to Title 21 U.S.C. § 841
The defendant alternatively contends that § 841 is unconstitutional in light of the Supreme Court's decision in Apprendi. The Fifth Circuit has rejected challenges to the constitutionality of § 841 underApprendi. See United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000); United States v. Fort, 248 F.3d 475, 483 (5th Cir. 2001). This ground for relief has no merit.
For the reasons set forth above, IT IS ORDERED that the defendant, Anthony Quinn Bray's Motion is DENIED.