Opinion
Case No. 00-3033-WEB; (Crim. No. 98-10079-02).
April 20, 2000.
Memorandum and Order
Now before the court is the motion of defendant Daniel Cantu to vacate, set aside, or correct his sentence under the provisions of 28 U.S.C. § 2255.
Defendant was convicted by a jury on five counts of an indictment charging him with conspiracy to distribute methamphetamine, Count 1; distribution of methamphetamine, Counts 5, 6, 7, and carrying a firearm during and in relation to a drug trafficking crime. On his behalf, counsel filed an appeal, but the defendant chose not to proceed with that appeal; and it was dismissed by the Tenth Circuit. U.S. v. Cantu. Case No. 98-10079-02, (10th Cir. Order filed June 9, 1999.)
Defendant stated he did not appeal because "I did not trust my attorney and the court would not give me sufficient time to understand the relevant law." Motion to vacate sentence, Dkt. 187. On appeal by Cantu's codefendant, Carlos L. Canedo, his conviction was affirmed. U.S. v. Canedo, Case No. 99Z3057 10th Cir. Jan. 3, 2000.
As grounds for relief under § 2255, defendant makes the following claims:
(a) That he was denied effective assistance of counsel. In explanation of this allegation, defendant states: "Counsel failed ab initio to raise or challenge any of the issues presented herein . . . ." (Below is a statement of claims described in (b), (c), and (d)).
(b) That the government moved without "legislative, territorial or Admiralty jurisdiction over the locus in quo";
(c) Absence of federal subject matter jurisdiction over his conduct because it failed to charge or prove that the acts "transcended the borders of the Sovereign State" so there was no interstate commerce connection;
(d) That the federal law was "unenacted, unpromulgated and unimplemented" because it had "not been promulgated in the Federal Register" or the Code of Regulations and thus did not apply to private citizens.
In reviewing defendant's motion, the court finds that any complaints about the conduct of his trial should have been raised in his direct appeal. The Tenth Circuit has ruled on many occasions that "Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal. U.S. v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993) [citing U.S. v. Khan, 835 F.2d 749, 753 (10th Cir. 1987). The general rule is that a defendant who fails to raise an issue on direct appeal is barred from raising the issue in a § 2255 motion, "unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed." U.S. v. Cook, supra 997 F.2d at 1320.
In order to circumvent this rule, defendant has stated his claims in terms of the alleged ineffective assistance of counsel, asserting that if his attorney had raised the issues discussed above, the outcome of his case would have been different. As to this assertion, defendant has failed to show that his counsel's performance was deficient or that any claimed omission was prejudicial.
In Rogers v. U.S. 91 F.3d 1388, 1391-92 (10th Cir. 1996), cert. denied, 136 L.Ed.2d 879 (1997), the court ruled that defendant must show that counsel's errors were so serious that he was deprived of 6th Amendment rights, and that errors and omissions were so serious as to deprive the defendant of a fair trial. In a recent ruling in another § 2255 motion claiming ineffective assistance of counsel, this court discussed the issue in this manner:
To establish such a claim, the defendant must show that: (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance is deficient if it "falls below an objective standard of reasonableness." Id at 690. Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of . . . reasonable professional judgment. Id. at 690. The ultimate inquiry in a claim for ineffective assistance of counsel focuses on the fundamental fairness of the proceeding. Id. at 696. (United States v. Woodard, Case No. 97-3307-WEB, Crim. Action No. 94-10052, Memorandum and Order April 2, 1998)
A review of the record discloses that Cantu was provided a spirited defense by his trial counsel, in the face of a strong government case. Counsel filed several pretrial motions including a motion to dismiss for vindictive prosecution, which was denied, and a motion for a bill of particulars, which was granted. In his cross-examination of government witnesses, defense counsel attempted to show that they were unable to see Cantu commit a crime or, in the case of the cooperating eyewitness, Zimmerman, that he was lying in hopes of receiving a reduced sentence. Objections were made to the court's instructions.
In presenting an unsuccessful motion for judgment of acquittal and for new trial, Cantu's counsel presented arguments concerning the sufficiency of the evidence, the alleged impropriety of Rule 404(b) evidence (evidence of prior drug transactions), denial of the motion to suppress evidence, and failure to grant separate trials to Cantu and his codefendant Canedo. Defense counsel also submitted objections to the presentence report.
As previously noted, counsel filed a notice of appeal on Cantu's behalf, together with a motion for leave to appeal in forma pauperis. (Dkt. 153) In this respect, counsel presented numerous reasons for proceeding with the appeal including alleged error in denying the motion to dismiss Count 7 as it constituted "vindictive prosecution," error in allowing 404(b) evidence, denying the motion for new trial and judgment of acquittal, and claimed errors in applying sentencing guidelines. Defendant continued to be adamant in his refusal to proceed further, and the circuit dismissed his appeal for failure to prosecute.
There is simply no evidence whatsoever that Cantu was denied the right to effective counsel.
The remaining allegations concerning the absence of federal jurisdiction over the issues presented in Cantu's trial and conviction are completely meritless. The regulation of intrastate drug activity under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841 (a)(1) implicates interstate commerce, and is therefore a valid exercise of Congress' power under the Commerce Clause.U.S. v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995), cert. denied, 118 S.Ct. 1333 (1998); U.S. v. Tucker, 90 F.3d 1135, 1140 (6th Cir. 1996) (reviewing many cases).
Defendant's claims for relief under the provisions of § 2255 are groundless. Although he has not applied for a certificate of appealability along with his motion, the court further finds that the issuance of a certificate would not be appropriate in this case as defendant has failed to demonstrate that there has been any denial of a constitutional right. Accordingly,
IT IS ORDERED that the petition of defendant for relief under the provisions of 28 U.S.C. § 2255 be, and it is hereby DENIED; and
IT IS FURTHER ORDERED that a certificate of appealability under the provisions of 28 U.S.C. § 2253 be, and it is hereby DENIED.
SO ORDERED this 20th day of April, 2000.