U.S. v. Moore

Full title: U.S., Plaintiff, v. Gregory MOORE, Defendant

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Apr 10, 2002

No. 95-CR-80203-DT, No. 00-CV-74639-DT (E.D. Mich. Apr. 10, 2002)

Opinion

No. 95-CR-80203-DT, No. 00-CV-74639-DT

April 10, 2002

OPINION AND ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION

BERNARD A. FRIEDMAN, UNITED STATES DISTRICT JUDGE

This matter is presently before the court on defendant's motion under 28 U.S.C. § 2235 to vacate, set aside, or correct his sentence. Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court shall decide this motion without a hearing.

After two mistrials, on September 10, 1996 the defendant, Gregory Moore, was indicted on charges of possession of cocaine with intent to distribute cocaine base, in violation of 21 U.S.C. § 841. The defendant was convicted and sentenced to 240 months in prison.

The defendant filed a direct appeal of his conviction and sentence to the Sixth Circuit Court of Appeals. On May 21, 1999 the Sixth Circuit affirmed the defendant's conviction and the judgment of the District Court. The defendant then filed the present motion. In his § 2255 motion the defendant argues that he was denied effective assistance of counsel when his counsel failed to disprove that the controlled substance in his possession was cocaine base.¹

1 Additionally, in his § 2255 supplement the defendant makes numerous arguments pursuant to Apprendi v. New Jersey, 530 U.s. 466 (2000). This Court dismissed those claims in its Order of August 8, 2001, stating "the court has recently held that the new Apprendi rules do not apply retroactively to cases on collateral review." Because this case is on collateral review, the Court will consider only non-Apprendi arguments.

The defendant claims that had he not suffered from ineffective assistance of counsel he would not have been sent to prison. The Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) stated that "the right to counsel is the right to the effective assistance of counsel." Id. at 686. Although there is no concrete definition of effective assistance of counsel, a reasonable guide is the defense counsel's actions in view of the "prevailing norms of practice." Id. at 688.

In order to succeed in an ineffective assistance of counsel claim, a defendant must make a two-pronged showing, as outlined in Strickland:

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 the deficient performance prejudiced the defense. This requires showing the counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687. The Strickland court further explains that "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight. . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

The defendant claims his counsel was ineffective because he "failed to (1) pursue a request for an evidentiary hearing, (2) demand an adequate factual basis for determination that the illegal substance tested was base cocaine as opposed to powdered cocaine, (3) challenge the sufficiency of evidence regarding whether the cocaine base, was in fact 'crack,' which arose at sentencing and (4) challenge the expert testimony of the chemist who performed scientific testing on the substance." Dft's amended motion, 28.

Defense counsel and the Government stipulated that the drug involved was cocaine base. Therefore, the Government did not need to prove this at sentencing. Accordingly, the defendant's claims amount to nothing more than second-guessing his counsel's strategy.

The Supreme Court has ruled that defense counsels should be given discretion in choosing what strategy to pursue for the defendant.Strickland, 466 U.S. at 689 ("Judicial scrutiny of counsel's performance must be highly deferential."). In this case the defense counsel believed that it would be beneficial to stipulate that the substance was base cocaine. Because of the stipulation, there was no need to further test the identity of the substance. Therefore, in using his discretion the defense counsel was not deficient, and the defendant has failed to meet his burden, as outlined in Strickland.

Accordingly,

IT IS ORDERED that defendant's motion to vacate, set aside, or correct his sentence is denied.