Opinion
No. 00-4034-SAC.
February 12, 2002
MEMORANDUM AND ORDER
This case is before the court on defendant's motion to vacate or correct sentence under 28 U.S.C. § 2255. Following a nine day jury trial, defendant was convicted on 80 counts of federal drug and drug-related offenses, and was sentenced to life imprisonment. Defendant unsuccessfully appealed his conviction to the Tenth Circuit, and now brings this collateral action claiming that the drug quantity in his § 841 charges was not made an essential element of the charges in the jury instructions, as is required pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). Since the jury was not required to find the specific drug quantity applicable to his offense, defendant contends that he could only receive a statutory maximum sentence of twenty years under the catch-all provision of 21 U.S.C. § 841(b)(1)(C) (enhanced to thirty years based on his prior felony drug conviction, see id.) See United States v. Price, 265 F.3d 1097, 1108 (10th Cir. 2001) (if quantity of drugs not submitted to jury, defendant should be sentenced under § 841(b)(1)(C), which provides for maximum term of imprisonment of 240 months). Defendant additionally claims he received ineffective assistance of counsel, based primarily upon his counsel's concession that a specific amount of drugs should be attributable to the defendant.
I. Apprendi
The Supreme Court recently held that a defendant may not be sentenced to a term of imprisonment in excess of the statutory maximum based on "sentencing factors" found by the court by a preponderance of the evidence. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). A sentence that exceeds the statutory maximum based on such a finding violates a defendant's right to due process and a jury trial. Id. at 476-77, 490. Before Apprendi, the type and quantity of drugs involved in a crime was a "sentencing factor" to be determined by a judge by a preponderance of the evidence standard. United States v. Jones, 194 F.3d 1178, 1183-84 (10th Cir. 1999). The Tenth Circuit has held that Apprendi establishes a new rule of constitutional law within the meaning of section 2255. Browning v. United States, 241 F.3d 1262, 1266 (10th Cir. 2001).
The Tenth Circuit has not yet determined whether Apprendi is retroactively available in an initial habeas motion. See Browning, 241 F.3d at 1264(declining to authorize second or successive habeas motions by retroactively applying Apprendi); United States v. Speal, 2001 WL 1167261 *2 (10th Cir. Oct. 2, 2001). The Court must therefore examine whether Apprendi applies retroactively to cases on collateral review.
Under Teague v. Lane, 489 U.S. 288 (1989), only two types of new rules may be applied retroactively to cases on collateral review: (1) a rule which places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and (2) a watershed constitutional rule of criminal procedure which requires the observance of "those procedures that . . . are implicit in the concept of ordered liberty." 489 U.S. at 307, 311 (quoting Mackey v. United States, 401 U.S. 667 (1971)). Defendant alleges solely that the second Teague exception applies.
A rule that qualifies under the "watershed" exception "must not only improve accuracy, but also `alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242 (1990) (quoting Teague, 489 U.S. at 311). The circuit courts which have addressed the issue have held that Apprendi does not satisfy this exception. See McCoy v. United States, 266 F.3d 1245, 2001 WL 1131653, at *6 (11th Cir. Sept.25, 2001); United States v. Moss, 252 F.3d 993 (8th Cir. 2001), cert. denied, 2002 WL 13705 (2002); United States v. Sanders, 247 F.3d 139, 147 (4th Cir.), cert. denied, 122 S.Ct. 573 (2001); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000).
Similarly, every case in this district to examine the issue has held that Apprendi does not constitute a watershed constitutional rule of criminal procedure as is necessary to meet the second Teague exception. See e.g., United States v. Moss, 137 F. Supp.2d 1249 (D.Kan. 2001); United States v. Nelson, ___ F. Supp.2d ___, 2001 WL 1456404 (D.Kan. Nov 07, 2001); United States v. Mitchell, 2001 WL 1241300 (D.Kan. Oct 12, 2001); Collins v. United States, 2001 WL 699058 (D.Kan. Jun. 11, 2001); United States v. Garcia, 2001 WL 579817 (D.Kan. May 23, 2001).
Defendant relies upon Justice O'Connor's dissent in Apprendi, which stated that the ruling "will surely be remembered as a watershed change in constitutional law." Apprendi, 120 S.Ct. at 2380. The Court does not believe this statement indicates that Apprendi should be applied retroactively to cases on collateral review, in light of Justice O'Connor's explanation in Teague of the narrow scope of cases which fall within its "watershed" exception. See Teague, 489 U.S. at 313-14.
The Court agrees with the reasoning of those courts which have found that Apprendi does not qualify as a watershed rule of criminal procedure. Apprendi does not alter our basic understanding of the bedrock procedural requirements essential to a fair proceeding, such as the right to counsel. See Saffle v. Parks, 494 U.S. 484, 495(1990) (citing Gideon v. Wainwright, 372 U.S. 335 (1963), to illustrate type of rule within watershed exception). This court is persuaded that the Tenth Circuit would hold that the rule announced in Apprendi does not meet the second Teague exception, and thus finds that Apprendi is not retroactively applicable to this case on initial collateral review.
But even if this court were to reach the merits of defendant's claim, it would not accept defendant's apparent assertion that all factors which increase a defendant's sentence must be included in the indictment and proven to the jury. (Dk. 695, p. 18, citing Justice Thomas's concurring opinion in Apprendi, 120 S.Ct. at 2348.) Whatever the merits of Justice Thomas's argument, they are plainly foreclosed by this court's precedent, which limits Apprendi error to the situation where proof of a fact, other than the fact of a prior conviction, increases the penalty for a crime beyond the statutory maximum penalty otherwise allowed. See United States v. Heckard , 238 F.3d 1222, 1235 (10th Cir. 2001) ("Not all facts that affect a defendant's sentence are essential elements, requiring prosecutorial proof and jury finding."). See also United States v. Kinter, 235 F.3d 192, 199-201 (4th Cir. 2000), cert. denied, 121 S.Ct. 1393 (2001) (sentencing enhancements such as leadership role that do not increase the statutory maximum do not implicate Apprendi.); see also Jones v. United States, 526 U.S. 227, 248 (1999) ("It is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution.")
B. Failure To Raise Claim On Direct Appeal
The government additionally contends that defendant's Apprendi claims are procedurally barred because he failed to raise them on direct appeal. This issue is another that the Tenth Circuit has not yet resolved. See United States v. Speal, 2001 WL 1167261 *2 (10th Cir. Oct. 2, 2001).
Generally, "[Section] 2255 is not available to test the legality of matters which should have been raised on appeal." United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992)). Here, however, the government has not shown how the defendant could reasonably have raised the Apprendi issue on direct appeal before Apprendi was decided and while the overwhelming weight of precedent was to the contrary. Although the Apprendi issue may well be one which must be raised on direct appeal, if at all, for cases decided after Apprendi, the court will not bar this defendant for his lack of clairvoyance.
II. Ineffective Assistance of Counsel
Defendant alleges that the amount of cocaine base alleged in the indictment and proven at trial to be attributable to him was only 180 grams, and that his trial counsel was ineffective for stipulating to the amount of 4.9 kilos of cocaine at the sentencing hearing. (Dk. 695, p. 22.) Defendant contends that there was no purpose or conceivable strategy in stipulating to any amount higher than 1.5 kilos of crack cocaine , as that amount warrants the highest base offense level for drug offenses, see USSG § 2D1.1(c)(1).
The government's response sheds no light upon the "stipulation," and merely alleges, without citation to the record, that it was not unreasonable based upon "substantial evidence" which was presented to the jury in support thereof, (Dk. 700, p. 3), and that defendant suffered no prejudice from the stipulation.
To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690 (1984). Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court recognizes that:
There is a strong presumption that counsel's performance falls within the wide range of professional assistance, (citation omitted); the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. (citation omitted). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. (citation omitted).
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
A court can jump to the prejudice prong without first determining whether counsel's performance was deficient:
[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.Strickland, 466 U.S. at 697.
The "stipulation" referred to by defendant was not an agreement of facts entered into at trial and agreed to by both parties, but was solely an argument of defense counsel made at the sentencing phase. There, defendant's counsel argued that the volume of drugs attributable to the defendant should have been reduced to 4.9 kilos because some of the drugs came from a source other than the defendant pursuant to a separate conspiracy. (Dk. 595, p. 8-10.)
The court did not accept that rationale or defendant's "stipulation," which was nothing more than an objection made at sentencing, but instead found that "all of the information relied upon by the court in determining the defendant's sentence, including the information upon which the court calculated the drug quantity, was supported by reliable evidence." ( Id., p. 18.) Defendant has not shown that the amount used by the court was in error.
Nor has defendant shown that the correct amount would have been less than 1.5 kilos, as is necessary to reduce defendant's base offense level. See USSG § 2D1.1(c)(1). Without proof that the amount of drugs attributable to the defendant was less than 1.5 kilos of cocaine, defendant can show no prejudice from the his counsel's reference to any higher amount of drugs. Accordingly, the "stipulation" by defendant's counsel was neither constitutionally deficient, nor prejudicial to the defendant.
Defendant may also be arguing that he was denied effective assistance of counsel because his lawyer did not argue to the trial court that due process and the right to a jury trial required that the jury find beyond a reasonable doubt the type and quantity of drugs involved in the offense. ( See Dk. 695 p. 22, citing Apprendi).
Apprendi was decided after defendant's conviction became final. At the time of defendant's sentence and on direct appeal, precedent dictated that the judge should determine the type and quantity of drugs based on a preponderance of the evidence standard. Jones, 194 F.3d at 1183-84. Any contention by counsel that due process required the jury, and not the judge, to make those determinations would have been squarely rejected based on then existing precedent.
Counsel's failure to raise a losing argument does not amount to ineffective assistance of counsel, but rather falls squarely within the discretion afforded to counsel. See United States v. Hernandez, 137 F. Supp.2d 919, 927 (N.D.Ohio. 2001) (holding that counsel's performance "did not fall below an objective standard of reasonableness under prevailing professional norms" in failing to make an Apprendi argument prior to the Apprendi decision); United States v. Gomez, 2001 WL 585751, *2 (N.D.Tex. May 25, 2001) (finding that "counsel's failure to predict the Apprendi decision does not constitute ineffective assistance of counsel.").
Furthermore, because there was no reasonable probability of success in raising such a challenge, defendant suffered no prejudice by his counsel's failure to make the argument. See United States v. Goode, 143 F. Supp.2d 817, 827 (E.D.Mich. 2001) ("[T]he established precedent in every circuit . . . before Apprendi was that drug quantity was not required to be charged in the indictment or submitted to the jury.") Defendant's ineffective assistance of counsel claim thus fails.
III. Request for Evidentiary Hearing
Section 2255 requires that the court grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The petitioner "bears the burden of alleging facts which, if proved, would entitle him to relief." Hatch v. State of Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) , cert. denied, 517 U.S. 1235 (1996). No hearing is required where the factual matters raised by defendant's Section 2255 petition may be resolved on the record before the Court. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988). Because defendant's claim of an Apprendi violation is resolved conclusively as a matter of law and because he has failed to allege facts that, if true, constitute ineffective assistance of counsel, he is not entitled to a hearing.
IT IS THEREFORE ORDERED that defendant's motion to vacate or correct sentence pursuant to § 2255 (Dk. 694) is denied.