Opinion
Civil No. 02-3829 ADM, Criminal No. 99-229(1) ADM/AJB
April 14, 2003
Shawn Richard Anderson, pro se.
Jeffrey S. Paulsen, Esq., Assistant United States Attorney, for Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Petitioner Shawn Richard Anderson's ("Petitioner") Motion to Vacate, Set Aside, Grant a New Trial, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket No. 262]. Petitioner claims (1) his counsel was ineffective for failing to object to evidence destroyed prior to trial; (2) his counsel was ineffective for failing to object to the prosecutor's use of prejudicial evidence; (3) his counsel was ineffective for failing to object to the "constructive amendment" of his indictment during trial; (4) his counsel was ineffective for failing to request an evidentiary hearing on the drug quantity and type involved in his case; and (5) the district court lacked jurisdiction to sentence him without drug quantity findings from the jury. The United States ("Respondent") opposes Petitioner's Motion. For the reasons set forth below, Petitioner's Motion is denied.
II. BACKGROUND
Petitioner, along with two other defendants, was indicted on one count of a federal narcotics trafficking violation. See Indictment [Docket No. 28]. On November 9, 1999, a jury convicted Petitioner of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A). Petitioner was sentenced to 360 months imprisonment and five years supervised release. See Judgment and Statement of Reasons [Docket No. 196]. The Eighth Circuit Court of Appeals affirmed Petitioner's conviction. See United States v. Anderson, 236 F.3d 427 (8th Cir. 2001), cert. denied, 534 U.S. 956 (2001) ("Anderson I").
The Court of Appeals chose to discuss the application of the Apprendi v. New Jersey decision to Petitioner's case. Anderson I, 236 F.3d at 428. Since Petitioner's case was tried prior to the Supreme Court's ruling in Apprendi, the question of drug quantity was not submitted to the jury. Id. at 429. The Court of Appeals found the failure to submit the issue of drug quantity to the jury constituted harmless error, since no rational jury could have found that Petitioner meant to produce less than fifty grams of methamphetamine. Id. at 430. Petitioner's motion for a rehearing on the Apprendi issue was denied. See United States v. Anderson, 257 F.3d 924 (8th Cir. 2001) ("Anderson II"). Petitioner filed the present Motion on October 7, 2002, asking this Court to set aside or correct his sentence pursuant to 28 U.S.C. § 2255 [Docket No. 262].
In Apprendi the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty of a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt." Apprendi v. United States, 530 U.S. 466, 490 (2000).
III. DISCUSSION
A prisoner may bring a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence if the sentence was imposed in violation of the United States Constitution or federal statutory laws. A petitioner must show that the error, if left uncorrected, would result in a complete miscarriage of justice or in a "conviction of one innocent of the crime." McCleskey v. Zant, 499 U.S. 467, 494 (1991). Petitioner sets forth five arguments in support of his § 2255 Motion. Petitioner's arguments fall into two different categories: ineffective assistance of counsel arguments and Apprendi claims. Petitioner's arguments fail to meet the burden required to obtain § 2255 relief.
A. Ineffective Assistance of Counsel
The first, second, and fourth claims in Petitioner's Motion raise ineffective assistance of counsel arguments. To prove ineffective assistance of counsel Petitioner must show that his counsel's performance fell below "an objective standard of reasonableness" and that he was prejudiced by the error. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To satisfy an ineffective assistance of counsel claim the movant faces a heavy burden. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Judicial review of counsel's performance is highly deferential; there is a strong presumption that his or her conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Here, Petitioner has not met the requirements necessary to prove ineffective assistance of counsel.
Petitioner first argues that his counsel was ineffective for failing to object to the destruction of certain laboratory materials. According to Petitioner, laboratory equipment was destroyed in violation of DEA guidelines from two residences, 651 5th Street, Hancock, MN and 427 39th Avenue North, Minneapolis, MN. See Pet'r Mot. at 3. Petitioner asserts that there was no showing of contamination before the equipment was destroyed, and that the Minneapolis police, prior to the DEA agents' arrival, had destroyed all contaminated equipment. See id. at 4. Petitioner also argues that the pictures the officers took of the destroyed evidence were inadequate, since the "officers should have taken multiple photographs of the equipment at different angles and from all sides, so that the defense could have had a fair opportunity to . . . locate comparable evidence." Id. at 6. Petitioner believes that if his counsel had suppressed this evidence, he would have been found not guilty. See id. at 8. Respondent claims, however, that there was no violation of DEA policy because DEA policy requires that hazardous materials be given to a disposal company for immediate destruction. Resp't Mot. at 3 (citing Attach. 2, "DEA Agents Manual" para. G). According to DEA procedure, "[c]ustody of all hazardous materials and chemical waste will be given to the disposal company for transport and destruction or storage." DEA Agents Manual para. G (Resp't Mot. Attach. 2). The DEA Agents Manual further provides that "chemicals of a hazardous nature will be sampled for analysis and evidentiary purposes; however, if — in the opinion of the chemist — the sampling and retention of some hazardous material may pose imminent or future danger, the substances will not be sampled." Id. para. E. Citing the trial testimony, Respondent claims this procedure was followed in Petitioner's case.
Respondent also argues that Petitioner was not prejudiced by the destruction of the hazardous materials since his counsel was provided photographs and detailed reports of all destroyed materials. Petitioner has not established that his counsel's performance fell below "an objective standard of reasonableness" and that he was prejudiced by the error. Strickland, 466 U.S. at 687-88. Although Petitioner's counsel did not specifically challenge the destruction of the contaminated laboratory equipment, DEA policy allows for the destruction of such evidence. See DEA Agents Manual (Resp't Mot. Attach. 2). Officer Wayne Trebil ("Officer Trebil"), a Minneapolis police officer and DEA task force officer, testified that there are a number of different DEA procedures that can be followed when handling clandestine laboratory materials. See Trial Tr. Day 2, at 42. In Petitioner's case, Officer Trebil explained that he had a reason to worry about the safety of the crime scene, since the police arrived after containers of anhydrous ammonia exploded. See id. at 45. In order to secure the site and preserve evidence, the DEA contacted an outside agency that was on hand to tag the evidence, seal it, and then destroy it, in accordance with DEA policy. See id. at 46. Officer Trebil testified this was an acceptable procedure for dealing with hazardous materials. See id. at 42-46. Petitioner has provided no evidence to the contrary. Petitioner's counsel cannot be found ineffective for failing to make an argument that would have been unlikely to succeed. See, e.g. Allen v. Nix, 55 F.3d 414, 417 (8th Cir. 1995); United States v. Johnson, 707 F.2d 317, 323 (8th Cir. 1983).
Petitioner's counsel did actively try to suppress the evidence against Petitioner by challenging the validity of the search warrants. See Mot. to Suppress Evidence Obtained through Search and Seizure [Docket No. 44]. Even though counsel's arguments were rejected, this was a reasonable approach to take in Petitioner's defense. See Mem. Op. and Order of 10/29/99, at 3-5, 8 (denying defense Motion) [Docket No. 147].
Additionally, although Petitioner claims he was provided with "contextless reports and unavailing photographs" of the destroyed materials, there is no evidence to this effect. Pet'r Reply Mem. at 2. Petitioner has not established that he was prejudiced by the destruction of the evidence, since defense counsel was provided with pictures and reports regarding the materials. Petitioner has therefore not met either prong of the Strickland test.
In his next ineffective assistance of counsel argument, Petitioner contends that his counsel was deficient for failing to object to the prosecutor's use of prejudicial evidence. Petitioner claims the prosecutor committed misconduct during his trial by referring to a motorcycle as stolen without proper proof, and that his attorney was ineffective for failing to object to such statements. The motorcycle in question was in co-defendant Mark Nevala's ("Nevala") possession when he was arrested. See Trial Tr. Day 3, at 69. Nevala testified at trial that Petitioner gave him the motorcycle and that the motorcycle was stolen. See id. at 54. To support his argument, Petitioner provided this Court with a police report from Nevala's arrest. Petitioner claims the police report establishes the motorcycle was not stolen, since the motorcycle's vehicle identification number ("VIN") was found invalid, not registered as a stolen vehicle. See Police Report (Pet'r Mot. Attach. D).
When viewed in the context of the multiple indications that the motorcycle was stolen, the invalid VIN detracts from rather than proves Petitioner's theory. Nevala told the police officer "that he believed the motorcycle was stolen," the license plate did not belong to the motorcycle, and the VIN was invalid. Id. Based on these facts, it is reasonable to assume that the motorcycle was in fact stolen.
Since there is no factual basis for Petitioner's argument that the motorcycle was not stolen, his ineffective assistance of counsel and prosecutorial misconduct claims lack merit. Moreover, his defense counsel actively objected to Nevala's testimony, on both the motorcycle issue and other grounds. See Trial Tr. Day 3, at 53-106. An attorney is not ineffective simply because his argument fails. See, e.g. Strickland, 466 U.S. at 687-90. Finally, Petitioner has not shown any prejudice that resulted from the admission of testimony regarding the stolen motorcycle. The status of the motorcycle line of testimony was only tangentially related to the issues of drug manufacture posed in the case.
Petitioner further argues that his counsel was ineffective for failing to request an evidentiary hearing at sentencing regarding drug quantity. Petitioner claims his sentence was only based on theoretical yields of methamphetamine. According to Petitioner, the specific laboratory equipment, chemicals, and formula involved in his case were not taken into account when determining the amount of methamphetamine that he could have produced.
Under the first prong of Strickland, Petitioner must prove that his "counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. Petitioner has not met this requirement. Petitioner's counsel effectively litigated the question of drug quantity during sentencing, retaining a defense expert for the purpose of trying to prove that Petitioner could not have manufactured more than 50 grams of methamphetamine with the ingredients he possessed. See Sentencing Tr. at 5 [Docket No. 207]. At sentencing Petitioner's counsel argued:
[W]e filed attached to our memorandum in support of our position paper a statement or report from Dr. Ferguson. He's a medical chemist at the University of Minnesota. He acknowledges in his report that theoretically the yield here would have been more than 50 grams, but the significance of his report is that given the conditions under which this substance was being produced and that fact that it wasn't — it was watering down, it wasn't yielding anything. . . .
Id. Counsel's efforts were well within the range of competent counsel. Thus, Petitioner has failed to demonstrate that he received ineffective assistance of counsel.
B. Apprendi Claims
Petitioner's third and fifth claims raise variations of an Apprendi argument. Petitioner first asserts that his indictment was constructively amended during trial since the indictment charged him with conspiring to produce in excess of 50 grams of methamphetamine, but the jury was only required to find that a measurable amount of drugs was involved in his case. Petitioner also argues that the district court lacked jurisdiction to sentence him without jury findings on the amount of methamphetamine produced.
In Apprendi, the Supreme Court held that a jury must decide beyond a reasonable doubt any fact that would increase a defendant's sentence beyond the statutory maximum. Apprendi, 530 U.S. at 489. Apprendi was decided after Petitioner had already been sentenced; as a result the jury did not determine the specific amount of methamphetamine attributable to Petitioner's case. In applying Apprendi retroactively, the Eighth Circuit found that Apprendi "did not recognize or create a structural error that would require per se reversal." Anderson I, 236 F.3d at 429 (citing United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000)). As a result, where an Apprendi error has occurred the conviction must be affirmed as long as the error was harmless. Id. (citing Neder v. United States, 527 U.S. 1, 8-15 (1999)).
Petitioner's Apprendi claims do not warrant § 2255 relief. The Court of Appeals has previously reviewed and decided Petitioner's Apprendi arguments on direct appeal and on a motion for rehearing. See Anderson I, 236 F.3d at 429-30; Anderson II, 257 F.3d at 924 (denying motion for rehearing). The Appellate Court held that any Apprendi error in Petitioner's case was harmless since it was "improbable that any rational jury could conclude that the object of the attempt . . . was to produce fewer than 50 grams of methamphetamine." Anderson I, 236 F.3d at 430 (internal citations omitted).
In denying Petitioner's motion for a rehearing, the court found that based on the entire record, "Mr. Anderson failed to adduce any evidence that could rationally lead to a contrary finding on the issue of drug quantity, either in his argument to the jury . . . or before the district court during the sentencing phase." Anderson II, 257 F.3d at 924. Issues that were decided against Petitioner on direct appeal may not be raised again in a § 2255 petition. See Thompson v. United States, 7 F.3d 1377, 1379 (8th Cir. 1993); English v. United States, 998 F.2d 609, 612 (8th Cir. 1993). Based on this procedural bar, Petitioner may not now reassert his Apprendi arguments. Accordingly, Petitioner's Motion is denied.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket No. 262] is DENIED.