Opinion
Civil Action No. 01-4148, Criminal Action No. 99-0375.
March 31, 2004
MEMORANDUM
Before the court is Petitioner Anthony Chapman's request for writ of habeas corpus, pursuant to 28 U.S.C. § 2255. Petitioner pleaded guilty to four counts of drug related crimes. Petitioner did not take an appeal. He now alleges that his guilty plea was not knowing and intelligent and that the conviction is infirm as a result of ineffective assistance of counsel. He contends that he did not know that the cocaine base he distributed was crack. He further asserts that he did not know that his guilty plea to drug crimes involving cocaine base, crack, would result in a more severe penalty than if the charges related to pure cocaine. He further avers that counsel was ineffective for failing to request independent laboratory analysis and for failing to raise the question about whether he was properly charged for possession of cocaine base, crack. Finally, Petitioner claims the sentence imposed by the court violates the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The court concludes that there is no merit to these claims and, therefore, will deny the request for the writ of habeas corpus.
Petitioner alleges that he is not challenging the guilty plea, but only the "issue of the `crack' enhancement."
I. BACKGROUND
On July 6th, 1999, a federal grand jury returned an indictment charging Anthony Chapman and William DeShields with several drug related violations. In the first count, Chapman was charged with conspiracy to distribute cocaine base ("crack"), in violation of 21 U.S.C. § 846, based on several sales of crack cocaine to an undercover officer. He was also charged in three counts of the indictment with distributing and aiding and abetting in the distribution of a mixture containing a detectable amount of cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Specifically, the second count of the indictment alleged that Chapman distributed or aided and abetted in the distribution of more than five grams of a mixture or substance containing a detectable amount of cocaine base ("crack"). The third count of the indictment alleged that Chapman distributed or aided and abetted in the distribution of more than fifty grams of a mixture or substance containing a detectable amount of cocaine base ("crack"). The fourth count of the indictment alleged that Chapman distributed or aided and abetted in the distribution of more than fifty grams of a mixture or substance containing a detectable amount of cocaine base ("crack").
At the Rule 11 plea hearing, Chapman was advised by the court of the charges against him, of the elements of those charges, and of the potential punishments, including minimum and maximum time of incarceration. When describing the factual basis for the plea, at the request of the Court, the Government stated that, on three separate occasions, Chapman negotiated with an undercover state trooper to purchase or to sell quantities of crack cocaine. After Chapman's arrest, tests were conducted which showed that the substance delivered to the undercover officer by Chapman was cocaine base. Specifically, statements at the plea hearing showed that the substance that was delivered on January 12th, 1999, was tested and found to contain 24.7 grams of cocaine base. The substance delivered on January 22d 1999, was tested and found to contain 104 grams of cocaine base. The substance delivered on March 10th, 1999, was tested and found to contain 267.9 grams of cocaine base. Therefore, the total amount of the three purchases by the undercover agent, which served as the basis of the conspiracy count, was slightly more than 396 grams of cocaine base. Chapman agreed that the factual basis for the plea was accurate and correct and that he was satisfied with the representation of counsel. He then pleaded guilty to all counts. The first page of the plea agreement that Chapman signed states that defendant agrees to plead guilty to one count of "conspiracy to distribute cocaine base (`crack')" and to three counts of "distribution and aiding and abetting the distribution of cocaine base (`crack')." (Doc. no. 62).
Crack cocaine is a base form of cocaine. All base forms of cocaine (as opposed to powder cocaine) have the same chemical formula. The tests indicated that the substance was a base form of cocaine and the factual basis for the plea asserted on the record in open court indicated that the base form was crack. These statements are consistent.
Chapman was sentenced to 97 months imprisonment, 5 years supervised release, a $500 fine, and a $400 special assessment. He did not appeal. Before the court is Chapman's petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2255.
II. ANALYSIS
A. Procedural Default.
Because Petitioner did not appeal his sentence, his claim that he pleaded guilty to possession and distribution of a form of cocaine that did not expose him to the enhanced penalties for cocaine base, crack, is defaulted. Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas proceedings only if the defendant can first demonstrate either `cause' and actual `prejudice' or that he is `actually innocent.'" Bousley v. U.S., 523 U.S. 614, 622 (1998) (citations omitted). Petitioner does not allege cause for failure to raise this claim. However, even if Petitioner could show cause, he cannot show prejudice as a result of the failure to raise this claim on direct review. In order to show prejudice, Petitioner must demonstrate with reasonable probability that, but for the alleged error, Petitioner's case would have had a different result. Strickland v. Washington, 466 U.S. 668, 694-695 (1984), U.S. v. Bagley, 473 U.S. 667, 682 (1985).
The same "cause and actual prejudice" standard that applies to procedurally defaulted claims in habeas petitions pursuant to 28 U.S.C. § 2254 also applies to procedurally defaulted claims in habeas petitions pursuant to 28 U.S.C. § 2255. Reed v. Farley, 512 U.S. 339, 354 n. 13 (1994), citing U.S. v. Frady, 456 U.S. 152, 167-168 (1982); see also Cristin v. Brennan, 281 F.3d 404, 416 n. 14 (3d Cir. 2002), citing Frady, 456 U.S. at 167.
The record indicates that the substance delivered by Petitioner to the undercover agent, for which Petitioner was charged and to which he pleaded guilty, was tested by Pennsylvania State Police ("PSP") Lima Regional Laboratory and found to be cocaine base. Petitioner's statement to the arresting officer, the indictment, the plea agreement, and the statements made at the plea colloquy all indicate that the substance was crack cocaine, a form of cocaine base. Morever, because a defendant is properly charged for the controlled substance he actually possesses rather than the controlled substance he believes he possesses, even if Chapman believed at the time of the commission of the offense that the substance was pure cocaine powder (cocaine hydrochloride) rather than crack, that is irrelevant. See U.S. v. Barbosa, 271 F.3d 438, 450-451 (3d Cir. 2001). Therefore, Petitioner fails to meet the prejudice standard, which requires demonstrating reasonable probability that his case would have resulted differently if this issue was raised in trial or on appeal.
Nor can Petitioner show actual, factual innocence in this case. Proving actual innocence requires proving more than insufficiency of the evidence. Bousley, 523 U.S. at 623. In order to demonstrate actual innocence, Petitioner must show "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner guilty." Schlup v. Delo, 513 U.S. 298 (1995) (citation omitted); see also Cristin v. Brennan, 281 F.3d 404 (3d Cir. 2002).
Petitioner does not present any information to contradict the evidence on the record that the deliveries with which he was charged involved crack cocaine. Instead, he contends that, had he known that the penalties for possession and distribution of crack cocaine are more severe than the penalties for possession and distribution of cocaine powder, he would not have pleaded guilty to charges related to crack cocaine. These are legal arguments only, and do not establish that Petitioner is actually innocent. Rather than demonstrating that no reasonable juror would have convicted him of crimes relating to crack cocaine, Chapman's contention indicates that, retrospectively, he would have made a different strategic decision. His assertion does not show that no reasonable juror would have found Petitioner guilty of the crimes of possession with intent to distribute of cocaine base, crack.
B. Claim that Petitioner's Sentence Was Imposed under theWrong Prong of the Statute.
Petitioner next contends that he was sentenced under the wrong subsection of 28 U.S.C. § 841. His claim is that the record does not support a sentence for possession and distribution of crack cocaine since what he possessed and distributed was cocaine base. He claims that the allegation and evidence can amount only to a violation of 21 U.S.C. § 841(b)(1)(C), and not 21 U.S.C. § 841(b)(1)(A) or 841(b)(1)(B). This claim is without merit. The record is replete with statements that the substance was crack cocaine. This was reflected in the indictment, the plea agreement, and the plea colloquy.
The subsections of the statute contain different possible sentences based on the nature an quantity of the drug. 21 U.S.C. § 841(b)(1)(A) dictates a minimum sentence of ten years imprisonment for the possession with the intent to distribute a substance or mixture containing five or more kilograms of cocaine. That same subsection provides a minimum sentence of ten years imprisonment for possession with intent to distribute fifty grams or more of a mixture of cocaine base. The same 100:1 ratio exists under 21 U.S.C. § 841 (b)(1)(B). A person may receive a minimum sentence of five years imprisonment for the possession of either 500 grams or more of a substance or mixture containing cocaine or five grams or more of a substance or mixture containing cocaine base. 21 U.S.C. § 841(b)(1)(C) provides a maximum term of imprisonment of twenty years, but no minimum, for the possession with intent to distribute a schedule II controlled substance (e.g., cocaine) when punishment is not addressed by the other subsections of 21 U.S.C. § 841.
In summarizing the charges against Chapman, the court identified the substance at issue in each count as "cocaine base, crack." Chapman stated that he understood those charges. The court then asked Chapman if he understood that he was pleading guilty to the following crimes:
One count of conspiracy to distribute cocaine base, crack, in violation of Title 21, United States Code, Sections 846 and 841(a)(1), and three counts of distributing and aiding and abetting the distribution of cocaine base, crack, in violation of Title 21, United States Code, Section 841(a)(1).
Change of Plea Hearing Tr., at pp. 4-5 (Dec. 6, 1999). Chapman stated that he understood that these were the charges against him. Chapman was again read these charges, almost verbatim, by the deputy clerk. Chapman then pleaded guilty. During the plea hearing and upon request of the court, the Government explained the factual basis for the guilty plea, which included statements that the substance at issue was crack and that Chapman admitted that he purchased the crack from the co-defendant, DeShields. The court found that there was a factual basis to support the plea and that the plea was entered into knowingly and voluntarily.
Statements of fact by a defendant at a Rule 11 plea colloquy and "findings by a sentencing court in accepting a plea `constitute a formidable barrier' to attacking the plea." U.S. v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992), citing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). While such statements and findings are not insurmountable, Petitioner has raised no argument that calls the answers he gave at those proceedings into question. Therefore, Chapman cannot claim that the guilty plea relating to crack cocaine was not entered knowingly and intelligently. He raises no argument and presents no evidence that would undermine the veracity and accuracy of the statements and findings of the earlier proceedings.
C. Apprendi Claim.
Petitioner's claim under Apprendi, 530 U.S. 466, does not afford Petitioner relief. Apprendi was decided on June 26th, 2000. Petitioner was sentenced on April 17th, 2000, and did not appeal. Judgement was entered on April 21st, 2000. Chapman had ten days from the date of the entry of the final judgement of conviction in his case to file a notice of appeal. Fed.R.App.P. 4(b). However, an additional thirty days may be granted for appeal for "excusable neglect or good cause." Fed.R.App.P. (4)(b)(4). Therefore, the latest date on which Petitioner's conviction could have become final was May 31st, 2000. Since the Third Circuit has held that Apprendi does not apply retroactively, See United States v. Swinton, 333 F.3d 481 (3d Cir. 2003; see also Fraser v. Zenck, 2004 U.S. App. LEXIS 4196, * 12 (3d Cir. March 3, 2004) (citing cases), Apprendi does not apply to Chapman's case.
D. Ineffective Assistance of Counsel Claim.
There is a two-part test to determine if counsel was ineffective. Strickland, 466 U.S. 668. A petitioner must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant. Id. at 687-688. There was ample evidence that Petitioner possessed cocaine base, crack, with intent to distribute, that he aided and abetted in the distribution of cocaine base, crack, and that he conspired to distribute cocaine base, crack. There was no indication in the record, nor is there currently any indication that the substance was anything other than crack cocaine. Therefore, counsel was not ineffective for failing to object to the sentencing as it related to cocaine base, crack. Counsel is not ineffective for failing to raise a claim that lack merit. U.S. v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999); see also Singletary v. Blaine, 2004 U.S. App. LEXIS 2785 (3d Cir. Feb. 8, 2004) (non-precedential opinion).
Chapman was charged in the indictment with possession with intent to distribute crack cocaine. He agreed to plead guilty to possession with intent to distribute "cocaine base, crack." He stated on the record that he understood he was pleading guilty to possession with intent to distribute "cocaine base, crack." He made a statement to the officer after his arrest that he purchased the crack from the co-defendant, DeShields. Chapman also agreed that the factual basis asserted by the government, that Chapman made three deliveries of crack cocaine, was correct. A reasonable attorney would have believed his client's statements that the substance was crack cocaine. Nonetheless, Chapman alleges that counsel was ineffective for failing to appraise Chapman of a potential defense. If Chapman's statements on the record are believed, then the defense that the substance was not crack cocaine for sentencing purposes would not be available. Nor would there be any prejudice to defendant in not learning of this defense. Whether there was prejudice in failing to advise a client of a defense "will depend largely on whether the affirmative defense likely would have succeeded at trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Even if Chapman knew about the defense, he does not now come forward with one iota of evidence that the substance he possessed was anything other than crack cocaine.
Therefore, counsel's performance did not fall below an objective standard of reasonableness. If counsel had raised an objection that the substance was not crack, there is nothing suggesting that it would have altered the outcome of the case. As a result, Petitioner was not prejudiced by counsel's performance. Prejudice requires a showing that, but for alleged deficiencies of counsel, the outcome of the case would have been different. Hess v. Mazurkiewicz, 135 F.3d 905, 909 (3d Cir. 1998).
Nor did counsel's failure to obtain an independent laboratory analysis of the substance at issue fall below an objective standard of reasonableness. However, even if this court found that a reasonable attorney would have sought independent analysis of the substance, Petitioner cannot show prejudice by the failure to do so. Petitioner has come forward with no evidence that the analysis of the drugs by the chemist at the PSP Lima Regional Laboratory resulted in an inaccurate result. Nor does Petitioner contend that an independent analysis would have yielded a result other than that the drugs were cocaine base and that the result would have affected the outcome of his case.
Therefore, even if Petitioner were able to demonstrate that counsel's representation fell below objective standards of reasonableness, Petitioner is unable to demonstrate that he suffered actual prejudice from any of the alleged deficiencies. In order to show prejudice, Petitioner must show that, but for the deficiencies of counsel, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Because Petitioner has not alleged any evidence that his claims would have produced a different outcome, Petitioner cannot demonstrate actual prejudice and his claims of ineffective assistance of counsel fail.
III. CONCLUSION
For the foregoing reasons, Chapman's petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2255, is denied.