Opinion
Civil No. 00-2206 (JRT), Criminal No. 97-194 (JRT)
July 26, 2002
Robert Ramsey, Jr., Ramsey Price, Los Angeles, CA for petitioner.
Jeffrey S. Paulsen, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN for respondent.
MEMORANDUM OPINION AND ORDER ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
Petitioner Charles McKay McNeil was convicted for conspiring to distribute and distributing methamphetamine in violation of 21 U.S.C. § 841, 846. Petitioner's conviction was affirmed by the Eighth Circuit Court of Appeals. Petitioner has filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the basis that his trial counsel was constitutionally ineffective and that he was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Petitioner also moves to amend and supplement his pleadings to alert the Court to additional caselaw in support of his Apprendi claim.
For the reasons set forth below, petitioner's motion to amend is granted and his motion to vacate, set aside, or otherwise correct his sentence is denied in part. The Court finds that one of petitioner's ineffective assistance of counsel claims cannot be disposed of on the current record, however, and therefore will hold a hearing before making a determination on the merits of that claim.
BACKGROUND
Petitioner was convicted after a jury trial of being a drug courier for a large methamphetamine and cocaine trafficking organization. The evidence at trial showed that in October 1996, petitioner transported approximately 30 pounds of methamphetamine from California to Minnesota and delivered it to a waiting co-conspirator, Valdemar Posadas.
Posadas testified against McNeil at trial after he plead guilty to conspiring to distribute methamphetamine. Posadas testified that the supplier of the 30 pounds of methamphetamine was a person named Eustolio Vargas who lived in California. Posadas worked for Vargas. Vargas sold large quantities of methamphetamine and cocaine on a regular basis to a person in Minnesota named Narcisco Delgado. Vargas employed couriers to transport the drugs from California to Minnesota. Posadas' role was to fly to Minnesota and supervise the delivery of the drugs from the courier to Delgado or Delgado's designee. Posadas was paid a fee for doing this.
In October 1996, Vargas sent Delgado a shipment of 30 pounds of methamphetamine from California to Minnesota. Petitioner was the courier who transported the drugs to Minnesota in a newly acquired white Dodge pickup truck. Prior to the trip, Vargas and McNeil decided to re-register the truck in Utah with Utah license plates, which Vargas and petitioner thought would attract less police attention than California plates. While McNeil was driving across country, Posadas flew to Minnesota to await petitioner's arrival. Posadas stayed in an apartment in St. Paul provided by Delgado.
Elizabeth Cordova, Vargas' girlfriend, testified that she was aware that Vargas was selling large quantities of cocaine and methamphetamine to a person in Minnesota named "Guero" and that McNeil was a frequent drug courier for Vargas. Cordova was aware of at least three to five drug trafficking trips that McNeil made for Vargas, and she personally made at least one drug trafficking trip to Minnesota for Vargas. Cordova testified that Vargas paid McNeil $10,000 for each trip. The government granted immunity to Cordova in return for her testimony against McNeil.
Telephone records and search warrant evidence corroborated the testimony of the cooperating witnesses. FBI agents executed a search warrant at McNeil's residence in Minnetonka, Minnesota on April 2, 1997. In McNeil's bedroom, they found a piece of paper with the telephone number of both Posadas and Rosalina Lopez on it, as well as the address of the apartment where McNeil had delivered the 30 pounds of methamphetamine. Agents also found documents relating to the re-registering of the white Dodge pickup truck in Utah approximately a week before McNeil's trip to Minnesota.
McNeil testified in his own defense. He acknowledged that he knew Vargas, Cordova, and Posadas. He also admitted speaking with and meeting Lopez, but he denied receiving any money from her. McNeil, who was in the automobile credit repair and insurance business, stated that he and Vargas, who worked for an automobile dealer, would refer business to one another and that it was through this association that he met Cordova and Posadas. When McNeil moved to Minnesota, Vargas told him to contact Posadas, who had earlier moved there and opened a Mexican restaurant. McNeil testified that Posadas telephoned him in late October and asked if McNeil would visit him. McNeil agreed, and a woman gave him directions to the apartment where Posadas was staying. McNeil denied delivering or seeing any drugs at the location and, when Posadas subsequently contacted McNeil and requested that he send $118,000 to Vargas, McNeil declined. A number of defense witnesses corroborated various parts of McNeil's testimony.
On December 9, 1997, the jury found petitioner guilty on both counts charged in the Indictment. On November 18, 1998, the Court sentenced McNeil to the mandatory minimum term of 120 months imprisonment, to be followed by five years of supervised release. The sentence included a 31-month downward departure pursuant to U.S.S.G. § 5K2.0.
ANALYSIS
Petitioner alleges that his trial counsel provided ineffective assistance of counsel in the following ways: 1) he failed to preserve his alibi defense; 2) he failed to object to numerous hearsay statements and failed to preserve issues for appeal; 3) he failed to object to alleged improper statements made during the government's closing argument; 4) he failed to communicate a plea offer to petitioner; 5) he failed to request a two-level safety valve reduction under the guidelines and 6) other unspecified errors. Petitioner also alleges that his sentence violates Apprendi because the issue of drug quantity was not presented to the jury and proved beyond a reasonable doubt. The Court addresses each argument in turn.
I. Ineffective Assistance of Counsel
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that "his counsel's representation fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984); Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir. 1996). Under Strickland, there is a presumption that representation was competent and that the challenged decisions constituted the permissible strategic and tactical choices of counsel. Strickland, 466 U.S. at 689.
A. Alibi Defense
Petitioner first alleges that his counsel was ineffective in failing to preserve his alibi defense. Petitioner made virtually the same argument on direct appeal, which the Eighth Circuit squarely rejected. United States v. McNeil, 184 F.3d 770, 777 (8th Cir. 1999) ("Nor did the evidence in the case require the giving of an alibi instruction."). Absent an intervening change in the law or newly discovered evidence, courts do not reconsider claims previously resolved on direct appeal in a § 2255 habeas petition. English v. United States, 998 F.2d 609, 613 (8th Cir. 1993).
Moreover, the record reveals that petitioner's trial counsel did make a specific discovery request to the government pursuant to Rule 12.1 of the Federal Rules of Criminal Procedure for purposes of asserting an alibi defense. See Opposition of the United States to Petitioner's Petition under 28 U.S.C. § 2225, Attachment 1 (November 25, 1997, letter from trial counsel to the prosecution requesting the specific date and time that the offense occurred for the purpose of determining whether to assert an alibi defense). On this record, the Court does not find that petitioner's trial counsel was ineffective with respect to this allegation.
B. Failure to Object at Trial
Petitioner next alleges that his trial counsel failed to properly prepare for trial which resulted in his failure to object to numerous hearsay statements and failure to preserve issues for appeal. These errors, petitioner alleges, resulted in a heightened standard of review on appeal (plain error), which would not have applied had counsel raised these issues at trial.
To support this allegation, petitioner does not expressly state what statements trial counsel failed to object to, but rather refers the Court to the Eighth Circuit Court of Appeals decision. The Court thus assumes, as did the government, that petitioner seeks to challenge the same evidence in this petition, specifically, the admission of certain false identification documents for McNeil and certain testimony regarding earlier drug transactions by McNeil. In its opinion, the Eighth Circuit agreed with the District Court's analysis and decision to admit the evidence. Because this issue has already been rejected on direct appeal, it cannot be raised again in this petition. English, 998 F.2d at 613.
C. Failure to Object to Alleged Improper Statements at Closing Argument
In his third allegation, petitioner claims that trial counsel erred by failing to object to improper statements made by the prosecutor in his closing argument. Specifically, petitioner alleges that the prosecutor told the jury that the "defendant was broke, had bad credit, and had the opportunity being from a source city." According to petitioner, it was improper for the government to refer to petitioner's impoverished status as a motive for his actions and that these statements were not supported by the record.
The specific portion of the prosecution's closing to which petitioner now objects provides as follows:
MR PAULSEN: What we proved is that Charles McNeill in the summer and fall of 1996 had money problems, had bad credit, was out of work or was about to be out of work. He knew some drug dealers and he took the chance to make some easy money.
The Court finds no error in trial counsel's failure to object to these closing statements. The record reveals that the above-statements are supported by evidence put forth at trial. Indeed, the statements are based primarily on McNeill's own testimony.
D. Failure to Communicate Plea Offer
Petitioner next claims by signed declaration that his trial counsel failed to advise him of the government's pretrial plea offer to a four-year telephone count under 21 U.S.C. § 843(b). Petitioner contends that had the offer been communicated to him properly, including the offense level he was facing if convicted, he would have accepted the plea agreement. In an unsworn letter dated March 1, 2001 to the government, petitioner's trial counsel states that "while I see your letter offering Mr. McNeil a four-year "Phone Count," I do not see any correspondence from my office communicating your offer to Mr. McNeil." Trial counsel then states that "as a matter of practice, however, historically I communicate any and all offers I receive from the Prosecution to my clients."
28 U.S.C. § 2255 provides that "unless the motion and the files and records conclusively show that the prisoner is entitled to no relief, the Court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." On this claim, the Court finds that it cannot conclusively resolve this issue at this time, particularly absent affidavit testimony from petitioner's trial counsel. An evidentiary hearing is thus required.
E. Failure to Request Safety Valve Interview
Petitioner next alleges that his trial counsel should have requested an opportunity for him to earn the two-level safety valve reduction set forth in § 5C1.2 of the Sentencing Guidelines. The Court finds no constitutional error by trial counsel on this issue. A defendant can qualify for this reduction if, among other things, the court finds that "the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan. . . ." Providing a tell-all interview to the government would be very difficult for petitioner in this case given that he consistently maintained his innocence and testified as such at trial. To comply with § 5C1.2(5), petitioner would directly contradict his trial testimony, jeopardize his appeal and risk a two-level enhancement for obstruction of justice. On these facts, the Court cannot say that trial counsel was ineffective in failing to pursue a safety valve reduction.
F. Other Unspecified Errors
Petitioner next claims that his trial counsel "committed numerous other errors" but fails to elaborate any more specifically as to what those errors might be. Having no factual basis to evaluate petitioner's claimed deficiencies of his trial counsel, the Court summarily dismisses these claims.
II. Apprendi Claim
Finally, petitioner argues that his sentence should be vacated in light of the Supreme Court's recent decision in Apprendi v. New Jersey, in which the Supreme Court held that any fact, other than the fact of a prior conviction, which increases the statutory maximum for an offense must be proven to a jury beyond a reasonable doubt. 530 U.S. 466, 490 (2000).
Petitioner's Apprendi claim fails for two reasons. First, the Eighth Circuit has expressly held that Apprendi is not retroactively applicable on collateral review. United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) ("[W]e hold today that Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review."). Moss is now the binding precedent in this Circuit. Dukes v. United States, 255 F.3d 912, 913-14 (8th Cir. 2001) (reh'g en banc denied Oct. 12, 2001) (Moss prohibits consideration of the merits of Dukes' claim); Jarrett v. United States, 266 F.3d 789, 791 (8th Cir. 2001) ("While Moss was a product of a divided court, we are bound by its holding."); Murphy v. United States, Nos. 01-1291, 01-1415, 2001 WL 1203219 at *1 (8th Cir. Oct. 12, 2001) (reversing the district court's holding that Apprendi applies retroactively on collateral review in light of Moss). The caselaw petitioner relies upon in his motion to amend his pleadings does not dictate a different result. United States v. Branford, 246 F.3d 1107, 1114 (8th Cir. 2001), arose on direct appeal, not in the context of a § 2255 petition, and thus has no impact on Moss.
Second, even if Apprendi did apply retroactively on collateral review, petitioner's claim still fails because petitioner's 120-month sentence is well below the 20-year statutory maximum.
ORDER
Based on the foregoing, and all the records, files and proceedings herein, IT IS HEREBY ORDERED that:
1. Petitioner's motion to amend motion under 28 U.S.C. § 2255 [Docket 150] is GRANTED.
2. Petitioner's § 2255 motion to vacate, set aside, or correct his sentence [Docket No. 137] is DENIED in part;
3. Petitioner's claim of ineffective assistance of counsel regarding whether counsel communicated a plea offer will be determined after a hearing at a date and time to be set by the Court; and
4. Petitioner's § 2255 motion is DENIED in all other respects.