Opinion
Civil No. 03-980 ADM, Criminal No. 99-229(3) ADM/AJB
December 18, 2003
Jon M. Hopeman, Esq., Felhaber Larson Fenlon Vogt, P.A., Minneapolis, MN, on behalf of Petitioner
Jeffrey S. Paulsen, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Respondent
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Petitioner Mateo Morales' ("Petitioner") Motion to Vacate, Set Aside, Grant a New Trial, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket Nos. 269, 289]. Petitioner claims (1) his sentence is contrary to the sentencing laws of the United States, (2) the District Court violated the Court Reporter's Act by failing to record bench conferences, (3) his Sixth Amendment right to have counsel present at critical stages was violated, (4) that his trial and appellate counsel were ineffective and incompetent, and (5) his Fifth Amendment right to be sentenced based on reliable information was violated. Petitioner also requests an evidentiary hearing and discovery. The United States opposes his Motion in its entirety. For the reasons set forth below, Petitioner's Motion is denied in part and granted in part.
II. BACKGROUND
Petitioner was indicted on one count of conspiracy to manufacture in excess of 50 grams of methamphetamine in violation of 21 U.S.C. § 841(b)(1)(A) 846. See Indictment [Docket No. 28]. He and two co-defendants were convicted after a jury trial on November 9, 1999, and Petitioner was sentenced to 360 months imprisonment. See Judgment and Statement of Reasons [Docket No. 210]. His conviction was affirmed on direct appeal. United States v. Anderson, 236 F.3d 427 (8th Cir. 2001), cert. denied. 534 U.S. 956 (2001).
Petitioner brings the instant motion pursuant to 28 U.S.C. § 2255, challenging his conviction and sentence on numerous grounds.
III. DISCUSSION
A. Violation of Sentencing Laws
Petitioner argues that specifying a distinction between Schedule II and Schedule III methamphetamine was an essential, yet omitted, element of the offense. He relies on 21 U.S.C. § 812, which classifies liquid methamphetamine as a Schedule II controlled substance, while powder methamphetamine is listed in Schedule III However, 21 U.S.C. § 812(a) clearly states that the schedules are merely initial schedules to be "updated and republished on an annual basis." The current schedules, and those in place at Petitioner's sentencing, name all forms of methamphetamine under Schedule II. 21 C.F.R. § 1308.11 — 1308.15. Therefore, there was no reason for this distinction to have been made.
Petitioner concedes that the schedules were amended properly, but nonetheless argues that 21 U.S.C. § 812 continues to provide sentencing guidelines applicable to powder methamphetamine, despite amendment to the contrary. This argument is invalidated by the statute's specification that its schedules are intended only to serve as initial schedules, to be "updated and republished." Id. Since amendment has taken place, the initial schedules are now irrelevant and this contention lacks merit. Petitioner's claim of an Apprendi violation is equally unavailing, as it is based on the same Schedule II and III argument of a conflict between the statute and the regulations. As stated, no such conflict exists because the statute itself explicitly states that its content is subject to yearly updating and republication. 21 U.S.C. § 812(a). Furthermore, a § 2255 petitioner may not raise a retroactiveApprendi claim. United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001).
B. Violation of the Court Reporter's Act
Petitioner alleges that this Court violated the Court Reporter's Act, 28 U.S.C. § 753(b), by failing to record the contents of a bench conference, and thereby deprived him of his Fifth Amendment right to due process and a meaningful appeal of a key issue. Trial Tr. Day 2 at 146. Though the terms of the Act require only matters occurring in "open court" to be recorded, most decisions have required a record of bench conferences as well. E.g., United States v. Haben 251 F.3d 881, 889 (10th Cir. 2001); United States v. Winstead, 74 F.3d 1313, 1321 (D.C. Cir. 1996); United States v. Nolan, 910 F.2d 1553, 1559 (7th Cir. 1990).
It is the practice of this Court to record all rulings and any matters of substance at trial. Bench conferences related to minor scheduling issues (anticipated length of witness testimony, the timing of Court recesses, order of witness presentation) have not always been recorded. Occasionally, as apparently occurred in this case, it is this Court's practice to address at sidebar by way of triage, a potential evidentiary issue to expedite the trial and to keep counsel focused on the issues in the case. No counsel has ever been denied the right to make any matter of record which occurs at sidebar. If the unrecorded bench conference results in a dispute or a ruling the matter is immediately made of record.
Even if the Court Reporter's Act is violated, Petitioner must demonstrate actual prejudice in addition to a technical violation of the Act. Haber, 251 F.3d at 889; United States v. Kelly, 167 F.3d 436, 438 (8th Cir. 1999). Like all federal claims pursued in a § 2255 Motion, violations are cognizable only if they involve a "fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)): see also Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995).
Petitioner alleges sufficient prejudice occurred due to a failure to record a bench conference preceding the cross-examination of Special Agent Kyle Scheer. Petitioner's counsel was involved in a bench discussion that Petitioner claims resulted in a limitation on his lawyer's ability to cross-examine Special Agent Scheer on the issue of whether evidence was placed in incorrect evidence bags. Morales Aff. ¶ 7. Petitioner argues that cross-examination on this point was essential in order to establish doubt that a drug note and water cooler receipt belonged to him, which he continues to deny. Further, he claims that the failure to record the bench conference deprived him of the ability to appeal the result of the conference.
Petitioner's unsupported allegation of what he believes was discussed at the sidebar he did not attend is belied by the trial record, which demonstrates that Petitioner's counsel was able to pursue the issue of chain of custody of the evidence on cross-examination, and did so. Trial Tr. Day 2 at 147-50; see also M. at 136-45. Further, in a responsive affidavit, the prosecuting attorney states that he requested the bench conference in question because he believed Petitioner's counsel was going to attempt to exploit "an innocent and inadvertent placement" of another conspirator's birth certificate into Petitioner's evidence bag after documentary evidence was displayed to defense counsel. Paulsen Aff. ¶ 3. The switch occurred, according to the prosecutor's affidavit, at a pre-trial evidence review during which the sealed evidence bags were cut open and the defense attorneys were allowed to examine and handle the items contained in bags. Id. ¶ 4. The government therefore sought to ensure defense counsel did not inappropriately assert the misplacement of the item into Petitioner's bag was a result of tampering. Id. ¶¶ 5-6.
The prosecutor recalls the Court placing no restrictions on the cross-examination and asserts that Petitioner's counsel was limited only by his ethical obligation not to claim the evidence had been tampered with when he knew that was not the case. Id. ¶ 6; Resp't's Supplemental Mem. at 11. Moreover, photocopies of the bags' contents taken after Petitioner's arrest provide further evidence that the drug note and receipt Petitioner disavows were in fact taken from his person and placed in a bag separate from that containing the birth certificate. Trial Tr. Day 2 at 154-57. The testimony and documentation of the original seizure and placement of the items make it unlikely that any purported limitation on cross-examination would have damaged Petitioner's case.
Petitioner has produced no proof beyond his own affidavit that the failure to record this bench discussion prejudiced his case in any way. Petitioner proffers only his own hearsay testimony that his counsel informed him that the Court had not permitted him to tell the jury the evidence had been compromised or to inquire as to who opened the evidence bags and put the misplaced document into Petitioner's bag. The prosecutor's sworn statements of his recollection of the events indicate that Petitioner's attorney knew no tampering occurred and therefore asking the agent about who handled the bags would not assist his case. Paulsen Aff. ¶¶ 4-6. There is no basis for believing a matter of substance occurred at an unrecorded bench conference, and Petitioner certainly incurred no prejudice from the evidence handling issue he claims his counsel was restricted from pursuing.
C. Violation of Sixth Amendment Right to have Counsel Present at Critical Stages
Petitioner also contends that the Court violated his Sixth Amendment right to have counsel present at trial. Counsel is assured at all "critical" stages of trial. United States v. Ask 413 U.S. 300, 310-11 (1973); United States v. Wade 388 U.S. 218. 225 (1967). Petitioner claims that when his counsel stepped out of the courtroom to use the bathroom during a discussion of a co-defendant's jury instruction requests, the Court discussed a 404(b) jury instruction with those present. Trial Tr. Day 4 at 131-32. He asserts this resulted in an instruction that failed to disassociate Petitioner from evidence that allegedly implies previous methamphetamine activity on his part. However, the record indicates that the conversation did not involve a 404(b) instruction on previous methamphetamine activity by Petitioner, and that such an instruction was not an issue. Id. The discussion, as far as it pertained to Petitioner, involved a 404(b) instruction on a stolen motorcycle, which was given as requested to limit the purposes for which the jury could use the damaging evidence against Petitioner. Id.; Trial Tr. Day 5 at 21.
A 404(b) instruction regarding Petitioner's previous methamphetamine activity was not discussed because, contrary to Petitioner's claim, no evidence indicating such activity was offered during trial. Petitioner points to no direct statement of record, but relies on a comment elicited by co-defendant Anderson's counsel on cross-examination of Officer Jeff Jindra, read in court while impeaching another witness. The statement indicated that Petitioner and co-defendants had "been involved in cooking methamphetamine at various locations since [Mark] Nevala's release from prison." Trial Tr. Day 4 at 25. Petitioner claims that since the conspiracy spanned approximately June 1999 through August 6, 1999, and since prosecution witness Mark Nevala ("Nevala") was initially released from prison in January 1999, this statement constitutes evidence of methamphetamine activity outside of the conspiracy. This argument conveniently ignores that Nevala was sent back to prison soon after his January release and remained incarcerated until May 26, 1999, just prior to the conspiracy time frame. Trial Tr. Day 3 at 203. Nevala indicates that it was after his May release that methamphetamine activity with Petitioner commenced, and it is to Nevala's second prison release that Officer Jindra's testimony most clearly refers. Id. at 53-55. Petitioner was not denied the right to have counsel present at any critical stage of his trial.
D. Ineffective Assistance of Counsel
Additionally, Petitioner avers his trial and sentencing counsel were ineffective and incompetent in violation of his Sixth Amendment right to adequate representation. To prevail on such a claim, Petitioner must demonstrate both deficient performance and actual prejudice. Strickland v. Washington 466 U.S. 668, 687-88, 691-92 (1984). In the words of the Supreme Court, he must establish that "counsel's performance 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." Id. at 688, 694; Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir. 1996). This standard provides for a deferential review of counsel's performance and a presumption of competence. Strickland, 466 U.S. at 689. Petitioner's various claims of ineffective assistance are treated below.
1. Drug Schedules
Petitioner claims that counsel failed to argue that powder methamphetamine was a Schedule III, rather than a Schedule II substance. As shown above, under applicable law all methamphetamine is found in Schedule II. Counsel cannot be faulted for not arguing otherwise.
2. Bench Conference
Petitioner additionally asserts that counsel was ineffective for failing to request a record of the bench conference that he claims limited his ability to cross-examine Special Agent Scheer. The most obvious, logical reason for his counsel's decision not to make the matter of record is that no such adverse ruling occurred. Petitioner's counsel, a lawyer with extensive prosecutorial and defense experience, certainly knew how to protect his client's rights on this issue. Because there is no evidence of any prejudicial limitation and counsel did in fact proceed with a cross-examination regarding the contents, creation and security of the evidence bags, Petitioner has shown no deficient performance in declining to insist upon a recording of the bench discussion. Furthermore, the prosecution's trial evidence and uncontroverted affidavit testimony in opposition to the instant Motion indicate defense counsel could not have ethically made the tampering argument Petitioner claims he was precluded from asserting. See Paulsen Aff. ¶ 4; Resp't's Supplemental Mem. at 11. Accordingly, no prejudice has been established. See Strickland, 466 U.S. at 694.
3. Rule 404(b) Instruction
Next, Petitioner claims error in failing to object to evidence of his methamphetamine activity outside the conspiracy time frame, and failing to request a 404(b) instruction on such evidence. As discussed above, the allusions to methamphetamine production outside the time specified in the Indictment did not implicate Petitioner. Counsel was not ineffective for failing to request an instruction that may have had the adverse effect of linking Petitioner to prior drug activity when the jury had heard no evidence at all of his involvement before the onset of the conspiracy.
4. Failure to Cross-Examine
Petitioner further avers that trial counsel was ineffective for failing to cross-examine the government's chemist on the issue of the amount of methamphetamine involved in the conspiracy. However, co-defendants' counsel did contest the potential efficacy of the conspirators' methods in extensive cross-examination of the chemist. Trial Tr. Day 3 at 16-46. Further, Petitioner's counsel's choice not to cross-examine the chemist was not unreasonable under the Strickland standard. Rehashing the points made by co-counsel would have been cumulative and unnecessary. Cross-examining the chemist also may have shown an interest in discrediting the testimony about manufacturing the drugs that would have undercut Petitioner's defense that he was not involved in the conspiracy at all. 466 U.S. at 689 ("the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy'").
5. Failure to Hire Experts and to Object
Petitioner argues trial counsel was ineffective for failing to hire fingerprint and handwriting experts to analyze the drug note and receipt found on his person. He claims that when he heard that a drug note was attributed to him he told his counsel that he "felt it was not his handwriting on the note and that his fingerprints would not be found on the note," and that his counsel therefore agreed to seek out experts. Mem. of Pet'r in Supp. of Pet. at 46. However, Petitioner cites no authority for the proposition that failure to hire such experts amounts to unconstitutionally incompetent assistance of counsel. Even assuming that the conduct was unreasonable, Petitioner has not demonstrated resulting prejudice, since the government demonstrated convincingly at trial that the documents came from Petitioner's pocket and Petitioner offers no new rebuttal proof. Trial Tr. Day 2 at 153-57.
Relatedly, Petitioner claims trial counsel was ineffective for failing to argue to the jury that a co-conspirator's documents were mixed into Petitioner's evidence bag, which would have supported the theory that the receipt and note attributed to Petitioner actually belonged to Nevala, the witness. Although this precise point was not raised in closing, counsel did argue the similar point that the government's evidence was insufficient to establish that these items came from Petitioner. Trial Tr. Day 4 at 187-91. This tactical choice was objectively reasonable and entitled to deferential review under Strickland, particularly in light of the new testimonial evidence that Petitioner's attorney likely knew the items were inadvertently misplaced in the wrong evidence bag at an evidentiary review attended by all defense counsel, not tampered with by law enforcement officers. 466 U.S. at 694, 689; see Paulsen Aff. ¶ 4.
Petitioner next asserts error in counsel's failure to impeach Nevala's testimony that Nevala was involved in an incident on July 7th, a day in which he was actually in jail. See Trial Tr. Day 3 at 114. However, the trial record explains this discrepancy. Nevala admitted that he was not good with dates and that the incident occurred "[t]wo days after [he] had got out of jail," which was "probably around July 6th or 7th." Id. at 76. Failure to draw out this minor inconsistency is inconsequential.
Petitioner also claims his counsel's failure to object on several occasions renders his representation ineffective. First, Petitioner faults his counsel's failure to object to mention of the "Outcasts," an organization referenced in a note that co-defendant Shawn Anderson left for co-defendant Frank Rizzi. Trial Tr. Day 2 at 74-75. However, there was no mention that Petitioner was a member of this group, such that an objection to this testimony could have drawn an undesirable connection between Petitioner and the Outcasts.
Second, counsel erred, Petitioner argues, by failing to object to or ask for a limiting instruction on evidence that he was involved in an "insurance scam." Reference to the insurance scam was merely a part of the testimony regarding the stolen motorcycle incident and a limiting instruction for Petitioner was, in fact, given with regard to that evidence. Trial Tr. Day 3 at 54-56; Trial Tr. Day 5 at 21. This lack of objection caused no Sixth Amendment violation.
Third, Petitioner claims counsel should have objected to testimony from Nevala indicating Nevala was threatened by unidentified people. Trial Tr. Day 3 at 99. Again, there was no linkage between Petitioner and the threats. An objection to this would have highlighted the testimony and implied a connection to Petitioner.
Fourth, Petitioner avers that his counsel should have objected to testimony that he was unemployed at the time of the incident because it was more prejudicial than probative. See Trial Tr. Day 4 at 22. However, he offers no indication that the outcome of the trial would have been different but for this omission and therefore has shown no prejudice as required under the stringent Strickland standard. Strickland, 466 U.S. at 694
6. Drug Yield and Purity
Petitioner's central claim is that his counsel failed to sufficiently argue that the conspiracy involved less than 50 grams of actual methamphetamine. This alleged error is said to result from (1) neglecting to raise the issue of drug purity; (2) failing to call a defense expert witness to cast doubt on the government's theoretical yield figure of 92%; and (3) failing to cite or argue the proper subjective standard of production capacity for determining quality and quantity of methamphetamine output.
Petitioner contends that his sentencing counsel neglected to argue the issue of drug purity, despite the key distinction in the sentencing guidelines between pure methamphetamine and "a mixture or substance containing a detectable amount" of the drug. 21 U.S.C. § 841(b)(1)(A). He claims the government lacked sufficient proof that the "50 grams or more" charged in the Indictment and attributed to Petitioner for sentencing purposes were actual, pure methamphetamine. Citing United States v. Houston 338 F.3d 876 (8th Cir. 2003), Petitioner contends the theoretical conversion from precursor chemicals to drug amount must be reduced for both yield and purity. Houston however, involved a factual scenario where the evidence on which drug quantity was based consisted solely of the defendant's admissions of the amounts of methamphetamine he had produced on various occasions. Id. at 879, 880. The court found that because the defendant had not admitted to cooking pure, "actual" methamphetamine, the record contained no evidence to support attributing approximately 70 grams factual controlled substance to him. Id. at 881 (emphasis in original). In a footnote, the court referenced Sentencing Commission commentary noting that the average purity of trafficked methamphetamine had fallen to below 30 percent, such that an assumption of production of pure drug was unwarranted. Id. at 882 a 1. On this basis Petitioner asserts a right to be re-sentenced. In this case, however, Petitioner did not admit to manufacturing narcotics, but went to trial and did not testify. The drug amount, therefore, had to be determined by estimating the quantity of methamphetamine the recovered precursor chemicals would have produced had Petitioner and the co-defendants been able to prepare the intended product; a very different means of proof than inHouston, Id. at 879-80. Furthermore, as discussed below, in cases such as Petitioner's, the Eighth Circuit has affirmed use of theoretical yield calculations to establish quantities of actual methamphetamine without separate reductions for purity. United States v. Kessler, 321 F.3d 699, 704 (8th Cir. 2003); United States v. Eide, 297 F.3d 701, 703-04 (8th Cir. 2002).
Petitioner's challenges to his attorney's failure to allege insufficient evidence of both yield and purity are not supported by analogous authority. As recognized in the Eighth Circuit's Houston andEide opinions, calculating a drug quantity based on the expected yield of a specific amount of pseudoephedrine, the main precursor chemical, generally takes purity into account in the percentage reduction of precursor to narcotic product. At trial, the government's expert witness testified that the yield figure of pseudoephedrine to methamphetamine represented pure methamphetamine. Trial Tr. Day 3 at 15. Thus, an appropriate yield estimate would not need to be challenged on purity grounds as well. Counsel's performance, therefore, was not deficient for neglecting to pursue the distinct issue of purity.
For instance in the Eide opinion, the court specifically states that the expert testimony as to estimated yield of defendant's clandestine laboratory was "that the highest possible yield of actual methamphetamine from this precursor was 25.39 grams (92 percent of the 27.6 grams of pseudoephedrine)." Eide, 296 F.3d at 703-04 (emphasis added). The decision then explains that in rendering an individualized assessment, the expert concluded that based upon by-product recovered from defendant's equipment, defendant "would have attained a 40 to 50 percent yield" of methamphetamine from the amount of precursor seized.Id. at 704. Thus, the court is accepting that, in converting precursor to controlled substance, a yield determination takes account of purity by stating the results in terms of the yield of actual, as opposed to a mixture of, methamphetamine. See id.; see also Hopeman Aff. Ex. C p. 4 (summary of "Nazi" method of methamphetamine production stating that 60 grams of pseudoephedrine "will yield approximately 56 grams of a mixture containing methamphetamine" and that the process "typically will yield about 75% purity, or approximately one and one half ounces [42 grams] of pure methamphetamine" from the 60 grams of precursor). Although the concepts are sometimes conflated and used interchangeably, the practice of the expert witness chemists, as revealed in these cases, has been to refer to yield as the percentage of actual, pure methamphetamine that can be derived from a given quantity of pseudoephedrine precursor. Kessler, 321 F.3d at 704; Eide, 296 F.3d at 703-04: see also Houston 338 F.3d at 882 n. 1 (citing Eide in a manner indicating equation of low purity with low yield). The Eighth Circuit has accepted this method and terminology and has recently credited expert testimony of a defendant's home laboratory producing a 40 to 50% yield of actual, pure methamphetamine.Kessler, 321 F.3d at 704.
Similarly, trial and sentencing counsel were not ineffective in their handling of the question of drug quantity. Petitioner asserts that experts who could testify in contradiction to the 92% yield figure given by the government's Drug Enforcement Agency chemist were available and not utilized, and that this resulted in adverse sentencing consequences. See Trial Tr. Day 3 at 14-15. However, co-defendant Anderson's counsel did procure an expert report, relied on by all three defense attorneys in sentencing arguments, which opined that the government's yield estimate was very doubtful outside of a professional lab. Sentencing Tr. at 5, 23. As part of his argument challenging the prosecution's quantity figures. Petitioner's trial counsel directed the Court's attention to and adopted this report. Position Paper on Sentencing at 15 [Docket No. 186]. The decision not to hire an additional expert under such circumstances does not amount to ineffective assistance.
The government expert's testimony was that a 100% theoretical yield of 100 grams of pseudoephedrine would result in 92 grams of pure methamphetamine, hence the reference to a 92% yield. Trial Tr. Day 3 at 14-15; Erskine Aff. ¶ 3 (Resp't's Supplemental Mem. Ex. A).
Petitioner also alleges it was constitutionally deficient representation for his counsel to neglect to cite a study by the Iowa Division of Criminal Investigation Laboratory, published in the fall of 1999, finding yields of clandestine laboratories well below 92% and as low as 15%. While the Iowa study does contradict the government's yield figure as discussed below, Petitioner references no authority for the proposition that failure to include this study as part of a larger argument attacking the evidence of methamphetamine quantity renders counsel's performance unreasonable. In thorough memoranda objecting to several findings of the Pre-sentence Investigation Report and advocating arguments for a shorter sentence, trial counsel focused on the issue of the amount of drugs attributed to Petitioner. Motion to Correct Probation Report [Docket No. 185]; Position Paper on Sentencing sec. IV. Petitioner's attorney at sentencing specifically incorporated the objections and points raised by trial counsel, including the contention that no reliable evidence supported a factual finding that Petitioner had been involved in the manufacturing of at least 50 grams of methamphetamine. Sentencing Tr. Day 2 at 6; Position Paper on Sentencing at 11-15. Petitioner has not shown his attorneys' representation in this respect fell below the level required by the Sixth Amendment.
However, the adequacy of counsels' performances in arguing insufficient evidence of attributable drug quantity does not end the inquiry into this issue. Petitioner's arguments regarding the unreliability of the general, theoretical 92% yield used in this case, which the government's expert conceded was improbable, carry weight and require further factual development. See Trial Tr. Day 3 at 15.
Studies and expert calculations presented in other methamphetamine cases have found that outside of a professional laboratory setting, average yields of clandestine labs are only in the 40-50% range. See, e.g., Kessler, 321 F.3d at 704; Eide, 296 F.3d at 704; Eschman, 227 F.3d at 888-89; see also Hopeman Aff. Ex. C (study published in 1999 by Iowa chemists on methamphetamine yield in clandestine labs). The often-cited study by the Iowa Division of Criminal Investigation Laboratory reported general yields of 40-50% and as low as 15%, and varying degrees of purity. Hopeman Aff. Ex. C.
The government counters that even assuming a yield of 40 to 50%, the two main quantities of pseudoephedrine proved at trial would produce 64 to 80 grams of actual methamphetamine. Because these amounts are greater than the 50 grams needed to trigger the relevant base offense level, the government contends there is no prejudice and therefore no colorable claim of a Strickland violation. The flaw in this argument is that there is no particularized evidence of Petitioner's cooking abilities or the viability of this clandestine laboratory, as mandated by the pertinent legal standard. United States v. Cole, 125 F.3d 654, 655 (8th Cir. 1997); of Eide, 297 F.3d at 704-05 (detailing evidence specific to defendant, his lab, the manufacturing processes used, and recovered by-product).
Whether the issue is construed as one of yield or purity, the drug quantity findings in Petitioner's case must be based on a determination of the production capability of the particular Defendants and their lab, not that of an average cook. Eide, 297 F.3d at 705: see also Cole, 125 F.3d at 655. When no narcotics are recovered, the production capacity of a clandestine laboratory may be estimated "from the quantity of the precursor chemicals seized together with expert testimony about their conversion to methamphetamine." Eide, 297 F.3d at 705. The relevant inquiry, however, "is not what a theoretical maximum yield would be, or even what an average methamphetamine cook would produce, but what [Defendants] themselves could produce." Anderson 236 F.3d 427, 430. As noted in Eide, the study cited to support the expert testimony in that case found clandestine lab yields from 15 to 63%. Id. at 704 n. 2. Beginning with the 172 grams of precursor pseudoephedrine attributable to Petitioner (the total of the amounts seized at a co-defendant's residence and a subsequent purchase), even assuming a 25% yield causes the drug quantity to fall below the 50 grams alleged in the Indictment. Therefore, Petitioner has raised fact questions as to the accuracy of the drug quantity findings used in his sentencing, given the lack of particularized evidence of the production capabilities of Petitioner and his co-defendants' laboratory. Trial Tr. Day 3 at 14-15: see also United States v. Eschman, 227 F.3d 886, 887-91 (7th Cir. 2000) (finding sentencing court's reliance on 100% yield (92% precursor to methamphetamine conversion) without individualized assessment of defendant's capabilities raised the possibility of due process violation). Here the omissions in the record of particularized capability implicate Petitioner's due process right to be sentenced on the basis of reliable information. See Eschman 227 F.3d at 891 (remanding for new quantity determination based on reliable, individualized evidence of manufacturing capability of defendant). The difference in applicable offense levels based upon the amount of narcotics proven raises the potential for establishing an illegal sentence, if the evidence does not support the Guideline range on which Petitioner's term of imprisonment was based. See 21 U.S.C. § 841(b)(1). Petitioner's request for an evidentiary hearing to contest the question of the drug quantity determination is granted.
7. Conflict of Interest
Lastly, in a supplemental memorandum, Petitioner claims ineffective assistance by his appellate counsel for failure to cite a supportive case in arguing Petitioner's trial was incurably tainted by his trial attorney's conflict of interest. The government responds that this assertion is untimely and procedurally barred, as it was raised on direct appeal.
Though this most recent allegation was submitted long past both the statutory deadline and the equitable time limitation prescribed by previous Court order, the Court will address this claim because Petitioner now raises ineffective assistance of appellate counsel, which obviously was not presented on direct appeal. Petitioner has not proven his representation on appeal fell below the level guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 688. Petitioner's counsel thoroughly argued, citing the relevant legal standards, that the trial attorney's prior prosecution of Petitioner in state court was a highly prejudicial conflict of interest that established Petitioner's right to a new trial as well as ineffective assistance of counsel. Appellate Br. at 10-15. The Eighth Circuit rejected this claim and denied the appeal. Anderson 236 F.3d at 430. Petitioner now asserts this advocacy was deficient because appellate counsel failed to cite United States v. Ziegenhagen 890 F.2d 937 (7th Cir. 1989), in which the court presumed prejudice to the defendant due to his counsel's former role in prosecuting the defendant's earlier convictions. Id. at 940-41.
Omitting citation of this non-controlling, albeit analogous, case does not amount to constitutionally inadequate representation. See United States v. Garcia, 997 F.2d 1273, 1283 (9th Cir. 1993) (failure to cite non-binding decision did not render legal assistance ineffective). Though Ziegenhagen may have supported Petitioner's argument, it is factually distinguishable and is not an Eighth Circuit ruling. Failure to cite this opinion, whether intentional or inadvertent, does not rise to level of prejudice necessary to substantiate ineffective appellate counsel. See 14