Opinion
4:99CR3043.
April 11, 2005
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
The defendant, John Edward Mull, has filed a motion challenging his sentence pursuant to 28 U.S.C. § 2255. The defendant's motion raises seven issues: 1) whether at the time of trial and on appeal the defendant's counsel provided ineffective assistance because he failed to argue that the indictment was defective; 2) whether at the time of the trial counsel provided ineffective assistance because he failed to discover certain "impeachment evidence"; 3) whether counsel provided ineffective assistance because he failed to secure the testimony of a certain witness; 4) whether counsel provided ineffective assistance because he failed to advise the defendant of the benefits and detriments of testifying in his own behalf, failed to advise him of his right to testify, and "unreasonably recommended that the defendant not testify in his own defense"; 5) whether counsel provided ineffective assistance because his closing argument was "disjointed, lacked a coherent theme, and failed to present to the jury a plausible discussion of the facts and law that would support a verdict of not guilty"; 6) whether during trial and on appeal counsel provided ineffective assistance because he failed to advance a specific argument based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. R.L.C., 503 U.S. 291 (1992); and 7) whether the length of the defendant's sentence is in excess of the maximum sentence allowed by law. (Filing 554 at 1-2; see also filings 530, 552.)
A hearing was held upon the defendant's motion on August 30, 2004, and October 8, 2004, and written arguments have been submitted by the parties. (See filings 558, 569, 574, 575.) The motion is now ripe for resolution. My decision and the reasons supporting it, including the findings of fact and conclusions of law required by § 2255, are set forth below.
I. BACKGROUND
On April 23, 1999, Mull was indicted along with co-defendants Lemont Baggett, Louis Elmore McAlister, Lamar J. Banks, Markham Deshay Jones, Carl Richard Brooks, and Tracey A. Jones. (See filing 1.) Count one of the indictment charged all defendants with conspiring to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846. Counts two through four charged co-defendant Tracy A. Jones with distributing cocaine base in furtherance of the conspiracy, in violation of 21 U.S.C. § 841(a)(1). The indictment did not identify the specific quantity of cocaine base involved in the charged offenses.
The indictment charges that the defendant participated in a conspiracy to "distribute and possess with intent to distribute a mixture or substance containing a detectable amount of cocaine base." (Filing 1 (emphasis added).)
Mull's co-defendants pleaded guilty to the charges, and several of them entered into cooperation agreements with the government. (See filing 381 at 2 n. 2.) Mull pleaded not guilty, (see filing 28), and a jury trial commenced on June 20, 2000, (see filing 315). At the outset of the trial, counts two through four of the indictment were dismissed. (See filing 315.) The government then called some thirty witnesses to testify against Mull. (See filing 335.) Among these witnesses were Sergeant Michael Garnett, Officer Joann Jindrick, Officer Sharon Dempsey, Officer William Koepke, Officer Richard Lutz, Officer Cindi Arthur, Officer Brian Ward, Officer John Brandl, Captain Duaine Bullock, Sergeant Dennis Miller, and Investigator James Sydik of the Lincoln Police Department (LPD), and Deputy Sheriffs Jeff Bliemeister and Scott Gaston of the Lancaster County Sheriff's Office. These witnesses provided background information concerning the drug trade in Lincoln, Nebraska, (see filing 375, Tr. at 25-50); described their roles in coordinating controlled purchases of crack cocaine ("crack") from the defendant's residence on November 17 and 24 and December 2, 1998, (see id. at 88-99, 107-119, 164-165, 172-173, 175-192, 410-421, 436); described their searches of hotel rooms occupied by persons who associated with the defendant, along with the evidence seized therein, (see id. at 1250-1279, 1289-1297); described their search of the defendant's residence, along with the evidence seized therein, (see id. at 1298-1304, 1308-1313, 1316-1317, 1321-1331, 1338-1356); and described traffic stops involving the defendant and his associates, (see id. at 1187-1188, 1195-1197, 1199-1202, 1206-1208, 1214-15, 1281, 1285-86).
Another group of witnesses testified pursuant to the "cooperation" provisions in their plea agreements. These witnesses included Louis McAlister, Eva Duffield, Bridgette Mann, Tracy Black, Wendy Hendrix, Christine Freeman, Lamar Banks, Gizele Graves, Markham Jones, Lemont Baggett, Bryant Williams, Darell Dubry, Michael Parrow, and Gina Kepler. Their testimony is summarized below.
Michael Parrow's name does not appear on the witness list. (See filing 335.) However, his testimony may be found in the trial transcript beginning on page 1129. (See filing 375, Tr. Vol. VI, at 1129.)
McAlister testified that he traveled from Mississippi to Lincoln to sell crack and that the defendant assisted by introducing him to various people who were involved in the drug trade. (See filing 375, Tr. at 241, 257-261, 269-270.) The defendant, McAlister, and an Eric Michael traveled around the city in a rental car while the defendant and Michael sold crack. (See id. at 262-265, 267, 278-280.) McAlister also observed the defendant selling crack at his house, (see id. at 268), and eventually McAlister and Michael made sales at the defendant's house as well, (see id. at 272-278, 293, 296). McAlister paid the defendant in cash or in crack in exchange for his services, which included the use of the house and the making of introductions. (See id. at 287-89.) After a time, McAlister used the defendant to make crack sales on McAlister's behalf. (See id. at 297-299.) Finally, McAlister described an occasion when he and the defendant "cooked" powder cocaine into crack. (See id. at 302-303).
Bridgette Mann testified that in 1998, she worked for the LPD narcotics unit as a confidential informant. (See filing 375, Tr. at 516.) While working in this capacity, Mann visited the defendant's house and made two controlled purchases of crack from the defendant on November 17, 1998. (See id. at 518-531.) She made yet another controlled purchase from the defendant on November 24, 1998. (See id. at 547-553.) On December 2, 1998, Mann returned to the defendant's house and made a controlled purchase from Eric Michael. (See id. at 554-558.) Mann testified that prior to these controlled purchases, she occasionally bought crack from the defendant and from others at the defendant's house. (See id. at 568-575, 581-582.)
Christine Freeman testified that during the winter of 1998, she drove Lamar Banks to the defendant's house to purchase crack. (See filing 375, Tr. at 743, 747, 749-751.) Lamar Banks testified that he introduced Eric Michael to the defendant, and that on several occasions during the fall of 1998 he took Michael to the defendant's house to sell crack to the defendant. (See id. at 773-76, 778.) Less frequently he brought a Lemont Baggett to the house to sell crack to the defendant. (See id. at 781-782.) Banks also testified that on occasion, he personally engaged in crack deals with the defendant. (See id. at 779.)
Markham Jones testified that beginning in November 1997, he assisted Eric Michael in distributing crack in Lincoln, Nebraska, and he took Michael to the defendant's house to sell crack. (See filing 375, Tr. at 955-960, 973-974.) Jones also visited the defendant's house on his own and purchased crack from the defendant or from others acting through the defendant. (See id. at 961-965.)
Lemont Baggett testified that he distributed crack in Lincoln from approximately September 1998 through January 1999. (See filing 375, Tr. at 990-992.) He was introduced to the defendant by Markham Jones, (see id. at 996), and in November 1998 he gave the defendant a sample of crack in the hope of setting up a "future business," (id. at 1000, 1003-04). Thereafter, Baggett gave the defendant crack to sell on his behalf. (See id. at 1001-02, 1009-13.) In December 1998, Baggett returned to the defendant's house to sell more crack. (See id. at 1005-07.) However, Baggett decided not to have further dealings with the defendant, in part because he was not making as much money as he expected by working through the defendant. (See id. at 1015-16.)
Bryant Williams testified that he sold crack in Lincoln from 1997 to 1999. (See filing 375, Tr. at 1047.) At the defendant's invitation, Williams went to the defendant's house and sold crack to two people inside. (See id. at 1049-1051.) He gave the defendant a $30 piece of crack in exchange for arranging the sale. (See id. at 1055-1056.) Two or three weeks after this transaction, Williams sold the defendant $50 worth of crack. (See id. at 1056-1057.)
Eva Duffield testified that she bought crack from the defendant over the course of approximately one year. (See filing 375, Tr. at 474-477.) She also witnessed a transaction between the defendant and another individual. (See id. at 478-479.)
Tracy Black testified that in 1998 the defendant came to her residence with two other individuals, and that these individuals gave her a free sample of crack. (See filing 375, Tr. at 596-602.) Later, she visited the defendant's house and purchased crack from him and from others who were there. (See id. at 603-06, 608, 612-614.)
Wendy Hendrix testified that in 1998 she purchased crack at the defendant's house regularly, and that ordinarily the deals "went through" the defendant. (See filing 375, Tr. at 660-661, 664-666.) She also testified that she bought crack from the defendant and that she witnessed him "cooking" crack on one occasion. (See id. at 668, 670.)
Gina Kepler testified that the defendant came to her residence to sell crack to various people. (See filing 375, Tr. at 1163-1165, 1168-69.) Sometimes, he came to her residence on his own, but often he came with Eric Michael. (See id. at 1168-70.) She also testified that on one occasion, she went to the defendant's house to purchase crack from Michael. (See id. at 1170-71.)
Gizele Graves testified that she sold crack to the defendant on or about the Thanksgiving holiday in 1998, and that she purchased crack from the defendant in October 1998. (See filing 375, Tr. at 813-814, 816-817.)
Darell Dubry testified that he occasionally obtained crack from Robin Claypool, (see filing 375, Tr. at 1073-1074), and he described an occasion when he, Claypool, and Michael Parrow brought a bag of marijuana to a house on 25th Street in Lincoln. (See id. at 1076-1079, 1081-1082.) Another witness identified this house as the defendant's residence. (See id. at 104-107, 109.) According to Dubry, Claypool took the bag of marijuana into the house and returned to the vehicle where Dubry and Parrow were waiting. (See id. at 1079-1080, 1084-1085.) After a time the defendant came out of the house, approached the vehicle, and gave Claypool a substance that Dubry believed to be crack. (See id. at 1085-1088.) Parrow described the same incident, though his version of events differs from Dubry's in a number of particulars. (See id. at 1133-1146, 1146-1147, 1150.)
In addition to the "law enforcement" and "cooperating" witnesses noted above, the government called Johanna Ramsey, Virgil Allen, and Derek Allen to provide testimony. Ramsey testified that she dated McAlister and rented vehicles for him. (See filing 375, Tr. at 389-391.) Virgil Allen testified that he accidently left his cell phone at the defendant's residence, and it was not returned to him for a week. Virgil and his brother, Derek Allen, testified that the phone's bill included charges for calls to unfamiliar out-of-state locations. (See id. at 368-373, 383.)
The defense called two witnesses. First, Michael Levine, an expert with extensive law enforcement experience and special knowledge concerning various methods of working with informants, criticized the LPD officers' handling of the controlled substances purchases at the defendant's residence. (See filing 375, Tr. at 896-914.) Second, the defendant called Investigator Sydik of the LPD, who answered various questions about the department's investigation of the defendant and his associates. (See id. at 1388-1400.)
On June 30, 2000, the jury found the defendant guilty. (See filing 337.) At sentencing, I concluded that the defendant's criminal history category was III and that the total offense level was 36. (See filing 422 at 66:22-23.) Noting that "[u]nder the circumstances, where the jury did not make determinations regarding the amount of illegal drugs involved nor of possession of a gun, I'm limited to a range between 235 and 240 months," (id. at 66:23-67:2), I sentenced the defendant to 240 months' imprisonment, three years of supervised release, and a $100 special assessment, (see id. at 67:2-10; see also filings 397, 401). The defendant appealed his conviction and sentence, (see filing 402), and the Eighth Circuit affirmed, (see filing 504); see also United States v. Mull, 40 Fed.Appx. 300 (8th Cir. 2002) (per curium). The defendant then filed a motion to vacate his sentence, (see filing 530), which he later amended with the assistance of appointed counsel, (see filing 552). A hearing was held on this motion on August 30, 2004, and October 8, 2004, (see filings 558, 569), and written arguments were filed, (see filings 574, 575). The defendant argues that, for the reasons summarized in the Joint Pretrial Hearing Order, (filing 554), his conviction and sentence must be set aside, the indictment against him must be dismissed, and he must be discharged from confinement; alternately, he seeks a new trial or, at minimum, resentencing, (see filing 574 at 17).
II. STANDARD OF REVIEW
A motion to vacate, set aside, or correct a sentence may be based upon the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." 28 U.S.C. § 2255.
Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice. A movant may not raise constitutional issues for the first time on collateral review without establishing both cause for the procedural default and actual prejudice resulting from the error.United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citations omitted). In other words, constitutional claims which could have been raised on direct appeal will not ordinarily be considered on a motion made pursuant to 28 U.S.C. § 2255 unless the movant can show cause for his procedural default and prejudice resulting from the error. See Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994).
A showing of ineffective assistance of counsel can establish both cause for a defendant's procedural default and prejudice resulting therefrom, thereby allowing a defendant to overcome the procedural default caused by his failure to raise issues on direct appeal. See United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). In order to establish an ineffective assistance of counsel claim, the defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. See id. (quoting Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988)); Strickland v. Washington, 466 U.S. 668, 687 (1984).
The first part of this test is met when the defendant shows that counsel "failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibit[ed] under similar circumstances." The second part is met when the defendant shows that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Apfel, 97 F.3d at 1076 (quoting Cheek, 858 F.2d at 1336). In order to satisfy the first part of the test, the defendant must overcome a strong presumption that "counsel's conduct falls within a wide range of reasonable professional assistance. . . ."Strickland, 466 U.S. at 689. However, a court need not address the first part of the test at all if the movant cannot prove prejudice under the second prong of this test. See Apfel, 97 F.3d at 1076.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
As I have noted above, the defendant's motion raises seven issues. I shall analyze each issue in turn.
Preliminarily, I note that most of the defendant's claims depend upon a showing that the defendant's attorney provided ineffective assistance at trial or on appeal. The defendant suggests that "[t]he cumulative effect of counsel's errors in not interviewing or calling witnesses to contradict the government's witnesses, in not fully attacking the credibility of the witnesses who testified, and in not calling the defendant to testify in his own defense, paints a bleak picture of the fairness of this trial." (Filing 574 at 16-17.) However, the Eighth Circuit has held that "[e]rrors that are not unconstitutional individually cannot be added together to create a constitutional violation," and "[n]either cumulative effect of trial errors nor cumulative effect of attorney errors are grounds for habeas relief." Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996) (citations omitted). In other words, I shall consider each allegation of ineffective assistance individually; the allegations will not be pooled in order to ease the defendant's burden of demonstrating the ineffectiveness of his counsel.
Though Wainwright concerned a state prisoner's petition for habeas corpus relief, the court's rejection of the cumulative error doctrine is equally applicable in § 2255 cases. See, e.g., United States v. Robinson, 301 F.3d 923, 925 n. 3 (8th Cir. 2002) (noting that the district court properly refused to consider the cumulative effect of alleged errors in ruling on § 2255 motion). See also 28 James Wm. Moore, et al., Moore's Federal Practice § 672.02[2][a] (3d ed. 2001) ("Indeed, with few exceptions, legal principles and prior caselaw related to both provisions [§ 2254 and § 2255] are treated interchangeably by the courts.").
I also note that the defendant's counsel was not called upon to present any evidence in connection with the instant motion.
A. Whether Counsel Was Ineffective Due to His Failure to Argue that the Indictment Was Defective
The defendant argues first that his counsel provided ineffective assistance because he failed to challenge the sufficiency of the indictment. He states,
Defendant's counsel, at time of trial and on appeal, was ineffective in presenting and preserving an argument that the Indictment was defective in that it failed to allege a violation of the relevant penalty provisions under 21 U.S.C. § 841(b). The Defendant claims he was prejudiced because a timely challenge to the sufficiency of the Indictment would have resulted in the charges being dismissed.
I take it that the defendant means to argue that counsel was ineffective because he failed to present and preserve the particular argument.
(Filing 574 at 2.) More specifically, the defendant argues that "a particular penalty provision and/or drug quantity is an element of the offense," (id. (citing Apprendi v. New Jersey, 530 U.S. 466 (2000))), and that "[a]n attorney using reasonable skill, care and diligence would have noticed the defect and filed a motion to dismiss or quash the indictment," (id. at 3.) (See also filing 530 at 11-13.)
It is true that the indictment does not include the "penalty provision" cited by the defendant. (See filing 1.) However, this did not render the indictment legally insufficient. InUnited States v. Carter, 270 F.3d 731 (8th Cir. 2001), the Eighth Circuit considered and rejected the argument that the indictment was insufficient due to its failure to cite a penalty provision. As the court explained,
Rule 7(c)(1) of the Federal Rules of Criminal Procedure states that "[t]he indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." (emphasis added). The indictment "shall state the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated." Id. (emphasis added). An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. See United States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993) (citing United States v. Young, 618 F.2d 1281, 1286 (8th Cir. 1980)). An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.Carter, 270 F.3d at 736. Thus, it is clear that an indictment is not necessarily insufficient if it does not set forth the applicable penalty provision. The indictment in this case charged the offense for which the defendant was convicted, and after considering the principles described in Carter, I find that the indictment is not insufficient.
I also reject the defendant's related suggestion that the indictment was insufficient because it failed to allege a specific drug quantity. (See filing 574 at 2 (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).) Under Apprendi, the drug quantity does not have to be charged in the indictment unless the government seeks "penalties in excess of those applicable by virtue of the elements of the offense alone." United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000). As the Eighth Circuit noted in its opinion resolving Mull's direct appeal, Mull's sentence was "limited . . . to 240 months, the maximum sentence authorized by 21 U.S.C. § 841(b)(1)(C) for a cocaine base crime charged without reference to quantity." (Filing 504 at 5 (citing Aguayo-Delgado, 220 F.3d at 933)); see also United States v. Mull, 40 Fed.Appx. 300, 303-304 (8th Cir. 2002) (per curium). Thus, given the state of federal sentencing law in this circuit at the relevant time, Mull's indictment was not insufficient for failing to allege a specific drug quantity. (See also infra Part III.F.)
Since the penalty provision and drug quantity are not elements of the offense charged in the indictment, the indictment was not rendered insufficient due to its failure to include those terms. Therefore, it is clear that the defendant cannot show that "there is a reasonable probability that, but for counsel's [failure to challenge the sufficiency of the indictment], the result of the proceeding would have been different." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (quoting Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988)). In other words, the defendant cannot show that he was prejudiced by counsel's failure to challenge the indictment, and the first claim raised by the defendant in support of his § 2255 motion must be rejected.
The defendant also argues that since the indictment did not include a penalty provision or a drug quantity, the evidence at trial necessarily departed from the facts presented to the grand jury, which in turn resulted in a variance or constructive amendment to the indictment. (See filing 530 at 9-15 (citing,inter alia, United States v. Stuckey, 220 F.3d 976, 981 (8th Cir. 2000); Hamling v. United States, 418 U.S. 87 (1974)); see also filing 574 at 2.) However, there is no indication that the jury convicted the defendant of an offense other than that charged in the indictment, or that the evidence against which the defendant expected to defend changed between the time of the indictment and the conclusion of the trial. See Stuckey, 220 F.3d at 981 (discussing distinction between a constructive amendment and a variance). Thus, the defendant has not shown that he was prejudiced by defense counsel's failure to argue that the absence of a reference to a penalty provision or a drug quantity in the indictment resulted in a constructive amendment or variance. See United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
B. Whether Counsel Was Ineffective Due to His Failure to Discover and Use Certain Impeachment Evidence
The defendant argues that his counsel provided ineffective assistance because he failed to discover certain "impeachment evidence" and present it at trial. He states,
Defendant's counsel, at the time of trial, was ineffective in failing to investigate and discover impeachment evidence related to the in-court testimony of Lemont Baggett, which included other in-court testimony of Lemont Baggett which was inconsistent with his trial testimony in this case. The Defendant claims he was prejudiced because the credibility of Lemont Baggett was critical to the government's case, [and therefore] impeaching his incriminating testimony would have raised reasonable doubt in the case against the Defendant.
(Filing 574 at 7.) (See also filing 530 at 18-19.)
Lemont Baggett was indicted along with the defendant, but he ultimately pleaded guilty, (see filing 274), and became a witness for the government against the defendant, (see filing 335; see also supra Part I). On September 24, 1999, prior to his guilty plea, Baggett testified in a hearing concerning his motion to suppress. (See filing 191 at 99-110.) Mull concedes that Baggett's testimony in this hearing did not "directly touch upon" the matters he testified to during Mull's trial, (see filing 574 at 7); moreover, Mull has not referred me to any hearing testimony that is inconsistent with Baggett's trial testimony. I therefore find that the defendant's suggestion that Baggett provided testimony in the suppression hearing "which was inconsistent with the trial testimony in this case," (filing 574 at 7), is unsupported by the record.
However, a close reading of the defendant's brief suggests that the defendant does not truly mean to argue that Baggett's prior testimony is inconsistent with his testimony at the defendant's trial. Instead, the defendant argues that the government has reversed its opinion of Baggett's credibility, and that this reversal, if it had been presented to the jury through the cross-examination of Baggett, would have harmed Baggett's credibility in the eyes of the jury. Specifically, the defendant claims that during the suppression hearing, "Baggett testified that the arresting officer was lying about the circumstances [surrounding law enforcement officers' searches of Baggett's car]." (Filing 574 at 8.) The Assistant United States Attorney then made the following comments during her closing argument in Baggett's suppression hearing: "Mr. Baggett's testimony [that he did not consent to searches of his car] is completely unbelievable. . . . This is a person with an extremely long and bad criminal record." (Filing 191, Tr. at 155:6-18.) The defendant argues, "Baggett then testified against Mull in this case, with the prosecution obviously vouching for the witnesses' credibility. Mull submits that Baggett should have been cross-examined about his testimony at the suppression hearing and the conclusion by the government that his testimony at the hearing was not credible. This would have attacked his credibility. Mull's trial counsel did not do so." (Filing 574 at 8.) (See also filing 560 at 47:19-48:14.)
I do not read this statement as an argument that the government impermissibly vouched for Baggett's credibility at Mull's trial. See, e.g., United States v. Beaman, 361 F.3d 1061, 1065 (8th Cir. 2004) ("Improper vouching occurs when a prosecutor refers to facts outside the record, implies that the witness's testimony is supported by facts not available to the jury, gives an implied guarantee of truthfulness, or expresses a personal opinion regarding witness credibility.") Rather, I take it that the defendant simply seeks to point out that in a different proceeding, the government labeled the testimony of one of its witnesses "completely unbelievable."
In sum, then, the defendant claims that his trial counsel was ineffective because he did not cross-examine Baggett about his testimony in the suppression hearing or point out that this testimony caused the government to comment, "Mr. Baggett's testimony is completely unbelievable." I note parenthetically that the defendant has not argued that his trial counsel should have called the Assistant United States Attorney as a witness to provide opinion evidence concerning Baggett's credibility. (See, e.g., filing 574 at 8 ("Mull submits that he was denied effective assistance of counsel by his counsel's failure to obtain and review the transcript of the suppression hearing andcross-examine Baggett with respect to his prior testimony.") (emphasis added).)
I shall assume, for the purposes of this motion, that if the defendant had attempted to use the transcript of the suppression hearing — including the prosecutor's argument — to attack Baggett's credibility at Mull's trial, he would have been permitted to do so. Nevertheless, I cannot conclude that counsel's failure to engage in this tactic amounts to ineffective assistance. As the government correctly notes, Baggett was one of thirty witnesses who provided testimony against the defendant. Even if the suppression hearing transcript had been used successfully to attack Baggett's credibility and the jury had disregarded completely Baggett's testimony, the remaining evidence clearly demonstrates Mull's involvement in the charged conspiracy. See United States v. Robinson, 301 F.3d 923, 925-26 (8th Cir. 2002). In other words, the defendant has failed to demonstrate that there is a reasonable probability that, had Baggett been questioned about his testimony in the suppression hearing and the government's comments about that testimony, the result of Mull's trial would have been different. See id.;United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Since there has been no showing that the defendant was prejudiced by counsel's failure to cross-examine Baggett concerning his testimony at his suppression hearing, the defendant's claim must be rejected.
It should be noted that the defendant's counsel did not utterly fail to attack Baggett's credibility. (See, e.g., filing 375, Tr. at 1016-1019, 1021-1029.)
C. Whether Counsel Was Ineffective Due to His Failure to Secure the Testimony of Robin Claypool
The defendant argues that his counsel provided ineffective assistance because he did not locate Robin Claypool and call him to testify at trial. Specifically, he argues,
Defendant's trial counsel failed to interview and secure the trial testimony of Robin Claypool to discredit the trial testimony of Michael Parrow and Darrell [sic] Dubry. The Defendant claims he was prejudiced because the credibility of the testimony of Parrow and Dubry was central to the government case and the testimony of Robin Claypool would have raised reasonable doubt in the case against the Defendant.
(Filing 574 at 9. See also filing 530 at 21-22.)
As I noted above, Michael Parrow and Darell Dubry were among the several "cooperating" witnesses who testified at Mull's trial. (See supra Part I.) Both witnesses described a single drug transaction involving Mull, Dubry, Parrow, and Claypool. (See id.) At some point before trial, Mull had a discussion with his attorney about the need to interview Claypool. (See filing 560 at 23-25, 31.) Although he admits that he did not know what Claypool would say if he were interviewed, Mull hoped that Claypool would verify that the alleged transaction involving himself, Claypool, Dubry, and Parrow did not occur. (See id. at 50.) According to Mull, his attorney obtained Claypool's name and address from a police report but was unable to locate him. (See id. at 31, 50-51.)
Dubry also described other drug transactions that occurred at the defendant's house, and he testified that he once purchased crack directly from the defendant. (See, e.g., filing 375, Tr. Vol VI at 1090-1092, 1094-1099, 1102-1104.) However, since none of these transactions involved Robin Claypool, I have no reason to conclude that this testimony would have been directly discredited had Claypool appeared at trial.
On August 30, 2004, when the hearing on the instant motion commenced, Claypool's whereabouts remained unknown. Indeed, the defendant's new counsel indicated that he made an attempt to locate Claypool prior to the hearing and had "no leads on him." (Filing 560 at 8:22-10:1, 74:24-76:12.) The defendant attempted to find Claypool himself by searching through telephone directories and asking his family members and counsel for assistance. (See id. at 70:23-72:13.) None of these efforts proved to be successful. However, during the hearing, the defendant testified that he had a relatively new lead that might yield information about Claypool's whereabouts. (See id. at 49:7-50:7.) Specifically, the defendant stated that during his incarceration he encountered a man named Shane who claimed to know Claypool's niece and nephew. (See id. at 49:7-50:7, 72:14-18.) Shane provided an approximate address for Claypool's niece and informed Mull that the nephew had been incarcerated in the penitentiary. (See id. at 73:14-74:5.) Counsel requested leave to pursue this lead, (see id. at 61:3-23), and I granted this request, (see id. at 77:14-18).
Needless to say, the attorney appointed to represent the defendant in connection with the instant motion is not the same attorney who represented the defendant at trial and on appeal.
Claypool was found and the hearing on the defendant's § 2255 motion resumed on October 8, 2004. (See filing 571.) At this hearing, Claypool testified that he has lived in Lincoln, Nebraska, "off and on for 40 years," and that he and the defendant grew up together. (Id. at 84:5-18.) He testified that he was aware that the defendant was on trial during the summer of 2000, but that he was not contacted by the defendant's attorney. (See id. at 84-85.) Claypool testified that he was not making any effort to conceal his whereabouts; however, Claypool also stated that he knew that the defendant was trying to get in touch with him but that he was not interested in getting involved. (See id. at 88-90.) Furthermore, Claypool stated that in approximately May 2000, he lost his job, moved in with his "lady," and began receiving some form of treatment. (See id. at 85-87, 102-103.) When asked whether he "actually" lived with his girlfriend, Claypool replied, "kind of and kind of not." (Id. at 87.) He explained that he was receiving treatment at another location, but that he received mail at his girlfriend's address. (See id. at 86-88.)
The parties stipulated that the defendant's trial counsel had in his possession Claypool's address prior to this move. (See, e.g., filing 571 at 108:15-109:12.)
Claypool testified that he did not know Darell Dubry or Michael Parrow. (See filing 571 at 91:18-21, 93:17-20.) However, he acknowledged that Dubry described accurately the location of his residence at the relevant time. (See id. at 91:22-92:5.) Claypool admitted that he was involved in the distribution of crack, (see id. at 104:20-105:14), but he stated that he was not involved in the drug deals described by Dubry and Parrow, (see id. at 92:6-94:4), and that he never had dealings that involved Mull and any third parties, (see id. at 107:10-20).
An attorney's failure to interview a witness may provide a basis for finding him ineffective. See Kramer v. Kemna, 21 F.3d 305, 309 (8th Cir. 1994) (citing Kenley v. Armontrout, 937 F.2d 1298 (8th Cir. 1991)). However, counsel's failure to interview Claypool does not, standing alone, conclusively establish ineffectiveness. See id. To prevail, the defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996), which I have discussed previously. (See supra Part II.). Under this test, the defendant must first show that trial counsel's failure to locate Claypool amounted to a failure to exercise the customary skills and diligence that a reasonably competent attorney would have exhibited under similar circumstances. See Apfel, 97 F.3d at 1076. To do so, he must overcome a presumption that his attorney's conduct fell within the "range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984).
On this point, the defendant argues only that "[a] reasonable inference is established from the evidence that Claypool's whereabouts at the time of trial could have been ascertained with reasonable diligence." (Filing 574 at 10.) I disagree. Preliminarily, I note that there is no evidence concerning the efforts that counsel made or failed to make. That aside, I find that the evidence does not establish that a reasonable investigation would have resulted in the discovery of Claypool's whereabouts. On the contrary, the record indicates that Claypool changed residences during the relevant period and that he did not stay regularly at his new address. The defendant's testimony does not establish that he discussed Robin Claypool with trial counsel prior to Claypool's move, and there is no indication that the address that counsel obtained would have led him to Claypool after his move. Furthermore, I find that Claypool was aware that the defense was seeking information from him, but chose not to come forward. Finally, I note in passing that it seems doubtful that Claypool would have been located at all — despite the efforts undertaken by present counsel and Mull himself — were it not for the defendant's fortuitous encounter with "Shane" during his incarceration. In light of these facts, I am not persuaded that the defendant's trial counsel failed to exercise the customary skills and diligence that a reasonably competent attorney would have exhibited under similar circumstances.
The defendant argues that "[t]he government has offered no evidence from counsel as to whether there was a valid reason for counsel's not interviewing Claypool, or that counsel tried to locate Claypool but, despite reasonable efforts, he was unable to locate him." (Filing 574 at 11.) However, I remind the defendant that it is not the government's burden to establish that trial counsel provided effective assistance. Rather, it is the defendant's burden to demonstrate that counsel provided ineffective assistance. See, e.g., United States v. White, 341 F.3d 673, 678 (8th Cir. 2003) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)); Sanders v. United States, 341 F.3d 720, 721-22 (8th Cir. 2003).
Even if the evidence supported a finding that counsel failed to exercise due diligence, it is clear that the defendant cannot satisfy the second part of the Strickland test. To do so, the defendant must "make a substantial showing that, but for counsel's failure to interview or subpoena the witness in question, there is a reasonable probability that the result of his trial would have been different." Kramer v. Kemna, 21 F.3d 305, 309 (8th Cir. 1994). I shall assume, for the purposes of this motion, that Claypool's testimony at trial would have been substantially the same as it was at the October 8, 2004, hearing, and that the jury would have credited his testimony and discredited that of both Dubry and Parrow. Nevertheless, the record belies the defendant's argument that "the credibility of the testimony of Parrow and Dubry was central to the government['s] case." (Filing 574 at 9. See also supra Part I.) Since the defendant has not made a substantial showing that there is a reasonable probability that the result of his trial would have been different had trial counsel located and interviewed Robin Claypool, I must reject the defendant's claim.
I note in passing that the defendant moves in the alternative for a new trial based upon the newly discovered evidence provided by Claypool. (See filing 574 at 11; filing 530 at 19-20.) Federal Rule of Criminal Procedure 33(b)(1) provides, "Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty." The jury returned its verdict against the defendant on June 30, 2000. (See filing 337.) Although the defendant's original pro se motion (which includes a request for a new trial) was filed within three years of the verdict, no new evidence had been discovered at that time. (See filing 530 at 19-20.) Robin Claypool's statement, which was obtained on October 8, 2004, was not discovered within the time limits imposed by Rule 33(b)(1). Thus, I find that the defendant's motion for a new trial must be denied.
Although the defendant has not argued specifically that the failure to file timely a motion for a new trial amounts to ineffective assistance of counsel, I note that such an argument would certainly fail because the defendant cannot establish that he suffered prejudice. See United States v. Hilliard, 392 F.3d 981, 986 (8th Cir. 2004).
Federal Rule of Criminal Procedure 33 accords the district court the power to "vacate any judgment and grant a new trial if the interest of justice so requires." The court may grant a new trial motion where it finds that the verdict is "contrary to the weight of the evidence," and the decision to grant or deny such a motion rests "within the sound discretion of the trial court[.]" The court should grant the motion where the evidence presented weighs heavily enough against the verdict that the court believes a "miscarriage of justice may have occurred." Unlike a motion for acquittal, which requires the district court to consider all evidence in the light most favorable to the guilty verdict, a court considering a new trial motion is free to evaluate the evidence and credibility of the witnesses.Id. at 986-87 (citations omitted). The evidence presented in this case, including the new testimony provided by Claypool, does not weigh heavily enough against the verdict that I believe a miscarriage of justice might have occurred. In other words, even if the motion for a new trial had been filed timely, it would have been denied because Claypool's testimony is not "likely to produce an acquittal if a new trial [were] granted." United States v. Duke, 255 F.3d 656, 659 (8th Cir. 2001).
D. Whether Counsel's Advice that the Defendant Not Testify at Trial Amounted to Ineffective Assistance
The defendant argues,
Defendant's trial counsel was ineffective in failing to provide the Defendant with a reasoned assessment of the benefits and detriments of testifying in his own defense at trial; unreasonably recommended that the defendant not testify in his own defense; and unreasonably failed to advise the Defendant that it was his right to testify if he so chose. The Defendant claims prejudice in that he would have testified in his own defense at trial.
(Filing 574 at 11.)
At the hearing on the instant motion, the defendant testified that his trial counsel did not discuss with him the costs and benefits of testifying at trial, did not advise him of his right to testify, did not explain that the ultimate decision to testify was the defendant's to make, and did not describe the possible consequences of testifying. (See filing 560 at 28-29.) Specifically, the defendant testified that his counsel told him, "I'm not putting you on the stand," without explaining that the defendant could override this decision. (See id. at 29.) However, in his affidavit in support of his original pro se § 2255 motion, the defendant states, "Prior to my trial on a few occasions I requested to [sic] my counsel . . . that I wanted to testify at my trial. [Counsel] never told me that the right to testify was solely on me to invoke or waive. Counsel [said] to me that it best [sic] not for me to testify because the government will use my prior conviction to impeach me on the witness stand, and that he did [not] want the jury to hear about my drug use." (Filing 530, Mull Aff. ¶ 3 (emphasis added).) Thus, Mull's affidavit is not consistent with his testimony that counsel simply refused to put him on the stand. The affidavit also contradicts Mull's argument that counsel did not discuss with him the potential costs of testifying.
The record before me lacks testimony from the defendant's trial counsel, and the evidence presented by the defendant is inconsistent. With these shortcomings in mind, I find that counsel did discuss with the defendant the possible disadvantages of testifying, and although he advised the defendant not to testify, he did not categorically refuse to put the defendant on the witness stand. There is no evidence that counsel informed the defendant that the decision to testify was his own to make; however, I find that counsel did not "seize" this decision from the defendant, nor did counsel mislead the defendant about his ownership of this decision. Rather, I find that after the defendant informed counsel that he wanted to testify, counsel advised the defendant that it would be best if he did not testify and explained the basis for this advice. (See filing 530, Mull Aff. ¶ 3.) I am not persuaded that counsel's performance fell beyond the "range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984). See also Frey v. Schuetzle, 151 F.3d 893, 899 (8th Cir. 1998) (holding that counsel's reasons for advising the defendant not to testify were sound); Washington v. Kemna, 16 Fed.Appx. 528, 529-30 (8th Cir. 2001). Therefore, I conclude that the defendant has failed to show that his attorney's performance was deficient.
The defendant has also failed to show that there is a reasonable probability that, but for counsel's alleged deficiencies, the result of the proceeding would have been different. See Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994) (en banc); Frey v. Schuetzle, 151 F.3d 893, 899 (8th Cir. 1998). The defendant states that, had he been allowed to testify at trial, "his trial testimony would have been a categorical refutation of the claims by various witnesses against him . . . who testified under agreements with the government." (Filing 574 at 13.) He adds that "[h]e would simply have maintained his factual innocence." (Id.; see also filing 560 at 26-27, 32-36 (summarizing specific testimony that the defendant claims he would have presented at trial); filing 530 at 24-25 (same); filing 530, Mull Aff. ¶¶ 4-8 (same).) However, he admits that if he were called to the stand, he would have testified to the statements that appear in paragraph five of the affidavit accompanying his pro se § 2255 motion. (See filing 560 at 59-60.) This affidavit includes the following statement.
On many occasions I took McAlister to place [sic] where people sold . . . and smoke[d] crack cocaine. McAlister had sold crack cocaine at these places, and gave me some crack cocaine for my personal use in [sic] helping him find places to sell. On few occasions McAlister gave crack cocaine to female for [sic] I can have sex with.
(Filing 530, Mull Aff. ¶ 5. See also filing 530 at 24.) The defendant reaffirmed the truth of this statement during his testimony at the hearing. (See filing 560 at 59-60.) As the government notes, this testimony implicates the defendant in a conspiracy to distribute crack.
This is not a case in which the movant has failed to describe the testimony that he would have provided had he been called to testify at trial. See, e.g., Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994) (en banc); Hines v. United States, 282 F.3d 1002, 1004-05 (8th Cir. 2002). Nevertheless, I find that the defendant has not shown that there is a reasonable probability that his testimony would have made any difference to the jury. On the contrary, it seems to me that the probability that the defendant's testimony would have persuaded the jury to discredit all of the government's evidence and find the defendant not guilty is virtually zero. Furthermore, if the defendant had testified to the statements contained in his affidavit, it is clear that his defense would have been seriously damaged.
In sum, I reject the defendant's claim that his trial counsel was ineffective because he "fail[ed] to provide the [d]efendant with a reasoned assessment of the benefits and detriments of testifying in his own defense at trial; unreasonably recommended that the defendant not testify in his own defense; and unreasonably failed to advise the Defendant that it was his right to testify if he so chose." (Filing 574 at 11.)
E. Whether Counsel Presented an Ineffective Closing Argument
The defense's closing argument was based upon the theory that the defendant was merely a drug user or a drug addict rather than a "real" drug dealer. (See filing 375, Tr. at 1450:2-3, 1455:18-1456:11.) In support of this theory, counsel argued that Baggett, McAlister, and Michael were the "real drug distributors," (id. at 1455:18-1456:2), and that Mull was "an idiot who was used" by these drug dealers, (id. at 1456:3-4). Counsel argued repeatedly that the defendant merely bought crack from these dealers or let them use his house in exchange for crack — just as other users traded sex for drugs or shoplifted clothes in exchange for drugs. (See id. at 1452:12-20, 1456:4-6, 1457:24-1458:1.) He asserted that it was "nuts" that the government gave plea agreements to the "real" drug dealers, who were more like "the Godfather," in order to pursue Mull, who was more like "a Boy Scout who jaywalked." (Id. at 1456:6-11.) He argued that Mull's house was like a party house were people smoked, and Mull was a smoker, not a dealer. (See id. at 1458:1-4.)
Counsel also observed that a law enforcement witness testified that he would not "prosecute" Bridgette Mann based upon her own word that she was using drugs. (See id. at 1451:7-11, 1453:12-24.) Counsel then suggested that Mann was a liar and that her testimony concerning Mull should be given no more credit than the police gave to her admissions about her own drug use. (See id. at 1451:7-11, 1452:3-11.) He emphasized this point by noting that the drugs Mann claimed to have purchased at Mull's residence were worth a fraction of the cost that she claimed she paid. (See id. at 1451:19-1452:2.) He also argued that Mann provided the only evidence linking Mull to the controlled buys that took place at his house. (See id. at 1452:21-1453:24.)
Next, counsel argued that McAlister's testimony, along with other witnesses testifying pursuant to cooperation agreements, was not credible, (see filing 375, Tr. at 1454:1-22), and he characterized Dubry and Parrow as "goofballs" who made up their testimony while in jail but were not "smart enough to get their stories straight." (Id. at 1454:24-1455:17.) Counsel asserted that Christine Freeman and Lamar Banks contradicted each other, (see id. at 1456:20-1457:1), and suggested that Freeman "has a reason to lie," (see id. at 1457:2-11). He also argued that Markham Jones and Lamar Banks were both from Chicago, and that they, not Mull, provided the connections that allowed Michael, McAlister, and Baggett to come to Lincoln to distribute crack. (See id. at 1457:12-15.)
Finally, counsel reminded the jury of Levine's criticism of the police investigation, (see filing 375, Tr. at 1458:6-14), and suggested that the jury stand up and defend the Constitution rather than convict people based upon the testimony of informants, (id. at 1459:7-25).
The defendant argues,
Defendant's trial counsel presented an ineffective closing argument, which was disjointed, lacked a coherent theme, and failed to present to the jury a plausible discussion of the facts and the law that would support a verdict of not guilty. The Defendant claims that the argument was prejudicial per se for which no prejudice is required, or alternatively prejudiced the Defendant's opportunity for a favorable jury verdict.
(Filing 574 at 14.)
I turn first to the defendant's suggestion that he need not demonstrate that he was prejudiced by the closing argument. (See filing 574 at 14.) In United States v. Cronic, 466 U.S. 648, 659-62 (1984), the Court identified three "situations implicating the right to counsel" wherein prejudice may be presumed. Bell v. Cone, 535 U.S. 685, 695 (2002). These are: 1) there has been a complete denial of counsel; 2) "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing"; and 3) "counsel is called upon to render assistance under circumstances where competent counsel very likely could not." Cone, 535 U.S. at 695-96 (quoting Cronic, 466 U.S. at 659). The defendant suggests that the second situation is present here; that is, he argues that "counsel failed to subject the government's case to 'meaningful adversarial testing.'" (Filing 574 at 17 (quotingCronic, 466 U.S. at 659).) However, prejudice will only be presumed when counsel's failure to test the prosecutor's case has been "complete." Cone, 535 U.S. at 697. In this case, I find that counsel did not "entirely fail to subject the prosecution's case to meaningful adversarial testing." Id. (quoting Cronic, 466 U.S. at 659). Thus, the principles set forth in Strickland govern my analysis of the defendant's arguments, and the defendant is not excused from establishing prejudice. See Cone, 535 U.S. at 697-98; United States v. White, 341 F.3d 673, 679 (8th Cir. 2003).
The defendant claims that counsel's closing argument amounted to ineffective assistance because it was disjointed, incoherent, and lacking a "plausible discussion of the facts and the law that would support a verdict of not guilty." (Filing 574 at 14.) I disagree. Clearly, counsel's closing argument raised a number of points in Mull's defense, and it was anchored by a plausible, if ultimately unsuccessful, theory. To the extent that the argument was disjointed or lacking in artistic flow, it was not so deficient that the defendant suffered prejudice. See Parker v. Bowersox, 188 F.3d 923, 928 (8th Cir. 1999).
The defendant takes issue with the following passages from the argument:
He's an idiot. Sorry, John, but you are. He's an idiot who was used, you know. He would go and get — let these guys use his house to sell, or he would buy from these guys, and now these guys are rolling on him. It's like having the Godfather [and] giving him a plea agreement to testify about a kid, a Boy Scout who jaywalked. It's nuts. It doesn't make any sense. And these guys are going to get out of jail on this thing, or they're going to get substantially reduced sentences.
. . . .
All right. Well, be that is it may, at one point in time when I — I'd been doing this kind of work, my wife and I were driving down the street. And my son, who was two at the time, asked, ["]Mom, why does Dad help the bad guys?["] I expected that question at some point in time, but I didn't expect it when he was two. And I didn't know what to say. But you know what my wife said? My wife said, ["]because if he doesn't, who will?["]
(Filing 375, Tr. at 1456:3-11, 1458:24-1459:6.) The first passage is not flattering to the defendant, but it is in-step with the theory that the defendant was merely an addict who traded the use of his residence for crack. As for the second passage, the defendant argues that it "prays on the fears of parents with young children that bad 'drug dealers' have to be defended by someone suggesting that it is the jury's job to convict the bad guys, [counsel] just defends them." (Filing 574 at 15.) However, when the passage is read in context, it is clear that counsel's point was not to distance himself from his client, but to suggest that the jurors too should defend the rights of the accused, even if he is a "bad guy." After relating his wife's answer to his child's question, counsel argued,
I note parenthetically that contrary to the defendant's argument, counsel did not suggest that his client was a "drug dealer." On the contrary, he went to great lengths to cast the defendant as a mere addict who was used by the "real" drug dealers.
That's why you're here. Because if you don't stop this, who will? This isn't just about John Mull. This is about the Constitution. This is about reasonable doubt. This is about making the government prove beyond a reasonable doubt that someone's guilty. Not just by innuendo, not by inference, but proving it. Otherwise we might as well just throw away the Constitution. We might as well throw away the concept of reasonable doubt. And we might as well convict people on just informants, similar to how the KGB worked.
(Filing 375, Tr. at 1459:7-15.) He then suggested that if the jury fails to stand up for the rights of a drug user, a slippery slope could threaten the rights of anyone. (See id. at 1459:16-25.) Counsel did not suggest that it was "the jury's job to convict the bad guys." (Filing 574 at 15 (emphasis omitted).) The argument did not prejudice the defense.
Finally, the defendant argues that trial counsel should not have conceded that the defendant "used drugs, was involved with drugs, . . . allowed drugs to be sold out of his house, and . . . ran with drug dealers." (Filing 574 at 16.) Instead, he claims that "the only reasonable argument . . . would be that none of the claims were true." (Id.) In United States v. Robinson, 301 F.3d 923 (8th Cir. 2002), the court was confronted with circumstances very similar to those present here:
Mull argues, somewhat vaguely, that he denies "partial participation in drug related activities," at least with respect to some unspecified "matters." (Filing 574 at 16.) However, the admissions contained in Mull's affidavit clearly implicate him in "drug related activities." (See filing 530, Mull Aff. ¶¶ 4-6.) During the hearing on the instant motion, the defendant testified, "I don't deny that I possessed and I've used, but I wasn't in no conspiracy." (Filing 560 at 31:23-25.) He has also admitted that he associated with some of the persons who distributed drugs in Lincoln, Nebraska. (See id. at 34:23-35:6 (Lemont Baggett); 35:17-36:7 (Tracy Black and Eric Michael). See also filing 530 at 24 (Louis McAlister).)
Next, Robinson makes claims of ineffectiveness based on [counsel]'s closing statement. [Counsel] had called no witnesses and had chosen instead to rely on impeaching the prosecution witnesses and arguing that Robinson's "mere presence" with members of the conspiracy was insufficient to prove his guilt. Consequently, during the closing statement, [counsel] placed Robinson in the company of some of the co-conspirators on certain occasions, just as the evidence indicated and the prosecution asserted. [Counsel] argued, however, that Robinson was not involved in the conspiracy despite his presence among the coconspirators. [Counsel]'s decision to argue that Robinson may have innocently been in the presence of the co-conspirators was made in the context of significant prosecution testimony of Robinson's presence and circumstances implying his involvement, including 404(b) evidence that Robinson had been involved with crack-cocaine possession. [Counsel] made the judgment that as a matter of trial strategy it was better to maintain that Robinson was innocent of the conspiracy than to deny Robinson's association with the co-conspirators. We cannot say that [Counsel]'s strategy as reflected in his closing argument resulted in prejudice to Robinson.Id. at 926 (footnotes omitted). Similarly, I find that the strategy reflected in counsel's closing argument in this case did not result in any prejudice to the defendant. Furthermore, I am not persuaded that the result of the trial would have been different had counsel argued that the defendant had no connection with drugs whatsoever. On the contrary, given the overwhelming evidence that the defendant used controlled substances and associated with many of the witnesses who testified against him, it seems to me that the strategy employed by the defense at trial had a better probability of success than the strategy that the defendant now advocates.
In sum, I find that the defendant has failed to show that he was prejudiced by his counsel's closing argument.
F. Whether Counsel Was Ineffective Because He Failed to Argue that the Defendant's Sentence Violated the Principles of Apprendi v. New Jersey and United States v. R.L.C., and Whether the Defendant's Sentence Exceeds the Maximum Allowed by Law The defendant argues that his 240-month sentence is unlawful because it is greater than the sentence authorized under the Sentencing Guidelines. As I noted previously, the quantity of drugs involved in the conspiracy was not specified in the indictment nor determined by the jury beyond a reasonable doubt. (See supra Part III.A.) Characterizing these facts as "theApprendi error," the defendant argues,
The fundamental flaw in Mull's sentence is that the trial court and the circuit court attempted to cure the Apprendi error by capping the sentence at the statutory maximum under § 841(b)(1)(C) — 240 months. Properly framed, the issue should be whether the Apprendi error could only be cured by imposition of the maximum sentence applicable under the Sentencing Guidelines for the offense committed in its simplest form. We submit that the Supreme Court decision in United States v. R.L.C. . . . compels that conclusion.
(Filing 574 at 5.)
In United States v. R.L.C., 503 U.S. 291, 294 (1992), the Court considered a provision of the Juvenile Delinquency Act that limited the length of official detention in certain circumstances to "the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult." (Quoting 18 U.S.C. § 5037(c)(1)(B)). The Court held "that this limitation refers to the maximum sentence that could be imposed if the juvenile were being sentenced after application of the United States Sentencing Guidelines." Id. The defendant argues that this holding "compels" the conclusion that, under Apprendi, his maximum sentence is not defined by 21 U.S.C. § 841(b)(1)(C), but is instead defined by the Sentencing Guidelines. In other words, he argues that under R.L.C., "the sentencing range applicable under the guidelines . . . controls over the statutory provisions [(i.e., § 841(b)(1)(C))]." (Filing 574 at 4 (emphasis omitted).)
See Dukes v. United States, 255 F.3d 912, 913 (8th Cir. 2001) (citing United States v. Bradford, 246 F.3d 1107, 1113 (8th Cir. 2001) and United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000)); Anderson v. United States, 393 F.3d 749, 752 (8th Cir. 2005) ("Applied specifically to narcotics offenses, Apprendi mandates that when the indictment does not reference drug quantity, the defendant may not be sentenced outside the statutory range authorized by 21 U.S.C. § 841(b)(1)(C). . . ."); United States v. Mull, 40 Fed.Appx. 300, 303-304 (8th Cir. 2002) (per curium); (see also supra Part III.A).
I disagree. In fact, the Eighth Circuit has considered and rejected the very point upon which the defendant relies, stating, "R.L.C. does not support the proposition that a maximum sentence in federal criminal cases is that prescribed by the federal sentencing guidelines, and no court has so held." United States v. Shimoda, 334 F.3d 846, 849 (8th Cir. 2003). As I noted above, Mull was sentenced within the range authorized by 21 U.S.C. § 841(b)(1)(C). (See supra Part III.A (citing United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000);United States v. Mull, 40 Fed.Appx. 300, 303-304 (8th Cir. 2002) (per curium)).) I am not persuaded that this sentence was unlawful.
Since the defendant's sentence was not unlawful under the rule announced in R.L.C., the defendant cannot demonstrate that he was prejudiced by his counsel's failure to raise this argument.See Strickland v. Washington, 466 U.S. 668, 692 (1984) (holding that "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance"). I therefore reject the defendant's claim that his counsel provided ineffective assistance.
I note in passing that the defendant argues that he "has preserved Blakely issues in this matter." (See filing 574 at 7; filing 560, Tr. at 60-61.) However, Mull's conviction was final long before Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), were decided, and it appears that every court that has considered the matter has determined that the rationale of Blakely and Booker does not apply retroactively to cases on collateral review. See, e.g., Humphress v. United States, 398 F.3d 855 (6th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005) (noting that the date of the Booker decision marks the "appropriate dividing line" for determining the applicability of the Blakely/Booker rationale in federal cases); United States v. Price, 400 F.3d 844 (10th Cir. 2005); Varela v. United States, 400 F.3d 864 (11th Cir. 2005); United States v. Shevi, No. CR 98-257 ADMAJB, Civ. 04-4027 ADM, 2005 WL 661558 (D. Minn. March 22, 2005). For the reasons set forth in these thorough opinions, I find that neither Blakely or Booker is available to the defendant.
In United States v. Booker, 125 S. Ct. 738, 769 (2005), the Court determined that there was "no distinction of Constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue" in Blakely. In essence, in Booker the Court applied the rationale ofBlakely to the Federal Sentencing Guidelines.
IT IS ORDERED that the defendant's "Motion to Vacate Conviction and Sentence," filing 530, "Amended Motion to Vacate, Set Aside, or Correct Sentence," filing 552, "Traverse to the Government's Motion to Dismiss Petitioner's Motion," filing 535, and second "Traverse to the Government's motion to Dismiss Petitioner's Motion," filing 553, are denied.