Opinion
CASE NO. 1:01-cr-00034-MP-AK.
January 31, 2008
ORDER
This matter is before the Court on Doc. 107, Report and Recommendation of the Magistrate Judge, recommending that the Defendant's motion under § 2255 be denied. The Defendant filed objections, doc. 108, which the Court has reviewed. Defendant claims that his trial counsel was ineffective for failing (1) to move to limit the admission of certain testimony and (2) to object to the increased Guidelines range for relevant conduct drug amounts. Doc. 98. More specifically, Defendant maintains that the admission of the cooperating witness' testimony regarding a machine gun and a silencer and Defendant's need for a silencer ("somebody . . . was . . . bothering him, giving him a hard time," Doc. 83 at 17) without objection from counsel was unfairly prejudicial and detrimental to Defendant in violation of Fed.R.Evid. 403. Doc. 98. Defendant also argues that counsel should have preserved an Apprendi argument that in sentencing him, the Court had improperly found drug quantities by a preponderance of the evidence, rather than beyond a reasonable doubt.
The Court agrees with the Magistrate Judge that the testimony regarding the machine gun was necessary to complete the story of how Defendant was arrested. Additionally, once the Defendant took the stand and offered a reason for wanting a handgun not related to drug dealing, he opened the door to the testimony regarding the silencer and machine gun to impeach his benign explanation for his possession of the weapon. Secondly, with regard to the Apprendi claim based on drug amounts, the amount of drugs involved was made part of the verdict form. (Doc. 53, p. 2). Thus, the amount of drugs was expressly found by the jury in this case, obviating any claim based on Apprendi or its progeny.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. This action is DISMISSED, and the clerk is directed to close the file.