Opinion
Criminal Action No. 96-125.
March 12, 2001
ORDER AND REASONS
Defendant's motion for post conviction relief pursuant to 28 U.S.C. § 2255 was considered on memoranda. Upon review of the entire record, it is clear that an evidentiary hearing is not necessary. and that defendant is not entitled to relief, except to the extent that he seeks to vacate his conviction and sentence for conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846.
BACKGROUND
Defendant was charged in a superseding indictment with the following offenses: conspiracy to distribute heroin, cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 846; three counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1), one count of using a firearm in relation to the commission of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1), one count of fraudulent use of a telecommunications instrument, in violation of 18 U.S.C. § 1029(a)(5), and one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. Prior to trial the government voluntarily dismissed the firearm count. Thereafter, defendant and several of his co-defendants proceeded to trial.
During the second week of the trial, the district judge granted the motions of defendant Lampton and others for a mistrial. Thereafter a second trial was conducted. The jury found Lampton guilty on all counts. In response to a special interrogatory directing the jury to indicate which of the four drugs each defendant conspired to distribute, the jury indicated that Lampton conspired to distribute heroin, cocaine, and marijuana.
The district judge enhanced Lampton's sentences on his drug related convictions based on his prior state convictions for felony drug offenses and sentenced Lampton to a 360 month term of imprisonment on each count of distribution of heroin ( 21 U.S.C. § 841(a)(1)), a term of life imprisonment for conspiracy to distribute heroin, cocaine, and marijuana ( 21 U.S.C. § 846), and a term of life imprisonment for engaging in a continuing criminal enterprise ( 21 U.S.C. § 848). The district judge also sentenced defendant to a 120 month term of imprisonment for fraudulent use of a telecommunications instrument ( 18 U.S.C. § 1029(a)(5)). All of the sentences run concurrently with one another.
Defendant's convictions and sentences were affirmed on appeal. United States v. Lampton, 158 F.3d 251 (5th Cir. 1998). The Supreme Court denied defendant's petition for writ of certiorari. Lampton v. United States, 525 U.S. 1183, 119 S.Ct. 1124, 143 L.Ed.2d 119 (1999).
Defendant filed an application for post conviction relief under 28 U.S.C. § 2255, seeking to vacate his convictions and sentences on the following grounds:
newly discovered evidence establishes defendant's actual innocence;
prosecutorial misconduct;
ineffective assistance of counsel;
imposing concurrent sentences of life imprisonment for violating 21 U.S.C. § 846 and 21 U.S.C. § 848 violates the constitutional prohibition against double jeopardy;
defendant's second trial violated the constitutional prohibition against double jeopardy;
defendant's sentences were improperly enhanced based upon unconstitutionally obtained prior felony drug convictions;
defendant's sentences were based on an erroneous calculation of drug quantities;
the district judge unconstitutionally enhanced defendant's sentences based on the type and quantity of drugs as well as his prior convictions, facts which were not alleged in the indictment and were not determined by the jury under the reasonable doubt standard of proof; and
the conviction for violating 21 U.S.C. § 848 was unconstitutional because the jury's determination of the predicate acts was not unanimous.
The government moved to dismiss the § 2255 motion as time barred; however, it later withdrew the motion, conceding that Lampton timely filed his motion for habeas relief.
More than ten months after defendant filed his § 2255 motion, he "supplemented" his request for habeas relief, urging that his sentences had been improperly enhanced based on his prior state convictions because the government failed to provide proper notice of its intent to enhance his sentences. I construe the "Supplement to § 2255 Motion with Reference to § 851 Enhancement" as a motion to amend defendant's motion for habeas corpus relief and analyze it as such.
The Federal Rules of Civil Procedure apply to motions to amend habeas corpus motions. United States v. Duffus, 174 F.3d 333, 336 (3rd Cir.), cert. denied 528 U.S. 866, 120 S.Ct. 163, 145 L.Ed.2d 138 (1999). Fed.R.Civ.P. 15(a) provides that leave to amend "shall be freely given: when justice so requires." However, a district judge has discretion to deny a motion to amend when an amendment would be futile. See Stripling v. Jordan Production Company, LLC, 234 F.3d 863, 872-73 (5th Cir. 2000). Because the claim stated by defendant in his "supplement" is time-barred, the amendment is futile, and I deny defendant leave to amend his § 2255 motion.
Title 28 U.S.C. § 2255 establishes a one year period of limitation for the filing of a motion for post conviction relief. Here the one year limitation began to run on March 1, 1999, the day the Supreme Court denied Lampton's petition for a writ of certiorari and his "judgment of conviction became final." United States v. Thomas, 203 F.3d 350, 356 (5th Cir. 2000), 28 U.S.C. § 2255. The earliest that the defendant's "supplement" can be considered filed is January 31, 2001, the day he signed the pleading. Because the earliest date that the supplemental pleading can be considered filed is more than one year from the date that Lampton's judgment of conviction became final, the claim asserted therein is time-barred, unless the amendment relates back to the date of the filing of the motion for habeas corpus relief pursuant to Fed.R.Civ.P. 15(c).
A claim asserted in an amended pleading relates back to the date of the filing of the original pleading when the claim "arose out of the conduct, transaction, or occurrence set forth or attempted to set forth in the original pleading." Fed.R.Civ.P. 15(c). In his original § 2255 motion Lampton urged, among other unrelated claims, that the district judge improperly enhanced his sentences based on priors convictions which were unconstitutionally obtained. Additionally, he urged that because he had not been incarcerated as part of his sentence for one of the prior convictions, that conviction could not be used to enhance his sentences. The claim defendant seeks to add does not challenge the prior state convictions nor urge that those convictions are not the type properly used to enhance a sentence under § 851. Rather, the new claim raises, for the first time, the issue of whether the government complied with the notice requirement of 21 U.S.C. § 851(a). That claim does not arise from the "conduct, transaction, or occurrence" set forth in defendant's original pleading. Defendant's challenges to his enhanced sentences based on his prior state convictions provided the government with no notice that defendant also challenged his enhanced sentences based on the alleged failure to comply with the notice requirements of § 851. Because this particular claim does not arise out of the same "conduct, transaction, or occurrence" set forth in defendant's original pleading, the amendment cannot relate back to the date defendant filed the original motion for habeas corpus relief, and thus would be time barred. Therefore, I deny defendant leave to amend his motion for habeas corpus relief to add the claim urging that the government failed to comply with the notice requirements of 21 U.S.C. § 851(a).
Title 21 U.S.C. § 851(a) provides:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States Attorney files an information with the court . . . stating in writing the previous conviction to be relied upon.
Assuming arguendo that the claim was not time-barred, defendant would still not be entitled to the relief sought. Defendant challenges only the notice provided by the government relative to Count 2 of the "Bill of Information to Establish Prior Convictions"; he does not challenge the notice provided for the prior conviction identified in Count 1. Only the sentence for conspiracy, which will be vacated for the reasons set forth hereinafter, was enhanced based on defendant's two prior felony drug convictions. The sentences on the remaining drug related convictions were enhanced based on defendant having one prior felony drug conviction. Because defendant does not challenge the government's notice of its intent to enhance his sentences based upon the January 21, 1988 conviction for possession of cocaine, defendant is not entitled to relief.
On direct appeal, defendant did not urge his present claims that his second trial violated the constitutional prohibition against double jeopardy, that imposing concurrent life sentences for violating 21 U.S.C. § 846 and 21 U.S.C. § 848 violated the constitutional prohibition against double jeopardy, or that his conviction for violating 21 U.S.C. § 848 was unconstitutional because the jury's determination of the requisite predicate acts was not unanimous. Generally, a defendant who raises an issue of constitutional magnitude for the first time on collateral review must show both cause for his procedural default and actual prejudice resulting from the error. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816. (1982). However, because the government has not urged the procedural bar, the defendant need not show cause and prejudice. United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996).
NEWLY DISCOVERED EVIDENCE
Defendant contends that he has newly discovered evidence proving that he is actually innocent of the charge of distributing heroin on January 23, 1996. Some background information is necessary to analyze this contention.
Among other crimes, defendant was convicted of distributing heroin on or about January 23, 1996. Raymond Morgan, a confidential witness cooperating with the government, testified that on January 23, 1996, he purchased a quarter ounce of heroin from defendant. In addition to Mr. Morgan's testimony, the government offered a tape recording of a telephone call initiated by Morgan on the morning of January 23, in which Morgan and a man he identified as defendant arranged the purchase of the heroin. That tape includes a statement by the individual identified as Lampton that he is at the hospital and that "she" is about to have a baby. The government also introduced a tape recording of a conversation between Morgan and a man he identified as defendant that occurred during the actual purchase of the heroin. Based on the voice on the audio tape of the actual drug transaction, FBI Special Agent Kathy Adams identified Billy Lampton as the participant in the January 23 drug transaction. On the tape recorded during the actual heroin transaction, Morgan states that his parole officer wants him to get a job. The person identified as defendant states that Morgan can say he works for him. Morgan says "at the car wash," and the other participant responds that he also has a printing business. There was evidence presented at the trial that Lampton had an interest in both a car wash and a printing business. There is additional evidence of the January 23 transaction in the "302" surveillance form for that date signed by FBI Special Agent William Brechtel. The document notes that "a green Honda Accord with dark windows and License Plate DSM 848 driven by a lone black male, turned into the parking lot of Shoney's restaurant and met with CW." Additionally, the document describes activities that took place between 11:21 and 11:27 a.m. Both Tanita Akmin, defendant's former girlfriend, and Raymond Morgan testified that Lampton drove a green Honda Accord.
Although defendant alleges that the audio tapes introduced into evidence were unintelligible; no objection to the intelligibility of the two tapes relied on herein was raised at trial, and upon reviewing the tapes I conclude that both tapes are for the most part intelligible.
FBI Special Agent Kathy Adams of the FBI testified that Raymond Morgan was the "CW" referred to in the document.
At the trial Tania Akmin testified that in the morning on January 23, 1996, defendant drove her to Lakeland Hospital, and that around noon she delivered their child. She also testified that defendant remained with her until after the baby was born except for the time during which the epidural procedure was being performed. During the cross-examination of Akmin, defense counsel introduced the child's birth certificate showing 12:23 p.m. as the time of birth. During closing argument defense counsel urged that defendant could not have been involved in the January 23 heroin distribution because he was at Lakeland hospital, and that Raymond Morgan lied about defendant being present at the January 23 transaction.
Lampton urges that he has "newly discovered" evidence supporting his contention that he could not have been involved in the January 23 drug transaction because he was with Ms. Akmin at Lakeland Hospital. This evidence includes an affidavit by Tanita Akmin, stating that on January 23 defendant was with her the entire day except for "a very short period, maybe 3-5 minutes" when she received an epidural. Defendant also submits affidavits from Juanita Akmin, Sheba Akmin, and Deshon Crawford stating that defendant was with Tanita Akmin from early in the morning until the baby was delivered at 12:23 except for the time when the epidural was being administered. The affidavits also state that during the time the epidural was being administered defendant was with the affiants.
Juanita Akmin is Tanita Akmin's mother.
Sheba Akmin and Deshon Crawford are Tanita Akmin's sisters.
Defendant also offers the following in support of his claim of actual innocence: a document entitled "Consent for Husband's Presence in the Delivery Room/C-Section Suite" signed by defendant and Tanita Akmin and indicating a time of "0915," an affidavit by Dione Dumas stating that it is approximately 3 miles from Lakeland Medical Center to Shoney's and that the trip takes approximately ten minutes, a city map of the area around Lakeland Medical Center and the site of the drug transaction, an "Anesthesia Record" showing that anesthesia began at 12:00 and continued until 13:00 (1:00 p.m.), and an "Operating Room Record" signed by the circulating nurse indicating that the anesthesia began at 11:55 and ended at 13:00.
Defendant contends that this evidence demonstrates his actual innocence and establishes that Raymond Morgan committed perjury when he testified that he received heroin from defendant on January 23, 1996. Defendant also contends that the "newly discovered evidence" would have impeached Morgan's testimony concerning the other two heroin transactions that Morgan testified that defendant engaged in and for which he was convicted.
"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 would, if condoned, result in a complete miscarriage of justice." United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam)). A claim seeking habeas relief based on newly discovered evidence establishing innocence does not state an independent constitutional claim; therefore, such a claim cannot state a cognizable ground for relief in this § 2255 motion. See Guinan v. United States, 6 F.3d 468, 470-471 (7th Cir. 1993); see also Herrera v. Collins, 506 U.S. 390, 404-405, 113 S.Ct. 853, 862-63, 122 L.Ed.2d 203 (1993) (claim of actual innocence based on newly discovered evidence does not state a ground for § 2254 federal habeas relief absent an independent constitutional violation during the state criminal proceedings).
If defendant's motion is construed as a motion for new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, it is clearly without merit. To prevail on a motion for new trial under Fed.R.Crim.P. 33, defendant must prove that: "(1) the evidence is newly discovered and was unknown to the defendant at the time of the trial; (2) failure to detect the evidence was not due to a lack of diligence by the defendant; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence introduced at a new trial would probably produce an acquittal." United States v. Jaramillo, 42 F.3d 920, 924 (5th Cir. 1995). If a defendant fails to satisfy each clement of the test, the motion must be denied. Id. at 924-25.
None of the affidavits concerning defendant's whereabouts on January 23 contain information unknown to defendant at the time of trial. If, in fact, defendant was with Tanita Akmin's mother and sisters on January 23 while the epidural was being administered to Tanita Akmin, he knew that those individuals could provide testimony to support his claim that he was at Lakeland Hospital at the time of the January 23 heroin distribution. Therefore, those affidavits do not qualify as "newly discovered" evidence. As for Tanita Akmin's affidavit, it does not include any information about which she did not testify at trial; her affidavit is therefore duplicative of her trial testimony and does not qualify as "new evidence."
No extensive analysis of the evidentiary value of the city map, the information contained in Dione Dumas' affidavit or the hospital records is necessary. Like the foregoing, these do not qualify as "newly discovered." Moreover, I cannot conclude that if that evidence were introduced at a new trial it is probable that defendant would be acquitted. None of that evidence independently establishes defendant's whereabouts during the relevant time or corroborates Tanita Akmin's testimony that the defendant remained at the hospital until after the child's birth. There was considerable evidence at the trial that Lampton did in fact participate in the January 23 heroin sale: Morgan's testimony, the "302" surveillance form, the tapes of the conversations between Lampton and Morgan, and Agent Adams' identification of Lampton's voice on the tape made during the actual distribution. Accordingly, the motion for new trial is Denied.
PROSECUTORIAL MISCONDUCT
Based on the testimony and affidavit of Tanita Akmin and the affidavits of Akmin's mother and sisters, defendant contends that Raymond Morgan perjured himself by testifying that he purchased heroin from defendant on January 23, 1996. Lampton asserts that the prosecutor knowingly offered this allegedly perjured testimony.
Where the government knowingly elicits, or fails to correct, materially false statements from a witness, the constitutional guarantee of due process is denied, and a defendant's conviction must be reversed. United States v. Haese, 162 F.3d 359, 365 (5th Cir. 1998), cert. denied 526 U.S. 1138, 119 S.Ct. 1795, 143 L.Ed.2d 1022 (1999). To establish a due process violation, the defendant must show the following: (1) the statements are actually false; (2) the prosecutor knew that the statements were false; and (3) that the statements were material. Id.
The fact that Raymond Morgan's testimony is inconsistent with Tanita Akmin's testimony and the affidavits now offered by the defendant does not establish that Morgan's testimony is false. Also, Lampton has not offered any evidence indicating that the government knew that Morgan's testimony concerning the January 23 heroin sale was false. Accordingly, this claim lacks merit.
Defendant also urges that the prosecution acted improperly in "thwarting" his counsel's attempt to. call FBI Special Agent William Brechtel as a defense witness. When called as a prosecution witness, Agent Brechtel testified that he conducted surveillance on the defendant on numerous occasions, but on cross-examination he was unable to recall whether he participated in the surveillance conducted on January 23. Although Agent Brechtel testified that he was unable to recall whether he participated in surveillance on January 23, the FBI "302" surveillance form for that day is signed by Agent Brechtel. That report states in pertinent part, that at 11:20 a "Green Honda Accord with dark windows LA license DNF848 driven by a lone black male turns in the parking lot behind Shoney's Restaurant and meets with C.W." After Agent Brechtel testified, the government called Tanita Akmin as a witness. She testified that defendant was with her at Lakeland Hospital on the morning of January 23.
Thereafter, as part of the defense, counsel for Lampton sought to call Agent Brechtel, who at that time was out of town, as a witness to "cross-examine" him concerning the "302" surveillance report for January 23, 1996. and the apparent conflict between that report and Tanita Akmin's testimony that defendant was with her on January 23. The district judge concluded that the government was not required to produce Agent Brechtel. The next day, during the testimony of FBI Agent Kathy Adams, defense counsel introduced into evidence, by stipulation, the "302" surveillance form signed by Agent Brechtel concerning the January 23 surveillance and examined Agent Adams concerning the report.
The government did not improperly "thwart" defense counsel's attempt to call Agent Brechtel as a witness. Defendant had the opportunity to cross-examine Agent Brechtel concerning the surveillance conducted on January 23 as well as the fact that none of the Special Agents involved in the surveillance of the January 23 transaction saw the actual transaction, and defendant failed to do so. Moreover, by introducing the "302" form detailing the January 23 surveillance and questioning Agent Adams, defense counsel developed the inconsistency in the testimony between Raymond Morgan, the confidential witness, and Tanita Akmin concerning Lampton's whereabouts on January 23. The jury was aware of the conflict in the testimony and apparently credited the testimony of Morgan, as it was entitled to do.
Defendant also contends that the prosecution acted improperly in vouching for Morgan's credibility by offering testimony by Special Agent Kathy Adams that the apparent inconsistency between the testimony of Tanita Akmin and Raymond Morgan concerning defendant's whereabouts on January 23 could be explained, because the drug transaction could have occurred while the epidural was being administered when defendant was not in the room with Ms. Akmin. There is no factual basis for this claim. It was defense counsel, not a prosecutor, who asked Agent Adams "[i]s there any explanation that you can render to us that would appear to be a conflict in the testimony in the whereabouts of Billy Lampton, that he was at once in the delivery room and holding the hand of his wife, or his girlfriend at the time, that he was supposed to be delivering drugs to your confidential informer?" Record Document 779, p. 244. Defendant is not entitled to relief on this claim.
DOUBLE JEOPARDY
It is not necessary to discuss the factual background which led to the trial judge ordering a mistrial, in order to analyze the merits of the double jeopardy claim. Suffice it to say that the mistrial was ordered on Lampton's motion, opposed by the government.
"The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense." Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982) (footnote omitted). Generally, where the mistrial is declared at the behest of the defendant the Double Jeopardy Clause does not bar a retrial of the defendant. However, "[t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions." United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). Thus, where the prosecutor's conduct "is intended to `goad' the defendant into moving for a mistrial . . . a defendant [may] raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy. 456 U.S. at 676 , 102 S.Ct. at 2089.
There is no evidence to support a conclusion that the prosecutors acted in a manner "intended to `goad' the defendant into moving for a mistrial." "Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Oregon v. Kennedy, 456 U.S. at 675-76, 102 S.Ct. at 2089. Lampton offers nothing to support a conclusion that the prosecutor's activities were designed to subvert the prohibition against double jeopardy. Defendant is not entitled to the relief sought.
SENTENCE ENHANCEMENT-CONSTITUTIONALITY OF PRIOR CONVICTIONS
Defendant contends that the trial judge improperly enhanced his sentences based upon two prior state convictions which were unconstitutionally obtained because they resulted from guilty pleas which were made without defendant's full understanding and knowledge. This claim lacks merit.
Because the state convictions relied upon to enhance defendant's sentence occurred more than five years before the government filed the bill of information to enhance defendant's convictions, 21 U.S.C. § 851(e) prohibits defendant from challenging the validity of those convictions. United States v. Gonzales, 79 F.3d 413, 427 (5th Cir. 1996); United States v. Fragosa, 978 F.2d 896, 902 (5th Cir. 1992)
21 U.S.C. § 851(e) provides that "[n]o person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction."
Defendant also contends that his prior convictions, which were initiated by bills of information, cannot be used to enhance his sentences because 21 U.S.C. § 851(a)(2) requires that the prior conviction have been initiated pursuant to an indictment. Title 21 U.S.C. § 851(a)(2) provides "[a]n information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed." Because the Fifth Circuit considered and rejected this claim on direct appeal, the claim is barred from collateral review. United States v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997).
Relying on United States v. Covington, 133 F.3d 639 (8th Cir. 1998), defendant contends that his October 9, 1987, conviction for possession of cocaine cannot be used to enhance his sentences because the state judge suspended the term of imprisonment imposed for the conviction. In Covington, the Eighth Circuit held that the defendant did not qualify as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 because one of his prior offenses had not "resulted in the defendant being incarcerated during any part of [the] fifteen year period" ending when the defendant's instant offense was committed. Id. at 642. In the present case the sentencing judge did not apply U.S. Sentencing Guideline § 4B1.1. Accordingly, United States v. Covington is inapplicable. Moreover, 21 U.S.C. § 851 does not require that the defendant actually be imprisoned as a result of a prior felony drug conviction in order to enhance a defendant's sentence based on that prior felony drug conviction.
Defendant refers to his conviction for possession of cocaine as the October 9, 1987 conviction. Although defendant was arrested on October 9, he pleaded guilty on January 21, 1988. This conviction is the conviction alleged in Count 1 of the "Bill to Establish Prior Convictions."
DOUBLE JEOPARDY: LESSER INCLUDED OFFENSE
Relying on Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), defendant urges that his conviction for conspiracy to possess a controlled substance with intent to distribute ( 21 U.S.C. § 846) is a lesser included offense of operating a continuing criminal enterprise ( 21 U.S.C. § 848), and therefore his conviction under both counts violates the constitutional prohibition against double jeopardy. The government concedes that if the conviction for operating a continuing criminal enterprise is valid, then the conspiracy conviction must be vacated.
There is no basis for invalidating defendant's conviction for operating a continuing criminal enterprise. Accordingly, I hereby vacate defendant's conviction for conspiracy to possess cocaine, heroin, and marijuana with intent to distribute.
UNANIMITY OF CRIMINAL ACTS
Defendant was convicted of engaging in a continuing criminal enterprise. Title 21 U.S.C. § 848 defines "`continuing criminal enterprise' as involving a `violat[ion]' of the drug statutes where `such violation is apart of a continuing series of violations.'" United States v. Richardson, 526 U.S. 813, 815, 119 S.Ct. 1707, 1709, 143 L.Ed.2d 985 (1999) ( quoting 21 U.S.C. § 848(c)). In Richardson, the Supreme Court held that "a jury in a federal criminal case brought under § 848 must unanimously agree not only that the defendant committed some `continuing series of violations' but also that the defendant committed each of the individual `violations' necessary to make up that `continuing series.'" Id.
Defendant urges that his conviction for engaging in a continuing criminal enterprise must be vacated because the jury did not unanimously agree on the specific criminal acts that constitute the continuing series of violations necessary to support a conviction under 21 U.S.C. § 848. Contrary to defendant's contention, the unanimity requirement mandated by Richardson was satisfied. The indictment identifies the predicate criminal acts supporting the continuing criminal enterprise charge as the distribution of heroin by Lampton on January 23, 1996, January 31, 1996, and March 10, 1996, and the conspiracy to distribute heroin, marijuana, cocaine, and cocaine base. Each of those predicate acts was also charged as a substantive violation. The jury convicted Lampton of each of those substantive violations. The jury unanimously agreed that the defendant committed each of the three distinct violations necessary to make up the continuing series of violations necessary to support the defendant's conviction under § 848.
It is of no consequence that defendant's conviction for violating § 848 that the conspiracy conviction has been vacated. "A `series of violations' generally constitutes three or more violations of the federal narcotics laws." United States v. Lopez, 233 F.3d 884, 885 n. 2 (5th Cir. 2000) ( citing United States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000)). The jury convicted defendant of three counts of distributing heroin.
CALCULATION OF QUANTITY OF DRUGS
Petitioner challenges the calculation of the quantity of drugs upon which his sentences were based. As noted above, the conspiracy conviction must be vacated; thus there is no need to analyze this claim insofar as defendant seeks to vacate his conviction and sentence on the conspiracy count.
Defendant's sentences of 30 years imprisonment on each count of distributing heroin did not depend upon the calculation of the quantity of heroin involved in those transactions. Because those sentences were imposed pursuant to 21 U.S.C. § 841(b)(1)(C), the statutory provision applicable to the distribution of an unspecified quantity of heroin, this claim lacks merit.
CONSTITUTIONALITY OF SENTENCING ENHANCEMENTS POST- APPRENDI
Relying on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) and Apprendi v. New Jersey, 530 U.S. 466. 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant asserts that his drug convictions should be vacated because the indictment failed to allege the quantities of the drugs involved in the drug offenses and failed to allege the prior convictions used to enhance defendant's sentences. Additionally, defendant contends that drug related convictions for drug offenses must be vacated because the jury did not determine the quantity of drugs involved in those offenses using the "beyond a reasonable doubt" standard.
As with defendant's claim that the quantity of drugs involved in the conspiracy was erroneously calculated, I need not address this claim insofar as it relates to the conspiracy count because that conviction has been vacated on other grounds. To the extent that defendant contends that his convictions or sentences on the remaining drug trafficking counts must be set aside because the indictment failed to state the quantify of drugs involved in those offenses and the jury failed to determine the quantity of drugs involved in those counts using the "beyond a reasonable doubt" standard, the claim lacks merit.
In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63. As noted earlier, defendant's sentences for his convictions for distribution of heroin were based on 21 U.S.C. § 841(b)(1)(C), the statute applicable to offenses involving an unspecified quantity of heroin. Because the sentences for those convictions were not enhanced based on the quantity of heroin involved in those transactions Apprendi is inapplicable.
To the extent that defendant contends that his drug related convictions and their corresponding sentences must be vacated because the indictment failed to allege the prior convictions used to enhance his sentences and the jury did not find beyond a reasonable doubt that he had been convicted of those offenses, the claim lacks merit. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that 8 U.S.C. § 1326(b)(2), authorizing the imposition of an enhanced penalty because the defendant is a recidivist, does not define a separate crime. The Court rejected the argument that because the fact of recidivism increased the maximum penalty to which the defendant was exposed, the Constitution requires that recidivism be treated as an element of the crime and be charged in the indictment and proven to the jury beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. Almendarez-Torres "stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged." Jones v. United States, 526 U.S. at 248, 119 S.Ct. 1215, 143 L.Ed.2d 311. In Apprendi the Supreme Court expressed reservations about its decision in Almendarez-Torres. Nevertheless, the Supreme Court declined to overrule Almendarez-Torres, thus creating a narrow exception to the general rule that facts that enhance the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Until the Supreme Court overrules Almendarez-Torres, I am bound by its holding. See United States v. Nava-Perez, F.3d 2001 WL 118395 (5th Cir. (Tex.) Feb. 12, 2001). See also United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000), United States v. Martinez-Villava, 232 F.3d 1329 (10th Cir. 2000), United States v. Thomas, F.3d 2001 WL 178506 (11th Cir. (Fla.) Feb. 23, 2001).
The Supreme Court stated:
Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset.Apprendi v. New Jersey, 120 S.Ct. at 2362 (footnote deleted).
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that he is entitled to habeas relief because his counsel rendered ineffective assistance in the following respects:
failing to investigate witnesses who would have supported defendant's contention that he was not at the heroin transaction on January 23, 1996;
failing to cross-examine Special Agent Brechtel regarding the "302" surveillance form for January 23, 1996;
failing to urge that defendant's second trial violated the constitutional prohibition against double jeopardy;
failing to urge the unconstitutionality of defendant's prior state felony drug convictions;
failing to urge that sentencing defendant for the conviction under 21 U.S.C. § 846 and 21 U.S.C. § 848 violated the constitutional prohibition against double jeopardy; and
failing to move to suppress defendant's confession.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two prong test for evaluating claims of ineffective assistance of counsel: a defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. With regard to the performance prong, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. There is a strong presumption that an attorney's performance "falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065
In order to satisfy the prejudice requirement, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.
The burden of demonstrating prejudice rests on the defendant. Id. at 693, 104 S.Ct. at 2067. The defendant must prove that an alleged error actually had an adverse effect on the defense. "Even a deficient performance does not result in prejudice unless that conduct so undermined the proper functioning of the adversary process that the trial cannot be relied upon as having produced a just result." Knox v. Johnson, 224 F.3d 470, 479 (5th Cir. 2000) citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052.
Defendant asserts that his counsel rendered ineffective assistance because he failed to urge that defendant's second trial violated the constitutional prohibition against double jeopardy. This claim lacks merit. For the reasons outlined herein above, defendant's second trial did not violate defendant's right to be from double jeopardy. Because defendant's second trial did not violate the Double Jeopardy Clause, counsel's failure to urge such a violation cannot constitute ineffective assistance. Similarly, counsel did not render ineffective assistance by failing to challenge the validity of the state court convictions used to enhance petitioner's sentences because the statute of limitations set out 21 U.S.C. § 851(e) precluded relief on that ground.
Having concluded that defendant's convictions for both conspiracy under 21 U.S.C. § 846 and engaging in a continuing criminal enterprise under 21 U.S.C. § 848 violate the constitutional prohibition against double jeopardy, and having ordered the conviction under 21 U.S.C. § 846 vacated, I need not address defendant's claim that his counsel rendered ineffective assistance by failing to urge this double jeopardy violation.
Defendant also contends that his counsel rendered ineffective assistance by failing to interview as potential witnesses Juanita Akmin, Sheba Akmin, and Deshon Crawford, whose testimony would have supported defendant's allegation that he could not have been involved in the distribution of heroin on January 23, 1996, because he was at Lakeland Hospital with Tanita Akmin and by failing to discover the exculpatory evidence contained in the hospital records. This claim lacks merit.
There was strong evidence of defendant's participation in that distribution of heroin, including Raymond Morgan's testimony, an audio tape of the conversation between Lampton and Morgan arranging the transaction, an audio tape of the transaction, Special Agent Adam's identification of Lampton's voice on the tape recorded during the transactions, and the FBI "302" surveillance form identifying a vehicle matching the description of defendant's vehicle at the location of the transaction. Given the direct and circumstantial evidence of defendant's presence at the heroin distribution on January 23, 1996, I cannot conclude that there is a reasonable probability that the jury would have acquitted defendant of distributing heroin on January 23 if it had heard testimony by Ms. Akmin's mother and sisters that defendant was at Lakeland Hospital during the relevant time, including during the time that the epidural was administered, and had seen the hospital records now offered by defendant.
Defendant also urges that his counsel rendered ineffective assistance because he failed to cross-examine FBI Special Agent Brechtel regarding the "302" form detailing the surveillance conducted on January 23. Defendant urges that a "cross examination" of Agent Brechtel would have produced evidence concerning the exact time the drug transaction took place on January 23 and would have shown that there was no direct proof from FBI agents that Lampton was present at the January 23 transaction.
Although defense counsel did not cross examine Agent Brechtel concerning the January 23 "302" surveillance form, defense counsel did introduce that form into evidence. The form indicates the precise time during which the transaction occurred. Moreover, the "302" form does not imply that any FBI agent identified Lampton as a participant in the transaction. Considering that the "302" form introduced into evidence by defendant's counsel provides the same evidence that defendant contends his counsel was ineffective for failing to obtain by "cross-examining" Agent Brechtel, I cannot conclude that there is a reasonable probability that if Agent Brechtel had appeared as a defense witness to testify concerning the January 23 surveillance form and concerning the surveillance conducted on that date, the jury would have acquitted defendant of distributing heroin on that date. Accordingly, defendant has failed to satisfy the prejudice prong of the Strickland test.
Defendant also contends that his counsel provided ineffective assistance because he failed to move to suppress defendant's "supposed" confession. FBI Special Agent Robert Nelson testified that after he transported defendant to the FBI's office following his arrest, Lampton gave an oral statement in which he admitted having purchased a pound of heroin several days before his arrest, admitted to purchasing 70 pounds of marijuana at $400 per pound which he subsequently distributed to his associates free of charge, and gave details of his involvement in drug trafficking including the price he paid for kilogram quantities of heroin and cocaine. Defendant does not urge that he was not informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that he was denied his right to counsel prior to making the statement, or that the confession was coerced or involuntary. Rather, he urges that he did not make the statement attributed to him.
Defendant has not identified, or even suggested, any valid basis for suppressing his statement, The critical issue concerning the statement is the credibility of Special Agent Nelson. Because Nelson's testimony concerning the statement is not incredible as a matter of law, the determination of Agent Nelson's credibility falls within the province of the jury. United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997). Considering the lack of a reasonable basis upon which to move to suppress the statement, I cannot conclude that defense counsel rendered ineffective assistance by failing to move to suppress the statement.
CONCLUSION
Because the Double Jeopardy Clause prohibits a conviction for both engaging in a continuing criminal enterprise ( 21 U.S.C. § 848) and the lesser included offense of conspiracy to distribute heroin, cocaine, and marijuana ( 21 U.S.C. § 841(a)), I grant defendant's motion for relief under 28 U.S.C. § 2255 to the extent it seeks to vacate his conviction under 21 U.S.C. § 846. I order Count 7 of the redacted superseding indictment dismissed and order that the sentence imposed on August 6, 1997, on that count be vacated. In all other respects, defendant's motion is denied.