Opinion
Case Number 97 C 8348
June 18, 2001
This is a § 2255 petition filed by Andre Scurlock, whose conviction was affirmed in United States v. Griffin, 84 F.3d 912 (7th Cir. 1996). The facts and evidence are set forth in that opinion.
All the claims (excepting, perhaps, the Apprendi v, New Jersey, 530 U.S. 466 (2000), claim) are waived for failure to raise them on appeal. Petitioner knows this and recasts his claims as a ground for finding that his trial counsel was ineffective. To make this claim he must also establish that his appellate counsel was ineffective. Appellate counsel and trial counsel were different lawyers and, when that is the case, the petitioner must show that appellate counsel was ineffective for failure to raise trial counsel's incompetence — a tough row to hoe.
I do not pause long to consider whether appellate counsel made a reasonable decision to forego an attack on the performance of defense counsel (now Judge) Martin Agran. I think it is clear that he did. At bottom, the complained-of omissions (some of which did not actually occur) would have made no difference at trial.
The first claimed omission was failure to move to redact an allegation in the conspiracy count. I would have denied such a motion and there would be no error (let alone fundamental error) in so doing. The acts of the alleged co-conspirators could be part of the conspiracy which was charged, and the government was entitled to allege this and try to prove it. Petitioner was entitled to argue that there were multiple conspiracies in some of which he did not participate. It was for the jury (which was instructed on multiple conspiracy law and the necessity for finding guilt based on petitioner's own acts) to decide whether petitioner criminally participated in a single conspiracy. Petitioner was not entitled to have the government's theory knocked out of the case before the evidence was heard and, as it turned out, the theory was supported by sufficient evidence.
The second claimed omission was the failure to ask for a severance. I would not have granted that one either and, in fact, I denied a similar motion filed by defendant Rux who had better grounds for it than did petitioner. Rux, who raised a lot of issues on appeal, did not challenge the denial of severance. Severance was not required in this case, and counsel was not ineffective if he failed to ask for it.
The third claimed omission was the failure to object to the witnesses Williams and Rhodes. As I recall, these two witnesses offered testimony about petitioner's own conduct, and there is no sound objection that would have precluded their testimony.
The fourth claimed omission was the failure to object to the late notice that Joy Sanchez would testify. Advance disclosure of witnesses is not required in federal criminal cases such as this one. Indeed, in this case the government showed good cause why it did not disclose her name until shortly before she testified. Considering its nature, there was no Rule 404(b) violation in the content of her testimony. I also note that the government's grounds for late notification of her appearance as a witness turned out to be quite sound. She falsely recanted her testimony after trial. The whole matter is described in the opinion on appeal. Griffin, 84 F.3d at 929-30.
So trial counsel's decisions were not made incompetently.
Petitioner adds one additional element to his claim of appellate counsel failure — that is the decision not to argue insufficiency of evidence and guideline errors. The insufficiency of evidence argument would clearly have failed as did similar arguments by Rux and Griffin. The guideline argument could properly have been declined by appellate counsel.
This leaves the Apprendi argument. Had Apprendi been decided at the time of petitioner's trial and, had the jury been instructed as it was, then petitioner would have a good claim for reduction of his sentence from 22 years to 20 years. In that sense, it is a valid complaint but it fails here for two reasons. I think Apprendi is not retroactive to the extent that it applies to final judgments. Nothing like Apprendi has been held to apply to collateral attacks since Griffith v. Kentucky, 479 U.S. 314 (1987). See Teague v. Lane, 489 U.S. 288 (1989). Most Courts of Appeals have suggested that Apprendi is non-retroactive. So that leaves to petitioner only the contention that his appellate counsel was ineffective for having failed to argue the issue. Obviously few lawyers would condemn a lawyer for not raising an argument that, while floating around in the world of criminal law, had not been warmly received on appeal. So it was, at most, an error in judgment to fail to argue Apprendi, the kind of error that counsel is permitted to make without being deemed incompetent. But none of this matters. The government had to prove a quantity of drugs that exceeded 500 grams. This was a case involving many kilograms, and no reasonable jury could have failed to find that the 500 gram threshold was not met. There was, at most, a harmless error.
The claim that the federal court lacked jurisdiction is just plainly wrong.
The petition for relief under § 2255 is denied. Since petitioner, as my discussion above suggests, has not made a substantial showing of the denial of a federal right, I will not issue a certificate of appealability on any issue.