Opinion
Case No. 96-40061-01, 00-3462-RDR.
September 10, 2001.
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant'spro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Having carefully reviewed the arguments of the parties and the record in this case, the court is now prepared to rule.
On January 13, 1997, the defendant was found guilty by a jury of conspiracy to possess 50 grams or more of cocaine base with intent to distribute [Count 1] and possession of 16.97 grams of cocaine base with intent to distribute [Count 2]. The court sentenced the defendant to 270 months on each conviction with the sentences to run concurrently. Her convictions and sentence were affirmed on appeal. United States v. Watkins, 188 F.3d 520, 1999 WL 609542 (10th Cir.), cert. denied, 528 U.S. 1034 (1999). Following sentencing, the defendant filed a motion for new trial pursuant to Fed.R.Crim.P. 33. This motion was denied by the court. The defendant has appealed that ruling and it remains pending on appeal. The defendant then filed the instant motion on November 30, 2000.
In this motion, the defendant makes two arguments. First, she contends that she was denied effective assistance of counsel because her trial attorney (1) failed to call certain witnesses; (2) refused to let her testify; and (3) failed to subpoena certain work records. She has also suggested that she was denied effective assistance of counsel because a tape recording of an interview was destroyed by Drug Enforcement Agency Agent Tom Walsh. Second, she asserts that her sentence is in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000).
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255;United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995). To be entitled to an evidentiary hearing, the defendant must allege facts which if proven would entitle him to relief.See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995),cert. denied, 517 U.S. 1235 (1996). "[T]he allegations must be specific and particularized, not general or conclusory." Id. The court finds that a hearing on the defendant's motion is not necessary for two reasons. First, the court finds that the materials already in the record conclusively show that the defendant is not entitled to relief on most of her claims. Second, the court finds that the defendant has not provided a sufficient factual basis to require a hearing on the remaining claims.
In the decision on appeal, the Tenth Circuit accurately summarized the evidence at trial as follows:
In May 1994, the DEA was asked to assist local law enforcement officers to investigate suspected crack cocaine distribution in Miami, Franklin and Lyons counties in Kansas. DEA Agent Tom Walsh worked undercover with local police and confidential informants to make purchases of crack cocaine from Lori Smith, Lester Smith, Lexie Lee Smith, Bernard Preston, Elinor Preston (Bernard Preston's sister), Eddie Merritt and Demond Bridges. Lexie Smith and Bernard Preston were cousins; the entire group allegedly worked for another of Bernard Preston's cousins, James Wardel Quary. All of these individuals were ultimately indicted on drug charges, and all but Quary eventually pled guilty. Betty Watkins was connected to the group through her daughter, Renee Watkins, who dated in succession Bernard Preston, Bridges and Quary, and who had children by the latter two. Quary and Renee lived with Watkins for a while from the end of 1993, when Quary was released from prison on prior drug trafficking charges, until the beginning of 1994, when he and Renee moved to an apartment leased by Watkins.
Bernard Preston became the government's chief witness at Watkins' trial and testified pursuant to a plea agreement. According to Preston, Watkins sold crack cocaine out of her house in Ottawa, Kansas to a steady stream of customers, and she obtained her drug supply from Quary. Preston testified that Watkins, who is white, would drive Quary to Kansas City on buying trips, reasoning that police would be less likely to bother a white driver. Preston stated that he went on these trips with Quary and Watkins three or four times, and that he and Quary occasionally went without Watkins.
Local law enforcement officers Timothy Woods and Tim Cronin participated in the investigation. Woods testified at trial that on May 8, 1996, the two officers met with a confidential informant who told them Watkins was selling crack, and set up a controlled purchase at Watkins' house. Based on this purchase, the officers obtained a search warrant for the house. When the warrant was executed shortly thereafter, officers discovered Watkins at the kitchen sink with a jar containing small packages of crack. They found additional packages of crack, a safety razor, and a large chunk of crack in the sink. Officers seized a total of 16.97 grams of crack cocaine, the confidential informant's buy money, $2,153 in cash, two checkbooks, and an address book. One of the checkbooks was in Watkins' name but listed the apartment address where Renee and Quary lived. The address book contained phone numbers for "Bern" (a nickname for Bernard Preston) and "Demo" (a nickname for Demond Bridges).
The only person in the house besides Ms. Watkins at the time officers executed the search warrant was Watkins' four-year-old grandson. After being read her Miranda rights, Watkins agreed to talk to Officer Cronin upon his promise not to send the grandchild to a foster agency. She then admitted to Cronin that the contents of the sink belonged to her.
Watkins was subsequently taken to the local jail where she was read her Miranda rights a second time and was interviewed again, this time by Cronin and DEA Agent Thomas Walsh. Cronin tape-recorded this interview, which lasted for two hours. During the interview, Watkins apparently admitted that she had sold crack cocaine since 1994, but she refused to identify her supplier. She also apparently admitted that Bernard Preston, Demond Bridges and Demetrius Clay had started her off and taught her how to sell drugs, but she stated that she made her trips to purchase drug supplies by herself, and she adamantly denied that she was involved with Quary in this enterprise and insisted that Quary had nothing to do with drugs.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
"The benchmark for judging any claim of ineffectiveness must be whether the counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To obtain relief on an ineffective assistance of counsel claim, a defendant must satisfy a two-pronged test. First, she "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Second, she must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. To meet the first prong, a defendant must show that defense counsel's performance was neither reasonable under prevailing professional norms nor sound trial strategy. To meet the second prong, petitioner must show a reasonable probability that, but for the deficiencies in counsel's conduct, the result of the case would have been different. A probability is reasonable if it is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. The court "may address the performance and prejudice components in any order, but need not address both if [the defendant] fails to make a sufficient showing of one." Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998), cert. denied, 120 S.Ct. 94 (1999); see also Davis v. Executive Director of Dept. Of Corrections, 100 F.3d 750, 760 (10th Cir. 1996) (noting that court can proceed directly to prejudice without addressing performance), cert. denied, 520 U.S. 1215 (1997).
There is a strong presumption that counsel provided effective assistance of counsel, and the defendant has the burden of proof to overcome that presumption. United States v. Cronic, 466 U.S. 648, 658 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. The reasonableness of the counsel's performance must be evaluated at the time of the alleged error. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). "For counsel's [decision] to rise to the level of constitutional ineffectiveness, the decision . . . must have been `completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.'" Hatch, 58 F.3d at 1459 (quoting United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983)). Neither hindsight nor success is the measure of the reasonableness of counsel's challenged conduct. Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 118 S.Ct. 126 (1997).
The court finds it necessary to make an initial comment concerning this motion. The court vividly remembers the trial of this matter even though it occurred several years ago. Nevertheless, the court has read the transcript of the trial in order to fully refresh my memory. The transcript confirms the impression the court had during the trial of the matter. The court found the defendant ably represented by her counsel. Defense counsel was thoroughly prepared and did an extremely effective job in a difficult case. He was confronted with formidable evidence demonstrating the defendant's guilt. Nevertheless, he skillfully explored the evidence and made every effort to lessen its harm to the defendant. He displayed a thorough knowledge of the factual background and showed that he had actively investigated the matter. He made appropriate objections and arguments. In sum, he zealously represented his client.
The defendant initially argues that her trial counsel was ineffective because he failed to call four witnesses that she wanted to testify. She has provided a very brief summary of what each would have offered in testimony. She has also indicated that her counsel was ineffective because he failed to subpoena some employment records.
The court notes a variety of problems with the allegations made by the defendant. First, we note that they are vague and conclusory. The defendant has failed to specifically indicate what these witnesses would testify about and how this evidence would have impacted the charges against her. Second, the court notes that the defendant has failed to provide any support for any of her allegations. She has not offered an affidavit from any of the witnesses to indicate that they would testify as suggested by her in this motion. Third, the court notes that the defendant has failed to demonstrate or even argue that this evidence would have changed the result at trial. The evidence noted by the defendant is directed only at Count 1. The defendant has offered nothing to suggest that her conviction on Count 2 is flawed in any manner. This, of course, has significant importance here since the defendant received concurrent sentences on the two counts. Even if her conviction on Count 1 were overturned, she would still be serving the same sentence based upon the conviction in Count 2.
With that said, we shall proceed to consider defendant's claim that her counsel failed to call certain witnesses and failed to present certain evidence. At the conclusion of the government's case, the defendant's trial counsel informed the court and opposing counsel what witnesses might be called during the defendant's case. Two of the witnesses noted by the defendant in the instant motion, James Quary and Hope Robinson, were mentioned by defense counsel. Trial counsel also indicated that he might call a supervisor from the defendant's place of employment to testify about her work records. However, counsel did not choose to call either Quary, Robinson or the supervisor.
The defendant bears a heavy burden on this issue because counsel is presumed effective and because the strategic choices counsel make are "virtually unchallengeable." Strickland, 466 U.S. at 690. The decision whether to call particular witnesses is the type of strategic choice that falls within the range of reasonableness set forth in Strickland. See Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.), cert. denied, 525 U.S. 950 (1998). The court does not find that the defendant has overcome her heavy burden. The defendant has failed to demonstrate that her counsel's decisions were unreasonable. Moreover, the defendant has failed to show by a reasonable probability that her counsel's failure to call these witnesses or present the work records affected the trial's outcome.
Next, the defendant contends that her counsel was ineffective at trial because he refused to let her testify. The court finds that this claim is frivolous. The defendant has apparently forgotten that the court addressed her failure to testify at trial. At the conclusion of the evidence, the court had the following colloquy with the defendant:
THE COURT: I think we're ready to proceed with some matters. I would like to first, Miss Watkins, ask you some questions before we proceed here. The first question would be: You've decided not to testify in this case, and I want to ask you a few questions about your decision. I want to make sure that you understand that you have the right to testify in this case. Do you understand that you have that right?
MS. WATKINS: Yes, I know that.
THE COURT: Do you understand that you are responsible for deciding whether you want to testify and not your attorney? He can assist you in that decision, but the ultimate decision has to be yours. Is that the situation?
MS. WATKINS: Yes.
THE COURT: And with this understanding, are you telling the Court that it is your decision not to testify in this case?
MS. WATKINS: Yes, sir.
The defendant has also suggested that her counsel was ineffective because a tape recording was destroyed by DEA Agent Walsh. The defendant has failed to articulate how the destruction of the tape recording by Agent Walsh constituted ineffective assistance of counsel. The court sees nothing that her counsel could have done to prevent this occurrence. APPRENDI CLAIM
The defendant contends that her sentence is in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). She notes that the jury was not instructed that drug quantity was an element of either charge against her. Accordingly, she argues that the maximum sentence on either charge was twenty years or 240 months, which is less than the sentences imposed.
The government does not address the substantive argument raised by the defendant. Rather, the government argues that the rule established in Apprendi cannot be raised on collateral review.
After careful review, the court has determined that defendant cannot raise this Apprendi challenge in a § 2255 motion because it contravenes the rules established in Teague v. Lane, 489 U.S. 288 (1989). See United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001; United States v. Sanders, 247 F.3d 139, 151 (7th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000). The court recognizes that the Tenth Circuit has not addressed this issue. But see Browning v. United States, 241 F.3d 1262, 1266-67 (10th Cir. 2001) (Apprendi challenge may not be raised on second or successive § 2255 motion). Nevertheless, we are persuaded that the aforementioned circuit courts correctly analyzed and decided the issue. We further note that several other judges in the District of Kansas have reached this conclusion. United States v. Moss, 137 F. Supp.2d 1249, 1252-53 (Kan. 2001) (Judge Vratil); United States v. Garcia, 2001 WL 579817 at * 5 (Kan. 2001) (Judge Lungstrum); United States v. McCloud, 2001 WL 173776 at * 2 (Kan. 2001) (Judge Saffels). Accordingly, the court finds that the defendant cannot challenge her sentences on this basis in a § 2255 motion.
IT IS THEREFORE ORDERED that defendant's motion to vacate, set aside or correct sentence (Doc. # 91) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for appointment of counsel (Doc. # 93) be hereby denied.