Opinion
97 Cr. 545 (BSJ)
October 12, 2001
Order Opinion
I. BACKGROUND
On June 4, 1997, Indictment 97 Cr. 545 was filed in five counts — alleging violations of 21 U.S.C. § 846, 812, 841(a)(1), 841 (b)(1)(C), and 860 — against the petitioner, Granville I. Dehaney. The petitioner was engaged in dealing cocaine base ("crack") in and around the Newburgh, New York, area. Following a jury trial, the petitioner was convicted on all five counts of the indictment on February 11, 1998. On May 14, 1999, this court sentenced the petitioner to 135 months of imprisonment — the lowest possible sentence within the appropriate Sentencing Guidelines range — to be followed by five years of mandatory supervised release, and a special assessment of $500.
The petitioner appealed this court's decision to the Second Circuit. On January 14, 2000, the Second Circuit issued a summary order affirming the petitioner's conviction on all counts. The petitioner's writ of certiorari to the Supreme Court was denied on May 22, 2000.
The petitioner now moves pursuant to 28 U.S.C. § 2255 to challenge the validity of his conviction and sentence. The petitioner claims: (1) that his conviction and the sentence imposed are unconstitutional in accordance with the ruling of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) that the petitioner's trial was prejudiced by redacted plea agreements to the point that it incriminated the petitioner and violated his Sixth Amendment right of confrontation; and (3) that he received ineffective assistance of counsel from all three of his attorneys throughout his trial, sentencing, and appeal. For the reasons stated below, the petitioner's motion is denied.
II. DISCUSSION A. Apprendi — related Arguments
This court rejects the petitioner's challenge to the constitutionality of his conviction and the sentence imposed under Apprendi, 530 U.S. 466. The interpretation suggested by the petitioner to be given to the Supreme Court's decision in Aprendi is simply wrong.
The primary rule articulated by the Supreme Court in Apprendi is that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum penalty must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. In cases subsequent to Apprendi, the Second Circuit has affirmed the principle that any fact, including a drug quantity, that sets the prison term above the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. However, the Second Circuit has further held that facts that increase the sentence term within the statutory range need not be submitted to the jury and proven beyond a reasonable doubt. Rather, where a relevant factor increases the prison term within the statutory range, the sentencing judge is to apply a preponderance of the evidence standard when determining the relevance and significance of the fact. See United States v. White, 240 F.3d 127 (2d Cir. 2001)
In United States v. White, 240 F.3d 127, the Second Circuit rejected the defendant's claim that allowing sentencing judges to consider factors not before the jury runs afoul of the Supreme Court's holding inApprendi. In so holding, the Second Circuit concluded:
Where, as here, factual determinations were used to sentence the defendant to a sentence within the maximum allowed by statute, Apprendi is not controlling, and such determinations can be made by the [sentencing] court without violating the defendant's right to due process. As for the standard of proof that must be used, we have recently confirmed, albeit without reference to Apprendi, that a preponderance of the evidence is the appropriate standard to be used in considering uncharged relevant conduct for sentencing purposes.Id. at 136 (citing United States. v. Cordoba Murgas, 233 F.3d 704, 708-09 (2d Cir. 2000)); see United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001) ("We see nothing in the [Supreme] Court's holding in Apprendi or its explication of the holding that alters a sentencing judge's traditional authority to determine those facts relevant to the selection of an appropriate sentence within the statutory maximum.") (citations omitted).
The concurrent prison term of 135 months, imposed by the court, is well below the statutory maximum of twenty years' imprisonment for any amount of crack under § 841(b)(1)(C). Therefore, it was not necessary for the jury to make a determination of the specific quantity of crack in this case, and the conviction and sentence are not subject to the rule articulated in Apprendi. Any facts relied upon by the court in imposing the sentence were properly found by the court itself and do not stand in violation of the Supreme Court's decision in Apprendi.
The court's determination of the petitioner's Sentencing Guidelines range, which was calculated by the court by combining the 5.5 grams of crack stipulated to at trial with four previous transactions that were described in the Presentence Report, in compliance with the relevant conduct provision of the Sentencing Guidelines. The court assessed the petitioner a base offense level of twenty-six, which corresponds to amounts of at least five but less than twenty grams of cocaine base. In either instance — using only the 5.5 grams, or using the combined amount of 11.5 grams — the petitioner still remains at a base offense level of twenty-six because both 5.5 grams and 11.5 grams fall within that level.
At trial, both parties Stipulated to an approximate total weight of crack of 5.5 grams. (See Tr. 142, Government's Exhibit 13). References to "Tr." are to the transcript of the petitioner's jury trial in this court, which was held on February 9-11, 1998.
Because this court finds no constitutional problem with either the conviction or sentence imposed on the petitioner, the court need not reach the issue of whether the petitioner's Apprendi claims are barred on collateral review, or whether the petitioner procedurally defaulted on his Apprendi claims by not raising them at trial, sentencing, or on direct appeal.
B. Redacted Plea Allocutions
The petitioner claims prejudice from the admission of the redacted plea allocutions of three of his co-conspirators. His claims fail entirely. The allocutions were admitted properly at trial over his attorney's objection (See Tr. at 215, 248), and the Second Circuit found no error in their admission. See United States v. Dehaney, No. 99-1288, (2d Cir. Jan. 14, 2000) (summary order). In addition, the petitioner claims that the Government improperly referred to one of the co-conspirators' allocutions as that of the petitioner's wife during summations. However, evidence at trial had established that the particular co-conspirator was, in fact, the wife of the petitioner. (See Tr. at 45.) The court finds no prejudice with respect to the use of the redacted allocutions or reference to the petitioner's wife.
C. Ineffective Assistance of Counsel
The petitioner, who has been represented by three different counsel at various stages of this case, contends that he received constitutionally ineffective assistance of counsel from all of them. This court rejects those contentions entirely, as the claims are baseless.
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must (i) show that his counsel's performance fell below an "objective standard of reasonableness" under "prevailing norms," and (ii) "affirmatively prove prejudice" resulting from counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). By satisfying these two elements, a defendant can show that a "counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Under the first prong of Strickland, a conviction will not be overturned where counsel provided "reasonably effective assistance" to the defendant. Id. at 687. Furthermore, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." See United States v. Aguire, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). Affirmative proof of prejudice requires that the petitioner demonstrate "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 446 U.S. at 693-94 (1984)
The petitioner argues that his first attorney, Ms. Susanne Brody, rendered ineffective assistance of counsel by failing to investigate one of the elements charged against the petitioner as part of the four substantive counts of the indictment. Referred to as the "schoolhouse" element, Counts Two through Five of the indictment charged the petitioner with distributing and possessing with intent to distribute cocaine basewithin 1000 feet of a schoolhouse. However, the Government voluntarily withdrew the "schoolhouse" element, which the petitioner claims Ms. Brody failed to investigate, from the trial jury. Furthermore, the court did not factor that allegation into the petitioner's sentence. See U.S. Sentencing Guidelines Manual § 2D1.2 (providing offense level enhancements for drug transactions involving a "protected location"). Accordingly, even if Ms. Brody acted unreasonably in. failing to investigate the "schoolhouse" element of the indictment, the petitioner cannot demonstrate that her failure to do so resulted in any prejudice whatsoever.
As the Supreme Court has noted, the "object of an ineffectiveness claim is not to grade counsel's performance;" therefore, "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id. at 697; see, e.g., Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991) (declining to address alleged deficiencies of counsel given the overwhelming evidence of guilt at trial). The court is particularly mindful of that principle when considering the petitioner's allegation of ineffective assistance by his trial counsel, Mr. David Secular, whom the petitioner contends failed to interview witnesses, preserve issues for appeal, or craft a trial strategy.
Accordingly, the petitioner's claims concerning Mr. Secular's performance will first be considered in light of the evidence that was presented by the Government at trial. Indeed, the strength of the Government's evidence in this case makes it quite difficult for the petitioner to sustain the burden of demonstrating prejudice as a result of his attorney's actions. See United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991) ("[G]iven the plethora of evidence against [appellant], there is little reason to believe that alternative counsel would have fared any better."); United States v. Reiter, 897 F.2d 639, 645 (2d Cir.) (holding that even though counsel's performance fell below professional standards, the defendant's Sixth Amendment claim fails "given the overwhelming evidence of [the defendant's] guilt"), cert. denied, 498 U.S. 817 (1990); United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir.) (finding no prejudice where evidence is overwhelming), cert. denied, 484 U.S. 957 (1987).
The Government overwhelmingly established at trial that the petitioner was the leader of a drug organization that operated in and around the Newburgh, New York, area. At trial, the Government produced testimony from an undercover agent, Detective Thomas O'Connor, who described multiple purchases of crack from the petitioner and his co-conspirators. (See Tr. at 18-21, 27-29, 36-39, 40-53.) The undercover agent's testimony was corroborated by the testimony of one of the petitioner's co-conspirators, who testified that he had both purchased drugs from the petitioner and assisted the petitioner in distributing crack. (See Tr. at 146-49, 157-58, 166-67.) Although he did not identify the undercover agent, the co-conspirator's testimony recalled the circumstances of both of the sales that he made to the undercover agent at the petitioner's direction. (See Tr. at 149-53.) The undercover agent's testimony was also corroborated by the admissions of three other co-conspirators, including the petitioner's wife, in their guilty plea allocutions. In the portions of the properly redacted allocutions read to the jury, the three co-conspirators admitted-delivering packages of drugs to the undercover agent and identified those deliveries by location and dates corresponding with the agent's testimony. (See Tr. at 241-44.) In addition to other evidence, the Government produced tape recordings of conversations between the undercover agent and the petitioner, telephone records, and other documentary evidence linking the petitioner to the location and telephones used in connection with the drug transactions.
Thus, even if the court deemed Mr. Secular's performance deficient, which it does not, the court would deny the petitioner's ineffective assistance claim based on the overwhelming nature of the Government's case. The petitioner simply cannot demonstrate that he was in any way prejudiced by the performance of his trial attorney. Moreover, the court finds that Mr. Secular did provide the petitioner effective assistance of counsel. Mr. Secular mounted a vigorous defense. For example, he skillfully challenged the testimony of the undercover detective through cross examination. (See Tr. at 54-83, 90-112.)
Lastly, the petitioner argues that his third attorney, Mr. Paul Madden, provided ineffective assistance of counsel during sentencing and on direct appeal. Again, this court finds those claims to be wholly without merit. Evidence of Mr. Madden's effective performance is abundant. The petitioner himself asked the court to allow Mr. Madden to continue in his role as counselor on appeal, presumably on the basis of Mr. Madden's performance during the sentencing stage. (See Sent. Tr. at 22.) Mr. Madden successfully argued that the petitioner's offense level should not have included the one-level adjustment for use of a minor calculated in the Presentence Report. (See Sent. Tr. at 3-5.) Furthermore, Mr. Madden's argument for a downward departure based on the over-representation of the seriousness of his criminal history score resulted in a downward shift from Category VI to Category IV. (See Sent. Tr. at 6-7). Mr. Madden also convinced the court to sentence his client to the low end of the range indicated by the Sentencing Guidelines, over the strong dissent of the Government. (See Sent. Tr. at 11-13.)
References to "Sent. Tr." are to the transcript of the petitioner's sentencing hearing before this court on May 14, 1999.
Despite Mr. Madden's successful performance, the petitioner now claims that Mr. Madden failed to raise an argument for a downward departure based upon "sentencing manipulation" or "entrapment." However, the record shows that Mr. Madden did briefly make the argument. (See Sent. Tr. at 10.) Moreover, any sentencing manipulation argument must of necessity fail in this case because the petitioner cannot argue that he was not predisposed to commit the offense, nor does he try. See United States v. Gomez, 103 F.3d 249, 256 (2d Cir. 1997); United States v. Rosa, 17 F.3d 1531, 1551 (2d Cir. 1994). Given the outcome of Mr. Madden's arguments before this court during the sentencing, the court finds that the petitioner can not demonstrate that he was prejudiced in any way by Mr. Madden's performance with respect to his sentencing.
The petitioner also contends that Mr. Madden provided ineffective assistance on appeal; however, the petitioner completely fails to support his claims with any specific arguments. The court notes that not only did Mr. Madden file a brief before the second circuit but also that the petitioner himself filed a separate pro se brief. Mr. Madden also filed the petitioner's writ of certiorari. The court finds that the petitioner fails to demonstrate either ineffective assistance during his appeal or resultant prejudice.
III. CONCLUSION
For the reasons set forth above, the petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied. The petitioner may not. appeal this order to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253 (c)(1). A certificate will be granted "only if the applicant has made a showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). This court finds that the petitioner will not be able to sustain his burden. Thus, this court declines to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Should the petitioner seek to appeal in forma pauperis, this court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).SO ORDERED.