Opinion
No. 04 Civ. 8665 (SHS).
July 5, 2005
OPINION ORDER
Introduction
Roy Moody, proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Moody asserts three grounds in support of his petition. He first claims that his counsel, Sanford N. Talkin, Esq., was ineffective because (1) he did not object pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) to certain sentencing enhancements used to calculate Moody's sentence; (2) he did not object to a purported contradiction in the Presentence Report prepared by the Probation Department; and (3) he did not object to venue within the Southern District of New York. Moody claims next that his sentence is unconstitutional in light of Apprendi and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Last, he claims that the purported contradiction in the Presentence Report ("PSR") rendered the "sentencing process unreliable. . . ." (Pet.'s Mem. of Law dated Oct. 4, 2004 at 3).
As set forth more fully below, Moody's petition is denied because Moody's counsel was not ineffective; Moody waived hisApprendi objection and even if he had not waived the objection, it is meritless; Booker does not apply retroactively on collateral review; he waived his objection to the claimed contradiction in the PSR, and even if he had preserved it, the purported contradiction did not undermine the sentencing process.
I. Facts
In June of 2001 the government filed a six count indictment against Moody, charging him with two counts of conspiracy to distribute 50 or more grams of crack cocaine pursuant to 21 U.S.C. §§ 841(b)(1)(A), 846, and four counts of using, carrying, and possessing a firearm in connection with a drug trafficking crime pursuant to 18 U.S.C. 924(c). (See Indictment No. S19 00 Cr. 671 (JSM)).
Specifically, count one charged Moody with participating in a conspiracy to distribute 50 or more grams of crack cocaine within 1,000 feet of a public school and also to distribute heroin. Counts two and three charged Moody with using, carrying, and possessing a firearm in connection with the conspiracy alleged in count one. Count four charged Moody with participating in a conspiracy to distribute 50 or more grams of crack cocaine in New York and North Carolina; counts five and six charged Moody with using, carrying, and possessing a firearm in connection with the conspiracy alleged in count four. (Id.).
In August of 2001 the court severed counts one, two, and three, and the parties proceeded to trial on counts four, five and six. (See Tr. dated Aug. 24, 2001). After the evidence closed the court dismissed count five pursuant to Fed.R.Crim.P. 29. (See Tr. dated Sept. 24, 2001 at 891:3-7). The jury acquitted Moody of count six but convicted him of count four, which carried a mandatory minimum sentence of 10 years' imprisonment and a maximum sentence of life imprisonment. (See Amended Judgment in a Criminal Case dated Sept. 13, 2002; 21 U.S.C. § 841(b)(1)(A)).
In July of 2002, Judge John S. Martin, Jr., who presided over the trial, dismissed the previously severed counts of the indictment and sentenced Moody for his conviction on count four. In calculating Moody's sentence, Judge Martin employed the then-mandatory U.S. Sentencing Guidelines. Pursuant to the guidelines, Judge Martin found by a preponderance of the evidence three facts that adjusted Moody's sentencing range upward. Specifically, Judge Martin found that "more than 1.5 kilograms [of crack cocaine] were involved in this conspiracy"; that Moody used a gun "in furtherance of the narcotics conspiracy"; and that Moody had obstructed justice. (Tr. dated July 9, 2002 at 13:9-16; 24:10-15; 32:8-15, Ex. A to Letter of Daniel M. Gitner to the Court dated Apr. 19, 2005). With those enhancements established, Moody's applicable guideline range was 360 months' imprisonment to life. (Tr. dated July 23, 2002 at 2:2-6, Ex. B to Letter of Daniel M. Gitner to the Court dated Apr. 19, 2005).
Although Moody's counsel argued at length against the factual and legal bases for the enhancements, (Tr. dated July 9, 2002 at 8:20-33:11, Ex. A to Letter of Daniel M. Gitner to the Court dated Apr. 19, 2005), he did not object to the constitutionality of the sentencing procedure as violative of the principles established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Judge Martin sentenced Moody to 540 months' imprisonment to run concurrently with a New York state court sentence that Moody serve 15 years' to life imprisonment for murder. (Tr. dated July 23, 2002 at 16:7-11, Ex. B to Letter of Daniel M. Gitner to the Court dated Apr. 19, 2005).
Moody appealed his conviction and sentence and asserted four grounds: (1) that the court erroneously admitted irrelevant and prejudicial evidence; (2) that the court erroneously denied him a downward adjustment in his offense level due to his allegedly minor role in the conspiracy; (3) that the court erroneously applied the obstruction of justice enhancement to him; and (4) that the court erroneously attributed 1.5 kilograms of crack cocaine to him. See United States v. McFadden, 70 Fed.Appx. 31, 33 (2d Cir. 2003) (unpublished summary order).
However, Moody did not assert that his sentence violated the principles established in Apprendi or that the purported inconsistency in the PSR rendered the sentencing process unreliable. The United States Court of Appeals for the Second Circuit affirmed the district court's sentence in a summary order, id., and Moody timely filed this section 2255 petition.
II. The Legal Standards Applicable to Moody's Petition
"A motion under § 2255 is not a substitute for an appeal."United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). "A party who fails to raise an issue on direct appeal and subsequently endeavors to litigate the issue via a § 2255 petition most show that there was cause for failing to raise the issue, and prejudice resulting therefrom." Id. (quoting United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995)) (internal quotation marks and citations omitted); see also Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Alternatively, a petitioner may raise an issue for the first time on collateral review "if he can establish that the constitutional error . . . has probably resulted in the conviction of one who is actually innocent." Bousley, 523 U.S. at 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (internal quotation marks and citations omitted).
Cause "under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him. . . ." Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "Attorney ignorance or inadvertence" does not constitute cause because the attorney is the petitioner's agent with respect to the litigation. Id. However, attorney error that rises to the level of ineffective assistance of counsel does constitute cause because it is an independent violation of the Sixth Amendment and thus operates as an "external factor" that is "imputed to the State." Id. at 753-54 (internal quotation marks and citations omitted).
In turn, to demonstrate ineffective assistance of counsel, Moody must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688-94, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). First, he must show that his attorney's representation fell below an objective standard of "reasonableness under prevailing professional norms." Id. at 688. Second, he must show that there is a "reasonable probability" his sentence would have been different but for the attorney's error. Id. at 694.
"Judicial scrutiny of counsel's performance must be highly deferential." Id. at 698. "In considering the reasonableness of counsel's failure to object," the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir. 2004) (quoting Strickland, 466 U.S. at 689, 80 L.Ed.2d 674, 104 S.Ct. 2052).
III. Analysis
As set forth above, Moody asserts that he received ineffective assistance of counsel, that his sentence violated Apprendi andBooker, and that an inconsistency in the PSR rendered the sentencing process unreliable. The Court now turns to each of these contentions.
A. Moody Did Not Receive Ineffective Assistance of Counsel
Moody urges that his attorney was ineffective for (1) failing to object pursuant to Apprendi either at sentencing or appeal, (2) failing to object to an inconsistency in the PSR concerning information relevant to the sentencing enhancement for obstruction of justice, and (3) failing to object to venue. The Court disagrees with each of Moody's assertions.
1. Any Apprendi Objection Would Have Been Meritless
In Apprendi, the Court held that a sentence violated the Sixth Amendment when facts found by the judge by a preponderance of the evidence resulted in a sentence greater than the otherwise applicable statutory maximum for the offense of conviction.Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435. At the time of Moody's sentencing and appeal, the Second Circuit had established that even though a sentence is based upon facts found by a judge by a preponderance of evidence, the "constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction." United States v. Thomas, 274 F.3d 655, 664 (2d Cir. 2001); see also United States v. Luciano, 311 F.3d 146, 153 (2d Cir. 2002); United States v. Richards, 302 F.3d 58, 66 (2d Cir. 2002); United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001); United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001).
The statute setting forth the punishment applicable to Moody's offense of conviction authorized the court to impose a sentence of life imprisonment, irrespective of any judicial fact finding. 21 U.S.C. § 841(b)(1)(A)(1999). Moody's sentence of 540 months, therefore, fell within the "prescribed statutory maximum for the offense of conviction," Thomas, 274 F.3d at 664, and noApprendi violation occurred. Accordingly, it would have been meritless for Moody's attorney to lodge an objection based onApprendi either at sentencing or on appeal.
"Counsel's failure to make a meritless argument does not amount to ineffective assistance." Muniz v. United States, 360 F.Supp.2d 574, 580 (S.D.N.Y. 2005) (quoting United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999)). Because Moody's sentence was consistent with Apprendi and the governing Second Circuit law interpreting that case, his attorney was not ineffective for failing to lodge an Apprendi objection at sentencing or appeal.
2. Petitioner's Attorney Argued Effectively Against the Obstruction of Justice Enhancement
Moody asserts that his attorney was ineffective for failing to object to an inconsistency in the PSR relating to a two-point enhancement for obstruction of justice. The PSR was inconsistent, Moody claims, because at one point it set forth that the Probation Department lacked information that Moody obstructed justice, yet at another point it set forth facts, provided by the government, relating to Moody's obstruction of justice. (Pet.'s Mem. of Law dated Oct. 4, 2004 at 3, 10).
Even assuming that the PSR was inconsistent on this point, the attorney's failure to object on the basis of the asserted inconsistency did not fall below an objective standard of reasonableness. In fact, he expressly argued against the obstruction of justice enhancement both at sentencing and on appeal and in both instances asserted legal and factual reasons for why it should not apply. (Tr. dated July 9, 2002 at 24:14-32:18; McFadden, 70 Fed. Appx. at 34). Moreover, he lodged an objection at sentencing to the enhancement for obstruction of justice. (Tr. dated July 9, 2002 at 32:16-18).
Even if petitioner's attorney's failure to object specifically to the PSR were objectively unreasonable, which it was not, Moody has failed to show any resultant prejudice. Moody has proffered no reason why the court's substantive conclusion that the enhancement was appropriate would have been any different if his attorney had objected specifically to the purported inconsistency in the PSR. Nor does he dispute the facts that convinced the court to apply the enhancement, namely, Moody's secreting of a gun from police during a murder investigation. (Id. at 24:20-23; 30:9-25). Accordingly, petitioner's attorney was no ineffective for failing to specifically object to the claimed inconsistency in the PSR.
3. Petitioner's Attorney Was Not Ineffective for Failing to Object to Venue
Moody asserts that the overt acts set forth in the indictment did not occur in the Southern District of New York, and that his attorney was ineffective for failing to raise lack of venue as an issue at trial. In a prosecution for conspiracy pursuant to 21 U.S.C. § 846, the government "bears the burden of proving, by a preponderance of the evidence, that venue exists." United States v. Naranjo, 14 F.3d 145, 146-47 (2d Cir. 1994). Because "venue is proper in any district in which the crime was committed," in a prosecution pursuant to section 846 "venue is proper in any district in which an overt act in furtherance of the conspiracy was committed by any of the coconspirators." Id. (quotingUnited States v. Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987)).
Moody has offered nothing to substantiate his claim that all overt acts took place outside of this district. In addition, the trial record reveals that witnesses testified that the overt acts alleged in the indictment — the purchase of cocaine by Moody's coconspirators — as well as other overt acts, took place in Manhattan, which is within this judicial district. (Indictment No. S19 00 Cr. 671 ¶ 10(a); Tr. dated Sept. 5, 2001 at 101:3-7; 103:4-13; 112:22-114:8; 117:8-120:6; 161:14-175:12; Tr. dated Sept. 10, 2001 at 666:16-683:10). This testimony was sufficient to establish venue in the Southern District by a preponderance of the evidence, and Moody proffers nothing to controvert this evidence. Accordingly, the record demonstrates that any objection to venue would have been meritless, and the lack of objection was not prejudicial. Moody's attorney, therefore, was not ineffective for failing to object to venue at trial or on appeal.
B. Moody's Sentence Was Constitutional
Moody next claims that his sentence was unconstitutional pursuant to Apprendi and Booker because it was calculated on the basis of facts, such as drug quantity, not submitted to a jury and proven beyond a reasonable doubt. This claim fails for three reasons: Moody has waived his Apprendi objection; even if he had preserved it, it lacks merit; and Booker does not apply retroactively.
Moody failed to challenge his sentence on constitutional grounds either at sentencing or on appeal, a failure that results in waiver of the claim unless he can show either cause and prejudice for the omission, or that he is likely innocent. See Bousley, 523 U.S. at 623, 118 S.Ct. 1604, 140 L.Ed.2d 828;Munoz, 143 F.3d at 637. Moody does not assert his innocence. Instead, he contends that his counsel was ineffective, which, if true, would constitute cause. However, as set forth above, the attorney did not render ineffective assistance of counsel during either sentencing or appeal with respect to Apprendi issues. Moody asserts no other reason for failing to raise this constitutional objection previously, and accordingly he has waived his claim. See Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640; United States v. Pipitone, 67 F.3d 34 (2d Cir. 1995).
Even if he had preserved the issue, however, the claim would fail. As set forth above, Moody's sentence was consistent withApprendi, which was the governing law at the time his sentence was imposed and his appeal was decided. Moreover, to the extent that Moody claims his sentence is invalid in light of Booker — which was decided more than one year after his conviction became final — that case does not apply retroactively. Guzman v. United States, 404 F.3d 139 (2d Cir. 2005). Therefore, the Court concludes that Moody's sentence was proper.
C. Any Inconsistency in the PSR Did Not Affect the Sentencing Process
Last, Moody asserts that the alleged inconsistency in the PSR regarding the obstruction of justice enhancement "render[ed] the sentencing process unreliable. . . ." (Pet.'s Mem. of Law at 3). Again, his claim fails for two reasons: he has waived it and it lacks merit.
Moody did not assert this contention on appeal and his attorney — as set forth above — was not ineffective in failing to raise it. Since Moody offers no other reason for failing to raise this claim on appeal, he has waived it for the purposes of this petition.
However, even if he had preserved it, he fails to explain how the alleged inconsistency compromised the sentencing process and he fails to cite any case law to substantiate his conclusory assertion. The sentencing court closely considered the applicability of the obstruction of justice enhancement and queried both the government and Moody's counsel on this issue. (Tr. dated July 9, 2002 at 24:14-32:18). Indeed, Judge Martin held two hearings because he did not "want to do anything with less than a full record. . . ." (Tr. of Hr'g dated July 9, 2002 at 41:23). Accordingly, considering the arguments against the enhancement that Moody's counsel advanced as well as the sentencing court's full consideration of each of the issues before it, the sentencing process was reliable.
Conclusion
The Court denies Moody's petition because Moody's counsel was not ineffective; petitioner waived his Apprendi objection and even if he had not waived the objection, it is meritless;Booker does not apply retroactively on collateral review; he waived his claim regarding the purported contradiction in the PSR and in any event, the alleged contradiction did not undermine the sentencing process.
In addition, because Moody has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Soto v. United States, 185 F.3d 48, 51-53 (2d Cir. 1997). Finally, pursuant to 28 U.S.C. 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith.See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
SO ORDERED.