Opinion
CIVIL NO. 06-11143-PBS.
August 22, 2007
MEMORANDUM AND ORDER
Pro se petitioner Jeffrey T. Pina brings this challenge under 28 U.S.C. § 2255 to his conviction for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1); possession of cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924. He advances grounds for relief based on ineffective assistance of counsel and cumulative errors of judge and jury that deprived him of a fair trial. After review of the briefs, the petition is DENIED.
I. BACKGROUND
On January 11, 2002, Brockton Police detectives went to the first floor apartment of 37 Foster Street in Brockton, Massachusetts to execute a search warrant. (Tr. 5/5/03: 84, 120.) Parked in the driveway of the house was a car registered to Pina. (Tr. 5/6/03: 7-9.) At trial, the parties stipulated that Annette Garcia owned the apartment.Detective Thomas Keating knocked and announced, "Brockton Police, search warrant." (Tr. 5/5/03: 86.) After a male voice responded, "Who?", Detective Keating again stated "Brockton Police." (Tr. 5/5/03: 86.) Upon not receiving any sort of response for 15-20 seconds, Detective Keating forced open the door and entered the apartment. (Tr. 5/6/03: 10.)
Pina was standing in the kitchen area of the apartment when they entered. (Tr. 5/5/03: 86-88.) No one else was in the apartment. (Tr. 5/5/03: 100; 5/6/03: 13.) Pina was secured and searched, and found to be in possession of $553 in cash. (Tr. 5/5/03: 87; 5/6/03:20.) He was read his Miranda rights and provided with a copy of the search warrant. (Tr. 5/5/03: 76.) A bag of crack cocaine later found to weigh 13.93 grams was also found in the kitchen. (Tr. 5/6/03: 125-26; 5/5/03: 125-26.)
There was a discrepancy between the accounts of Detectives McDermott and O'Connell as to whether the money was found on Pina's person or rather next to him.
Upon searching one of the two bedrooms, Detective Christopher McDermott found a ceramic plate with white residue and a razorblade on it. (Tr. 5/5/03: 89.) Under the bed, he found a box of Glad sandwich bags. (Tr. 5/5/03: 100.) Detective Paul Bonanca found two scales on top of the bed; one was a manual, hand-held scale and the other was a digital scale with white residue on it. (Tr. 5/5/03: 100.) He found a .25 caliber semi-automatic pistol loaded with a magazine containing six rounds of .25 caliber ammunition in the top drawer of the bureau. (Tr. 5/5/03: 104.) The top drawer also contained both men's and women's clothing as well as a piece of mail addressed to Pina at the apartment dated September 14, 2001. (Tr. 5/5/03: 107.)
On top of the bureau, Detective Bonanca found additional paperwork of Pina's, including a document dated January 2, 2001. (Tr. 5/5/03: 112, 115.) A Kleenex box found on the same bureau contained three wads of cash, each labeled "1,000" and consisting of $1,000. (Tr. 5/6/03: 13.)
In the closet, the right side of which contained only men's clothing, Detective Costello found two bags containing crack cocaine in a pair of men's pants. (Tr. 5/5/03: 122.) In one bag, there were loose rocks of crack cocaine; the other held thirty-one individually packaged bags of crack cocaine. (Tr. 5/5/03: 123, Tr. 5/6/03: 31, 119, 122.) The contents of the bags were later tested and were determined to weigh 44.18 grams and 7.23 grams, respectively. (Tr. 5/6/03: 123-25.) Detective Domenic Persampierri found eight loose rounds of .25 caliber ammunition inside a man's leather jacket that was also in the closet. (Tr. 5/7/03: 5.)
At trial, the government offered expert testimony from Sergeant Kevin O'Connell regarding the ways in which crack cocaine is typically packaged and priced for distribution, the pricing designations of the drugs found in the Foster Street apartment, and the significance of the scales and the packaged money. (Tr. 5/6/03: 61-75.) Sergeant O'Connell opined that the items found by the police at the apartment were consistent with drug distribution rather than personal possession. (Tr. 5/6/03: 74-75.)
At trial, stipulations made by the parties included that Pina had previously been convicted of a crime punishable by a prison term of more than one year. Pina was convicted by a jury and sentenced to 211 months of imprisonment. Pina's judgment of conviction became final on July 5, 2005 when the First Circuit affirmed the judgment. His habeas petition was timely filed on June 26, 2006.
II. DISCUSSION
A. Standard of Review
28 U.S.C. § 2255 provides for post-conviction relief "if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack" such that the claim presents "`exceptional circumstances' that make the need for redress evident." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998) (quoting Hill v. United States, 368 U.S. 424, 426-27 (1962)).
B. Ineffective Assistance of Counsel Standard
The Supreme Court created a two-pronged test that must be met to show ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a petitioner must show that "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." Id. at 686. Review of counsel should be "highly deferential," and to meet this performance prong threshold, a petitioner must show that "given the facts known at the time, counsel's `choice was so patently unreasonable that no competent attorney would have made it.'" Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (quoting Strickland, 466 U.S. at 689). Strategic choices of counsel are not grounds for argument that the petitioner received ineffective assistance of counsel, and "a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669. The second prong requires "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."Id. at 694. When there is a claim of ineffective counsel, "the defendant must show that counsel's errors resulted in actual and substantial disadvantage to the course of his defense." Id. at 682 (internal citations omitted).
C. Petitioner's Allegations
1. Failure to Request Judgment of Acquittal at Close of Government's Evidence
Petitioner first argues that counsel was ineffective because he failed to request a judgment of acquittal at the close of the government's case with respect to the charge of possession of a firearm in furtherance of a drug trafficking crime and failed to raise the sufficiency of the evidence supporting the claim on appeal. This claim fails because his attorney did, in fact, move for an acquittal at the close of the government's evidence. Counsel, pursuant to Fed.R. Cr. P. 29, stated, "I'm going to move for a judgment of acquittal on each of the three counts. . . ." (Tr. 5/7/03: 11). The petitioner's argument regarding the failure to address the issue of sufficiency of the evidence on appeal fails because his counsel did raise it and it was rejected. (See Pina Appeal Brief Argument IV, p. 42-45;United States v. Pina, 138 Fed. Appx. 336, 336 n. 1 (1st Cir. 2005) (A separate issue was addressed by the First Circuit, but "[a]ll other issues are plainly meritless and, therefore, are affirmed without discussion.").
2. Faulty Jury Instruction
Second, petitioner argues that the instruction regarding the "in furtherance of" element of 18 U.S.C. 924(c) was erroneous because the court did not state that the nexus between the drugs and the weapon must be "specific and direct." (Pl.'s Mem. at 7). Petitioner relies on United States v. Felton, 417 F.3d 97, 105 (1st Cir. 2005), which involved an instruction that required the government to prove that the firearm had a "specific and direct connection" to the commission of the crime. However, the First Circuit did not hold that the exact phrase "specific and direct" must appear in the jury instructions. In fact, the court avoided determining "[w]hether the `specific and direct connection' language is a perfect gloss" on the statutory requirement. Id. at 107. The court explained that "in most situations, a judge who charges in the terms of the statute — the `in furtherance of' language — has substantial latitude as to whether and how to elaborate." Id. at 106. Here, the instructions contained language sufficient for a proper instruction:
Pina did not frame this issue specifically in terms of ineffective assistance of counsel.
To possess a firearm in furtherance of a crime means to possess it with the intent to further advance or help forward the drug-trafficking. Therefore, the government must prove more than the mere presence of the gun at the scene of the drugs and more than mere possession of the gun.
(Tr. 5/7/03: 100-01.) See Eighth Circuit Model Criminal Jury Instructions § 6.18.924C (2007) ("The phrase "possessed in furtherance of" means the firearm must have some purpose or effect with respect to [drug trafficking]; its presence or involvement cannot be the result of accident or coincidence."). Petitioner has not demonstrated that the failure to object was ineffective.
3. Failure to Cross-Examine Government's Expert Chemist on Allegedly Conflicting Reports
Petitioner argues that the failure of counsel to cross-examine the government's expert chemist on allegedly conflicting drug certificates amounts to ineffective assistance. He asserts that the drug report from March 15, 2002 identified a substance seized from his home as being cocaine while the report from July 2, 2002 identified the same substance as cocaine base (crack).
The first drug certificate identifies the substance in very generic, broad terms. It states that the analysis performed by Saunders resulted in a positive identification for "[c]ocaine, a derivative of Coca leaves, as defined in Chapter 94 C, Controlled Substance Act, Section 31, Class B." (Ex. 9 and 10.) The second certificate repeats this exact language and then identifies the substance with increased particularity as "cocaine base." (Ex. 12.)
Ms. Della Saunders, the chemist who performed the drug analyses, testified at trial about the methods of testing the samples. (Tr. 5/6/03: 122.) When initially examining the samples, she used a spot test. At the re-test of the sample in July, Saunders performed an infrared test that distinguished between cocaine base (crack) and cocaine powder, with the result that the substance was in fact cocaine base. (Ex. 10; Tr. 5/6/03: 118; Tr. 5/6/03: 121-22.) The government had given a summary of evidence prior to trial explaining that Ms. Saunders did not initially distinguish the substances as cocaine base because it was not requested. In light of this evidence, even if counsel had cross-examined the chemist on the discrepancy in the language of the two drug certificates, there is no reasonable probability the result would have been different. 4. Flawed Instruction on 21 U.S.C. § 841 Drug Charge and Insufficient Evidence to Support an Enhanced Penalty for Cocaine Base
Pina also alleges that there was a discrepancy between the two reports because the second certification was only signed by one, rather than two, analysts. This is not a significant difference between the reports.
Petitioner next alleges that the instruction on the 21 U.S.C. § 841 drug charge was fatally flawed because the word "crack" was used in place of the term "cocaine base," implicating his Fifth Amendment rights, and that the evidence at trial was insufficient to support an enhanced penalty for cocaine base. Petitioner argues that "crack" is not referred to in the indictment. Additionally, he argues that he had ineffective assistance of counsel because his attorney failed to raise the issue in an objection during trial or on appeal.
This argument centered on the distinction between "cocaine base" and "crack" or "crack cocaine" fails because there is no discernable difference between "crack" and cocaine base. See, e.g., United States v. Robinson, 144 F.3d 104, 108-09 (1st Cir. 1998) (explaining that cocaine base is the equivalent of crack as they are indistinguishable on a molecular level). Furthermore, petitioner's argument that "crack" is not mentioned in the indictment is simply false; the indictment states that Pina "did knowingly and intentionally possess with intent to distribute, cocaine base, also known as `crack' or `crack cocaine' a Schedule II controlled substance." (Indictment at 2.) Thus, the petitioner's claim that the jury instructions were fatally flawed because they substituted "crack" for "cocaine base" is without merit.
5. Miscellaneous Claims
Petitioner argues that he received ineffective assistance of counsel when his attorney failed (I) to request that the jury be screened for prejudice against felons, (ii) to request a cautionary or no adverse instruction after the parties stipulated to Pina's status as a felon as well as in response to the jury's question, and (iii) to ask the court to limit references to a search warrant. These arguments have no merit. Petitioner also contends that counsel was ineffective when he commented on Pina's prior involvement in drugs during his opening statements. I agree that counsel's comment on Pina's prior involvement with drugs is inexplicable, unnecessary and ineffective. However, given the weight of the evidence of drug trafficking, it was not prejudicial.
ORDER
Petitioner's § 2255 motion to Vacate, Set Aside, or Correct Conviction is DENIED.