Opinion
Case No. 97-40005-01-SAC, Case No. 00-3477-SAC
October 24, 2002.
MEMORANDUM AND ORDER
This case is before the court on defendant's motion to vacate or correct sentence pursuant to 28 U.S.C. § 2255. After a jury trial, defendant was found guilty of conspiracy to distribute in excess of 50 grams of cocaine base, commonly known as crack cocaine, and/or cocaine hydrochloride, commonly known as powder cocaine, in violation of 21 U.S.C. § 846, with reference to 21 U.S.C. § 841(a)(1). Defendant, having been sentenced to 360 months imprisonment, unsuccessfully appealed his conviction to the Tenth Circuit, see United States v. Battle, 188 F.3d 519 (10th Cir. Aug. 6, 1999) (Table), cert. denied, 528 U.S. 1056 (1999), and now brings this collateral action.
Defendant complains that he received ineffective assistance of counsel at trial, during sentencing, and on appeal, and that the judge, rather than the jury, improperly determined the amount of controlled substances involved in the charges.
Defendant was represented by two counsel who appear regularly before this court.
• Legal Standards
In determining whether a habeas petitioner's trial counsel acted ineffectively, we apply the general ineffective assistance of counsel standard identified by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland). Under Strickland, a petitioner must satisfy a two-part test in order to prevail on an ineffective assistance of counsel claim. First, he must demonstrate that his attorney's "performance was deficient" and "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. In applying this test, we give considerable deference to an attorney's strategic decisions and "recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Second, a habeas petitioner must show that the trial counsel's deficient performance prejudiced him, which requires a showing that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Arden Brett Bullock v. Scott Carver, 297 F.3d 1036 (10th Cir. 2002).
• Substantive Claims
º Ineffective Assistance of Counsel
Failure to request dismissal of indictment
Defendant first alleges that his counsel were constitutionally ineffective in failing to move to dismiss the indictment for prosecutorial misconduct upon learning that perjured testimony implicating defendant in a kidnaping had been presented to the grand jury. The government counters that the testimony was erroneous, but not perjurious, thus no sanction is necessary.
It is undisputed that Investigator Life testified to the grand jury that an unidentified male by the name of "Black" was involved in a kidnaping on a certain date. "Black" was one of the aliases used by defendant, and was a name which helped identify defendant as a participant in the drug conspiracy. See Battle, 188 F.3d 519 at *3. Subsequent investigation by the court's probation officer confirmed that defendant was incarcerated on the date of the kidnaping, and thus could not have participated in it. See Dk. 258, Exh. A, A-4. Defendant further asserts that because he was not the "Black" involved in the kidnaping, he was not the "Black" involved in the conspiracy, and thus the grand jury indicted someone other than him. (Dk. 258, attached affidavit, ¶ 14, 19).
The Supreme Court set the standard for dismissal of indictments in Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). That case held that a defendant is entitled to dismissal of an indictment only where actual prejudice is established. Such prejudice must amount either to proof that the grand jury's decision to indict was substantially influenced, or that there is "grave doubt" that the decision to indict was substantially influenced, by testimony which was inappropriately before it. Bank of Nova Scotia, 487 U.S. at 256.
Dismissal of an indictment after a conviction is an extreme remedy, "designed more to deter prosecutorial misconduct before the grand jury than to protect a particular defendant's rights." United States v. Yost, 24 F.3d 99, 102 (10th Cir. 1994). Because dismissal of an indictment following a conviction is such an extreme remedy, the court will only do so in rare circumstances where prosecutorial misconduct is flagrant or vindictive. Id. Where a prosecutor's failure to correct an agent's testimony is, at worst, an oversight, the extraordinary remedy of dismissal of the indictment is not called for. United States v. Page, 808 F.2d 723, 727 (10th Cir. 1987).
Although Investigator Life's testimony in respect to defendant's involvement in the kidnaping was evidently erroneous, no evidence suggests that its falsity was intentional or that the prosecutor knew it was false. Defendant's assertion that the prosecutor possessed defendant's rap sheet at the time of the grand jury testimony is unsupported by the record. Instead, it appears that the prosecutor did not learn until a revised PSR was issued that defendant had been incarcerated at the time of the kidnaping. "False testimony given as a result of confusion, mistake or faulty memory does not justify dismissal of an indictment. (Citations omitted)." United States v. Foote, 188 F. Supp.2d 1303 (D.Kan. 2002).
Moreover, defendant has not shown that the investigator's statement about a kidnaping, even if false, was material to the grand jury's decision to return an indictment on drug conspiracy charges. The Tenth Circuit has allowed an indictment to stand even in cases of perjured testimony before a grand jury if independent evidence exists to support the charges, on the assumption the grand jury would have returned the indictment without the perjurious testimony. United States v. Pino, 708 F.2d 523, 530 (10th Cir. 1983).
Although the date of the kidnaping is the same date the drug conspiracy is alleged to have begun, defendant has not shown that probable cause for the charged offense of conspiracy was dependent upon his participation in the kidnaping. The prosecutor's behavior did not significantly infringe on the grand jury's ability to exercise independent judgment in returning an indictment for a conspiracy involving controlled substances. See United States v. Washington, 162 F.3d 1175, 1998 WL 777072 (10th Cir. Nov 04, 1998) (Table). Additionally, defendant has not shown any direct effect on the trial testimony from the conduct in the grand jury proceedings. Defendant has thus failed to establish actual prejudice.
It appears that there was at most some overstatement by Investigator Life before the grand jury or simply a mistake made by the complainant in reporting to the police, rather than any serious misconduct by either the investigator or the prosecutor. Under these circumstances, any motion to dismiss the indictment by defendant's counsel would have been denied, thus no ineffectiveness has been shown.
Failure to call witnesses Pless and Isham
Defendant next alleges his counsel were constitutionally ineffective in failing to interview and call two witnesses disclosed on the government's preliminary witness list: Sammy Pless and Mary Isham. These two were allegedly the victims of the kidnaping in which defendant was erroneously implicated during grand jury testimony.
The government did not call either of these persons as witnesses at the trial, and defense counsel declined to subpoena them. Defendant contends that in failing to do so, counsel violated their obligation to make a reasonable investigation.
Because [the adversarial] testing process generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies, [the Supreme Court has] noted that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quoting Strickland, 466 U.S. at 691). Thus there is no absolute obligation to investigate every defense strategy, and counsel can fulfill their duty by making a reasonable decision that makes a particular investigation unnecessary.
Defendant admits that he "cannot predict what these individuals would have said had they testified," (Dk. 258, p. 7-8), but believes they could have proved that he was not involved in the kidnaping. Defendant fails to show, however, that any reference was made at trial to the kidnaping. Thus introduction at trial of the testimony of these two witnesses on that issue would have served no purpose.
Defendant additionally contends that the testimony of these two witnesses would have "bolstered the theory of defense." As the court understands this argument, defendant asserts that the testimony would have supported his claims that there were multiple conspiracies, that defendant was not involved in the conspiracy on the date of the kidnaping, and that defendant was not the person referred to as "Black," during the kidnaping. Each of these relates to the kidnaping, which was not raised at trial. In light of the other trial testimony establishing defendant's involvement in the drug conspiracy and his use of the name "Black," see record cited at Dk. 265, p. 4-5), the desired testimony by Pless or Isham would have had no effect upon the outcome of the case. Not calling Pless and Isham as witnesses was a reasonable strategic choice, which does not render counsels' representation ineffective.
Failure to use prior inconsistent statement in impeachment
Defendant next complains of counsels' failure to impeach Investigator Life at trial with his statement to the grand jury about defendant's involvement in the kidnaping. Defendant asserts that the purpose of so doing would be to bolster the defense theory of a multiple conspiracy. The government states, and the defendant does not dispute, that it "presented no witnesses at trial that the defendant was part of a kidnaping." (Dk. 265, § C).
Investigator Life was asked no questions about the kidnaping on direct examination at trial. Nor has his statement to the grand jury about defendant's involvement in the kidnaping been shown to have been inconsistent with anything he testified to at trial. Therefore, no means for impeachment by use of Life's prior statement to the grand jury was permissible under Fed.R.Evid. 801(d)(1).
Assuming, arguendo, that it was possible under the rules of evidence to impeach Investigator Life by use of his grand jury testimony, defendant has failed to show that it would have been prudent to do so. Showing the error of Life's testimony that defendant was involved in the kidnaping would necessarily have entailed proof that defendant was incarcerated at the time for another drug offense. Counsels' decision not to venture into those waters was a strategic one that many reasonable counsel would also make. The court finds that counsel for defendant acted in an objectively reasonable manner in not impeaching Investigator Life on this issue, and in not addressing the kidnaping issue at trial.
Failure to object to 404(b) evidence
Defendant next alleges constitutional error in his counsels' failure to object at trial to the admission of certain 404(b) evidence and to request a limiting instruction. Specifically, defendant complains of a 1992 incident involving Mike Fears, and a 1993 incident involving Anthony Timmons.
The issue regarding admission of the evidence in question was squarely raised at and before trial, and the court ruled that such evidence was intrinsic to the charged offense, and thus not governed by Rule 404(b). Defendant believes that at some unspecified point thereafter, the evidence became extrinsic and thus subject to the limitations of Rule 404(b). See Dk. 268, p. 8. Defendant contends that there was no evidence that the two previous drug transactions stemmed from the same conspiratorial agreement as the acts charged, thus the evidence of those transactions was extrinsic.
Even assuming, arguendo, that the evidence was of unrelated events, or was otherwise 404(b) evidence, no prejudice has been shown. Any concern that the jury may have based its conviction upon defendant's unrelated criminal acts is adequately addressed by Instruction No. 6, which the court gave the jury. It states:
The defendants are on trial only for the acts alleged in the indictment. They are not on trial for any other acts or conduct. In determining whether the defendants are guilty or innocent, you are therefore to consider only whether the defendants have or have not committed the acts charged in this indictment. Even if you are of the opinion that a particular defendant is guilty of some offense not charged in this indictment, you must find such defendant not guilty if the evidence does not show beyond a reasonable doubt that he has committed the specific acts charged in this indictment.
The jury is presumed to have followed the instructions given by the judge. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001).
This instruction is sufficient to preclude or cure any prejudice that otherwise may have resulted from introduction of any evidence relating to defendant's uncharged criminal acts. Defendant's counsel have not been shown to have acted unreasonably in any acts or failures to act regarding such evidence.
Insufficient challenge to juror bias or contact
Defendant next contends that counsels' failure to request an evidentiary hearing to investigate juror bias constitutes objectively unreasonable performance. See Remmer v. United States, 350 U.S. 377 (1956) (establishing an evidentiary hearing procedure to determine the issue of juror prejudice). It is uncontested that during the trial, an AUSA who was not trying the case had contact with one of the jurors in the case who was a friend of hers. This same juror failed to reveal during voir dire that she knew anyone in the U.S. Attorney's office, and failed to bring the issue to the court's attention even after her contact with the AUSA, as noted below.
The facts are undisputed. AUSA Randy Hendershot, who was trying the case, notified the court that he had received an e-mail from another attorney in his office, AUSA Landis, regarding her contact with a juror. See Dk. 258, Exh. A, D-1. The court was so notified at a bench conference out of the hearing of the jury. The e-mail, which was read into the record, states that AUSA Landis knows juror Arnoldy, that Arnoldy is a "good friend" of AUSA Landis's sister, and that juror Arnoldy was in the home of AUSA Landis a couple of months prior, but they rarely see each other.
During the course of the trial, juror Arnoldy saw AUSA Landis in the hall, hugged her and asked her where she worked. AUSA Landis replied she worked in the U.S. attorney's office, and asked what Arnoldy was doing in the building. When Arnoldy replied that she was on the jury upstairs, AUSA Landis asked if it was Randy's jury and she said "yes." AUSA Landis then told Arnoldy, "we could not say anything about the trial and she agreed." The two then had "a brief discussion, probably less than a minute," about a social function which AUSA Landis did not attend, then the conversation and contact terminated. Dk. 258, Exh. A, D-1.
The court, after reading the e-mail verbatim to counsel, immediately provided it to defendant's counsel. The court then asked for any comments by counsel, and defense counsel Trubey replied: "It doesn't appear to be anything that would impact the trial, your Honor." Dk. 258, Exh. A, D-1. Other counsel remained silent. The court then concluded "well, the court agrees with you. I think that — that — tell her we're glad she brought it to our attention, it's been considered by the court, it was considered by counsel, and we shall proceed." Id.
The Tenth Circuit has repeatedly used and approved two different legal standards by which to resolve the issue of jury exposure to extrinsic material. Although the Tenth Circuit has recognized the "bifurcation" of its holdings, see Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1241 (10th Cir. 2000), it has neither resolved nor attempted to justify them. One line of cases holds that jury exposure to extrinsic material warrants a new trial if there is the "slightest possibility" the exposure affected the verdict. Smith, 214 F.3d at 1241, citing Tenth Circuit cases. The other line of cases holds that jury exposure to extraneous information creates a "presumption of prejudice" which may be rebutted by showing the exposure was harmless. Id., citing other Tenth Circuit cases.
The critical distinction between the two approaches, of course, may be found in the placement of the initial burden of proof. Under the "slightest possibility" approach the burden — however light of showing that harm occurred rests on the moving party. In contrast, the presumption of prejudice approach relieves the moving party of any burden and forces the nonmovant to prove any exposure was harmless.
Smith, 214 F.3d at 1241-42.
"The trial court's decision as to how to proceed in response to allegations of juror misconduct or bias will not be reversed except for abuse of discretion. (citations omitted)." United States v. Day, 830 F.2d 1099, 1106 (10th Cir. 1987). Not every allegation of extraneous juror contact requires an evidentiary hearing. See United States v. Rigsby, 45 F.3d 120, 124 (6th Cir. 1995). A trial court can rely upon its self-evaluations of alleged biased jurors in determining actual juror bias. Smith v. Phillips, 455 U.S. 209, 217 n. 7 (1982), cert. denied, 465 U.S. 1027 (1984); Day, 830 F.2d 1099, 1105 (10th Cir. 1987).
This court in the case at bar relied upon its self-evaluation of the relationship between the juror and the AUSA and the effect of AUSA Landis's comments on the juror, as well as upon the evaluation of counsel Trubey that no bias to the trial proceedings occurred. The e-mail from AUSA Landis, read into the record at a bench conference, was complete in its detail about the underlying relationship between the juror and the AUSA, and trustworthy in its content of their contact during trial. AUSA Landis is known to this court and is credible. The e-mail, which raised the specter of prejudice, also adequately dispelled any presumption of prejudice. To have conducted an evidentiary hearing in which to question the juror would have been a futile exercise, thus even had defendant's counsel requested a Remmer hearing or moved for a mistrial, the court would have denied either request.
This result is unchanged by the fact that the same juror failed to reveal during voir dire or during trial that she knew someone in the U.S. Attorney's office. The e-mail reveals the juror's lack of knowledge that Landis was an AUSA or worked in the building. The omission fails to show that Arnoldy had some hidden agenda in mind or deliberately concealed her knowledge. Further, Arnoldy did admit during voir dire that she was friends with someone in the Topeka Police Department. (Dk. 258, Exh. A, D-2, stating "friend TPD"). If she had some hidden agenda in mind either to convict the defendant, or to conceal her friendship with law enforcement officers or prosecutors, she likely would not have revealed that friendship.
Defendant has not shown the "slightest possibility" that the exposure affected the verdict, and the government has shown that any exposure was harmless. Regardless of who has the burden of proof on this issue, the court finds no ineffective assistance of counsel in the manner in which the issue of potential juror bias was handled by defendant's counsel.
Failure to challenge drug amounts used in sentencing
Defendant next points to counsels' failure to challenge the drug amount of over 50 grams used to determine defendant's relevant conduct for purposes of sentencing, which triggered application of § 841(b)(1)(A) and subjected defendant to a sentence exceeding the 20 year maximum that he contends would otherwise have been imposed pursuant to § 841(b)(1)(C).
Defendant recognizes that "distinct drug quantities are aggregated under § 841(b) when they are encompassed within a single violation of § 841(a), as in conspiracy cases." Defendant appears to argue that the only amounts proved at trial to be aggregated were 44.44 grams of suspected cocaine base, plus 4.26 grams in controlled buys, totaling 48.7 grams. The government disputes this assertion, claiming that "there is no doubt that the proof adduced at trial indicated an amount in excess of fifty grams." (Dk. 265.)
Regardless of the amount of drugs shown at trial, defendant has failed to show that his counsel were constitutionally deficient in permitting his sentencing to proceed based upon an amount which, considering all relevant conduct, was greater than 50 grams. Defendant concedes that his counsel did make several objections to the PSR's finding as to drug amounts at sentencing. (Dk. 258, p. 26; See Id., Exh. A., G-1.) This argument is nothing more than an attempt to dress what should have been a sufficiency of the evidence argument on direct appeal in the clothing of an ineffective assistance of counsel argument.
Failure to challenge at sentencing the type of cocaine
Defendant asserts that his counsel were ineffective "for failing to put the government to its burden of proving by a preponderance of the evidence that the substance was crack cocaine." (Dk. 258, p. 21).
The government was required to prove at trial that the substance involved in the charged offense was crack cocaine. This is shown by Instruction No. 10, which the court gave to the jury at defendant's trial. This instruction explained to the jury the difference between crack cocaine and powder cocaine, and required the jury to find "that a measurable amount of cocaine base (crack cocaine) and/or hydrochloride cocaine (powder cocaine) was in fact the object of the conspiracy to distribute charged in the indictment." (Dk. 258, Exh. A., I-1).
Additionally, the verdict form asked the jury not only to find defendant's guilt or innocence on the conspiracy charge, but also to find the type of controlled substance which was the object of the conspiracy. It stated: "Which of the following controlled substances do you find were the object of the conspiracy charged in count 1 of the indictment? It then listed options. In response to this special question, the jury stated "cocaine base, crack cocaine." (Dk. 258, Exh. A., H-2).
These and other documents included in the record reflect that defendant's counsel did in fact put the government to its burden of proof beyond a reasonable doubt at trial that the substance involved was crack cocaine.
Although defendant casts blame upon his counsel for not challenging this finding again at his sentencing, the record shows that this issue was addressed at length at defendant's sentencing, and that the court relied upon the jury's finding that the controlled substance was crack cocaine. (Dk. 258, Exh. A., F-2).
The crux of defendant's complaint is that counsel failed to bring to the court's attention at time of sentencing the testimony of the government's chemist, Jim Schieferecke . Defendant contends that this witness created "some doubt" whether the substance in question was actually crack cocaine. The court disagrees. The court heard Mr. Schieferecke's testimony at trial, and was aware of it at the time of sentencing. Any further objection by defendant's counsel would have been futile.
To the extent defendant may be attempting to challenge this court's adoption of the PSR's findings in the absence of proof at the sentencing hearing, that claim is procedurally barred. United States v. Green, 33 Fed. Appx. 923, 925, 2002 WL 373980 (10th Cir. Mar 11, 2002). Defendant has not asserted any cause or prejudice to excuse his failure to raise that issue on direct appeal, see United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995), and the court knows of none.
No challenge on appeal to sufficiency of evidence of crack cocaine
Defendant next contends that his counsel were ineffective in failing to argue on appeal the insufficiency of the evidence that the cocaine was crack, instead of powder. This claim focuses on counsels' failure to bring to the Tenth Circuit's attention Jim Schiefereckes' testimony relating to the process used in producing the form of cocaine base found in the exhibits he analyzed. (Dk. 258, p. 31).
"An attorney's trial and appeal strategies do not usually rise to the level of ineffective assistance of counsel. See Strickland, 466 U.S. at 690-91." United States v. Hutching, 182 F.3d 934, 1999 WL 258010, *3 (10th Cir. April 28, 1999) (Table). Defendant must establish that appellate counsel was "objectively unreasonable" in failing to assert the claim on direct appeal, and that there is a reasonable probability that, but for counsels' failure to raise the issue, he would have prevailed in challenging his conviction on direct appeal. Hain v. Gibson, 287 F.3d 1224, 1231 (10th Cir. 2002), citing Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001). In order to properly address these issues, the court must "`look to the merits of the omitted issue.'" Id. (quoting Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999)). "If the omitted issue[s are] without merit, counsel's failure to raise [them] `does not constitute constitutionally ineffective assistance of counsel.'" United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (quoting United States v. Dixon, 1 F.3d 1080, 1084 (10th Cir. 1993)).
Defendant has failed to establish that appellate counsel was "objectively unreasonable" in failing to assert this claim on direct appeal, and that there is a reasonable probability that, but for counsels' failure to raise the issue, he would have prevailed in challenging his conviction on direct appeal.
Although the witness's testimony, viewed in isolation, may or may not have raised "some doubt" about the type of cocaine at issue, other evidence supports the jury's finding, including multiple statements made by defendant's associates in the conspiracy that they had bought "crack cocaine" from the defendant and/or had sold it for him. Defendant seeks to discount all evidence that a substance was crack cocaine if such evidence was based solely upon a witnesses' visual assessment of the properties of the substance, rather than upon a chemist's testing of the chemical make-up of that substance. The rules of evidence are not so narrow, however.
Given the sufficiency of evidence to support the jury's finding that the cocaine was in fact crack cocaine, and the scope of review of this issue on appeal, defendant's counsel did not render ineffective assistance in not directly appealing this issue. See Cook, 45 F.3d at 393 (holding that failure to raise meritless issue does not constitute ineffective assistance of counsel).
To the extent defendant attempts to contend that the evidence presented at trial was insufficient to support the jury's express finding that the substance was crack cocaine and not powder cocaine, this argument is one for direct appeal, and is not properly addressed on this collateral review. See Davis v. United States, 392 F.2d 291, 292 (10th Cir.), cert. denied, 393 U.S. 986 (1968); Carrillo v. United States, 332 F.2d 202 (10th Cir. 1964).
No challenge on direct appeal to amount of drugs
Defendant additionally asserts that his counsel were ineffective for failing to challenge on appeal the amount of drugs attributable to him as relevant conduct at his sentencing. Defendant asserts that the court relied upon incorrect estimates of drug amounts. Defendant admits that his counsel raised this issue at his sentencing, and the court found against him.
The court has reviewed the citations to the record in defendant's brief, but finds that they form no basis for an ineffective assistance of counsel claim. The government need only provide evidence of relevant conduct that satisfies a preponderance of the evidence standard. See United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994). The record in this case shows that the government satisfied this burden. See United States v. Moore, 130 F.3d 1414, 1419 (10th Cir. 1997) (holding that uncharged amounts of drugs may be included as relevant conduct even if the defendant never actually possessed or distributed the drugs). Because the record shows that these amounts should be considered relevant conduct for purposes of calculating defendant's sentence, defendant's counsel did not render ineffective assistance when omitting the issue on appeal. See Cook, 45 F.3d at 393 (holding that failure to raise meritless issue does not constitute ineffective assistance of counsel).
Failure to challenge object of the conspiracy
Next defendant faults his counsel for not having raised the issue that the object of any conspiracy involving the defendant did not deal with crack cocaine, but with another form of cocaine base. This assertion relies upon the testimony of chemist Jim Schiefereckes, which the court has addressed above.
The record shows that the issue of whether the controlled substance was or was not crack cocaine was repeatedly raised by defendant's counsel. Although the argument may not have been phrased in terms of attacking the "object of the conspiracy," the same issue was nonetheless clearly presented to the jury in arguments, through testimony, and on the special verdict form, as well as at sentencing. Defendant's assertion that his counsel were obligated to do more to meet the standard of objective reasonableness is unpersuasive. II. Apprendi issue
Defendant next alleges error in that the judge, rather than the jury, determined the amount of controlled substances involved in the charges of which he was convicted. Defendant relies upon Apprendi v. New Jersey, 530 U.S. 466 (2000), which held: "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt." Before Apprendi, the type and quantity of drugs involved in a crime was a "sentencing factor" to be determined by a judge by a preponderance of the evidence standard. See United States v. Jones, 194 F.3d 1178, 1183-84 (10th Cir. 1999).
Because Apprendi was decided after defendant's conviction became final, the court must examine whether Apprendi applies retroactively to this case on initial collateral review. The Tenth Circuit has recently ruled that it does not. In United States v. Mora, 293 F.3d 1213 (10th Cir. 2002), cert. denied, ___ S.Ct. ___, 2002 WL 31013013 (U.S. Oct 15, 2002) (No. 02-6125), the Tenth Circuit held: " Apprendi is not a watershed decision and hence is not retroactively applicable to initial habeas petitions." Thus defendant is barred from raising his Apprendi claims in this § 2255 motion. See United States v. Wiseman, ___ F.3d ___, 2002 WL 1584302 (10th Cir. Jul 18, 2002); United States v. Aguirre, No. 01-3218, 2002 WL 188972 (10th Cir. Feb.7, 2002). Because the court rejects defendant's Apprendi claim on procedural grounds, it need not deal with his claim on the merits. See United States v. Ashley, 41 Fed. Appx. 240, 2002 WL 734764, at *3 fn. 3 (10th Cir. Apr.26, 2002).
IT IS THEREFORE ORDERED that defendant's motion pursuant to 28 U.S.C. § 2255 is denied.