Opinion
Case No. 99-3386-DES, 96-40078-01-DES.
December 12, 2000.
MEMORANDUM AND ORDER
This matter is before the court on petitioner's Motion to Vacate, Set Aside, or Correct his Sentence (Doc. 88) brought pursuant to 28 U.S.C. § 2255. Also before the court is petitioner's Motion for an Evidentiary Hearing and Motion for Appointment of Counsel (Doc. 94). Petitioner was sentenced by this court to a 120 month term of imprisonment after a jury found him guilty of possession with intent to distribute in excess of five grams of cocaine base, pursuant to 21 U.S.C. § 841(a)(1). Respondent has filed a Response (Doc. 92) and a Supplemental Response (Doc. 93), and petitioner has filed a Traverse (Doc. 95). Having examined the record, the court enters the following findings and order.
I. FACTUAL BACKGROUND
On November 20, 1996, a grand jury returned a one count indictment charging petitioner with possession with intent to distribute a controlled substance. On November 22, 1996, federal public defender, Ms. Marilyn Trubey, was assigned to represent petitioner. Thereafter, on February 25, 1997, petitioner filed a motion to suppress evidence based on an allegedly defective search warrant. In addition, the motion argued for suppression because the officers serving the warrant failed to "knock and announce" their intention. On March 3, 1997, this court denied petitioner's motion during a hearing on petitioner's suppression and other peripheral motions. The case went to trial on August 18, 1997, and the jury returned a guilty verdict the following day. On August 26, 1997, petitioner requested a judgment of acquittal, or, in the alternative, a new trial. This court issued a memorandum and order denying petitioner's request on October 29, 1997. Petitioner appealed his conviction to the Tenth Circuit Court of Appeals claiming the court erred in: (1) failing to suppress evidence seized as a result of a search warrant that did not authorize the "no knock" entry; (2) failing to suppress evidence seized as a result of a search warrant lacking in probable cause and particularity; (3) failing to require the government to disclose the identity of the confidential informant; and (4) refusing to grant a new trial based on governmental conduct allegedly constituting extra judicial contact with jurors. On December 11, 1998, the circuit court affirmed petitioner's conviction. Thereafter, on December 13, 1999, the current motion was filed with the clerk of the court.
II. DISCUSSION
A. Limitation Period.
Respondent argues that petitioner has brought his motion in violation of the one-year period of limitation imposed by § 2255. The court disagrees. Since the parties filed their papers regarding this motion, the Tenth Circuit handed down its decision in United States v. Burch, 202 F.3d 1274 (10th Cir. 2000). In Burch, the court held that "for purposes of § 2255, if a prisoner does not file a petition for writ of certiorari with the United States Supreme Court after her direct appeal, the one-year limitation period begins to run when the time for filing a certiorari petition expires." 202 F.3d at 1279. Petitions for certiorari must be filed within ninety days of the lower court's entry of judgment. See Sup. Ct. R. 13. In the present case, petitioner did not seek a writ. Therefore, because the Tenth Circuit's order affirming petitioner's conviction was entered on December 11, 1998, the one-year period began to run on March 11, 1999. Petitioner's motion was filed by the clerk on December 13, 1999, well in advance of the March 11, 2000 deadline. B. Petitioner's Claims.
Petitioner's motion is timely regardless of the applicability of Houston v. Lack, 487 U.S. 266 (1988) and the prison "mail-box" rule.
Petitioner presents three grounds for attacking the validity of his sentence: (1) ineffective assistance of counsel before trial, during trial, and at sentencing; (2) ineffective assistance of appellate counsel; and (3) prosecutorial misconduct. At the outset, respondent argues that some or all of petitioner's claims are procedurally barred. See United States v. Allen, 16 F.3d 377 (10th Cir. 1994) (noting that claims that could have been raised in direct appeal but were not, are barred, absent a showing of cause and actual prejudice, in subsequent § 2255 motions). See also United States v. Frady, 456 U.S. 152 (1982). The court agrees with respondent as to the prosecutorial misconduct claim, and finds that it is barred. Petitioner's other two claims, however, are not barred because the procedural bar does not generally apply to ineffective assistance of counsel claims. See United States v. Galloway, 56 F.3d 1239, 1241 (10th Cir. 1995).
1. Ineffective Assistance of Trial Counsel.
Ineffective assistance of counsel claims are analyzed under the now familiar Strickland test. See Strickland v. Washington, 466 U.S. 668 (1984). To prevail on his claim, petitioner must show: "(1) that his counsel's performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense." Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998) (citing Strickland, 466 U.S. at 688). To show prejudice under the second prong, petitioner must show a reasonable probability exists that, but for his counsel's unprofessional errors, the result of the proceedings would have been different. See United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997). Due to petitioner's status as a pro se litigant, the court recognizes the need to liberally construe his pleadings. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Petitioner offers several alleged examples of how his counsel was deficient. As a general complaint, his petition states that counsel failed to properly conduct an independent investigation prior to his trial. The record, however, is devoid of any evidence tending to support this assertion. The court finds that this complaint lacks merit. The court will now address petitioner's numerous specified instances of error.
(a) Failure to file a pretrial motion to dismiss.
Petitioner claims that because crack cocaine/cocaine base is not "properly scheduled" under federal law, counsel should have filed a motion seeking dismissal of the indictment. In essence, petitioner believes possession of crack cocaine with the intent to distribute is not a crime under 21 U.S.C. § 841. This argument is wholly frivolous and counsel was not deficient for failing to present it to the court. Cocaine base has been included within the schedule of controlled substances since passage of the Controlled Substance Act, Pub.L. No. 91-513, 84 Stat. 1247, in 1970. See 21 U.S.C. § 812(c), Sched. II(a)(4) ("cocaine, its salts, optical and geometric isomers, and salts of isomers"). While Congress enhanced the penalties associated with cocaine base in 1986, the drug has always been a properly scheduled controlled substance. See United States v. Manzueta, 167 F.3d 92, 92-94 (1st Cir. 1999).
(b) Failure to properly argue motion to suppress.
Petitioner argues that his counsel improperly argued his motion to suppress. He details the law as related to the "knock and announce" principle, but presents no argument on how counsel was deficient in her duties. Counsel presented the arguments to this court and the appellate court, and both courts denied the motion. Counsel properly presented the argument. Petitioner makes additional arguments regarding the scope of the officer's search, yet these exact arguments were raised by counsel in petitioner's motion to dismiss. Counsel could not be deficient in this manner when she properly presented the arguments to the court.
(c) Testimony of government's witness.
Petitioner's argument is premised squarely on the Singleton panel decision. See United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). With the en banc review handed down in United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), petitioner's position is untenable and counsel was not deficient under Strickland.
(d) Failure to file dismissal based on vagueness.
Petitioner claims 21 U.S.C. § 841(a)(1) is unconstitutional under the void-for-vagueness doctrine, so he contends that counsel was deficient for not presenting this argument to the court. This assertion, however, is wholly unsupported by federal case law. See, e.g., United States v. Easter, 981 F.2d 1549, 1557-58 (10th Cir. 1992). Counsel acted reasonably in not asserting this frivolous claim.
(e) Failure to object to government's unqualified expert witness.
At trial, the government called Junction City Police Officer Michael life. Officer Life generally testified to matters relating to the search of the residences in question and the evidenced seized. Petitioner claims that counsel was deficient in not objecting to Officer Life's testimony. Specifically, petitioner believes counsel should have challenged Life's testimony regarding admitted fingerprints and cocaine, for he was testifying to matters reserved for qualified experts. After revisiting the trial transcript, the court finds that Officer Life was not testifying as either a fingerprint analysis expert nor as a chemical specialist. Instead, Officer Life's testimony is consistent only with his experience and knowledge regarding police procedure and common activities within the drug community. Contrary to petitioner's allegation, counsel was not deficient for failing to object on his proffered grounds. In the alternative, the court finds that even if petitioner was correct, he could not show that counsel's failure resulted in any prejudice, for the government also called a forensic fingerprint expert and a forensic chemist to testify to these same matters.
(f) Incompetency of cross examination.
Petitioner alleges that counsel failed to properly expose an alleged conflict between two of the government's witnesses. At trial, however, counsel did subject both of the witnesses to competent cross examination. His assertion is squarely focused on the credibility of the witnesses — a determination not to be made now, by the court, but rather at trial, by the jury. See, e.g., Soto v. Lefevre, 651 F. Supp. 588, 592 (S.D.N.Y. 1986) ("[a]s a general matter, issues of credibility are to be resolved by the jury and are not to be redetermined by federal courts in a habeas corpus proceeding"), aff'd mem., 812 F.2d 713, cert. denied, 482 U.S. 907 (1987). Therefore, the court finds counsel's performance reasonable.
(g) Expert witnesses.
Petitioner asserts counsel should have objected to government's expert witnesses. As to government's fingerprint expert, petitioner claims it was improper for the expert to testify concerning fingerprints found on plastic bags containing contraband when the expert had no personal knowledge as to where or how the plastic bags were seized. The court finds no error on the part of counsel in not presenting this objection, for Officer Life sufficiently testified as to the identity and authentication of the plastic bags in question. The court agrees with respondent that laboratory personnel would generally never have personal knowledge regarding the seizure of evidence.
As to government's chemical expert, petitioner asserts that she failed to properly identify the contraband as crack cocaine. This argument is without merit. The record reveals that government's witness properly identified the substance as crack cocaine. Counsel was not deficient in failing to raise this objection.
(h) Sentenced for crack not powder cocaine.
Petitioner appears to be alleging that counsel should have informed the court that he was improperly sentenced for possessing crack instead of powder cocaine. However, petitioner was indicted and found guilty of possessing crack cocaine. Counsel acted reasonably in not presenting this frivolous claim.
2. Ineffective Assistance of Appellate Counsel.
Petitioner's trial counsel also argued his appeal, so petitioner simply reasserts his prior arguments under this second heading. In light of the above analysis, the court finds no deficiency in counsel's appellate representation.
3. Prosecutorial Misconduct
Even if petitioner's claim was not procedurally barred, the court finds, in the alternative, that petitioner's assertions of misconduct are without merit. Petitioner alleges that the government engaged in misconduct because it presented witnesses in violation of federal law, indicted petitioner for a crime that doesn't exist, and created a false impression by eliciting contradictory testimony. These allegations are merely restatements of petitioner's previous assertions.
III. CONCLUSION
The court finds all of petitioner's allegations to be without merit. Therefore, the court will not grant petitioner's request for the appointment of counsel or an evidentiary hearing.
IT IS THEREFORE BY THIS COURT ORDERED that petitioner's Motion to Vacate, Set Aside, or Correct his Sentence (Doc. 88) is denied. Additionally, petitioner's Motion for an Evidentiary Hearing and Motion for Appointment of Counsel (Doc. 94) are denied.