Opinion
4:97CR3019
November 27, 2000
MEMORANDUM ON DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255
This case comes before me on the defendant's Motion Under 28 U.S.C. § 2255, filing 144. In its answer, filing 147, the government denies the defendant's allegations and contends that his motion should be dismissed. After reviewing the record before me, I conclude that further fact finding is necessary with respect to the defendant's third and fourth claims. The defendant's remaining claims will be denied.
I. Background
On May 20, 1997, a two-count sealed indictment was filed, charging the defendant and a co-defendant with (1) conspiracy to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. § 846, and (2) possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841 (a)(1). Filing 1. A superseding indictment was later filed, altering the dates of the conspiracy charged in count one and including the defendant's aliases. Filing 19. The defendant was arraigned on the superseding indictment and entered pleas of not guilty as to both counts.
On January 5, 1998, the defendant's jury trial began. A mistrial was declared on January 7, 1998, and a second jury was impaneled on May 19, 1998. At the conclusion of the trial, the jury returned a verdict finding the defendant guilty as to both counts of the superseding indictment. On January 7, 1999, I then sentenced the defendant to 360 months imprisonment as to count one and two, to run concurrently, followed by five years of supervised release. A $200 special assessment was also imposed.
The defendant appealed his conviction to the Eighth Circuit Court of Appeals, arguing that (1) a mistrial should not have been sought or granted because his counsel did not allow him to make that decision, and (2) his retrial was barred on double jeopardy grounds because the prosecutor intended to provoke his counsel into moving for a mistrial. See United States v. Washington, 198 F.3d 721, 723 (1999). The Eighth Circuit rejected both of the defendant's claims and affirmed his conviction. Id. The defendant then filed the present motion pursuant to 28 U.S.C. § 2255, alleging four grounds for relief. See Motion Under 28 U.S.C. § 2255, United States v. Washington, 4:97cr03019 (D.Neb.), filing 144 [hereinafter Defendant's Motion].
II. Standard of Review
Section 2255 of Title 28 of the United States Code provides individuals in federal custody with a means to collaterally attack a sentence imposed after a conviction. A motion to vacate, set aside or correct a sentence may be based on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." 28 U.S.C. § 2255 ¶ 1. A movant must be afforded an evidentiary hearing on his § 2255 motion "[u]nless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief. . . ." Id. ¶ 2.
Generally, a claim that is not properly preserved at trial or on direct appeal is procedurally defaulted and cannot be reached in a § 2255 proceeding. United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995). A movant may avoid this procedural bar if he can show cause for the default and resulting prejudice, or if he can show that the alleged error was a "fundamental miscarriage of justice." Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994).
Ineffective-assistance-of-counsel claims, however, are usually "not cognizable on direct appeal." United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994) (citing United States v. Sanchez, 927 F.2d 376, 378 (8th Cir. 1991); United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990)). Such claims are properly raised in either § 2255 proceedings or in habeas corpus actions. Id. The rare exception to this rule applies when the district court has developed a factual record with respect to the ineffectiveness issue. Id. (citing United States v. Williams, 897 F.2d 1430, 1434 (8th Cir. 1990)).
III. Discussion
In his § 2255 motion, the defendant raises the following four grounds for relief: (1) the United States Supreme Court decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), renders his sentence constitutionally infirm in that the government "has failed to prove all required elements of the instant conviction beyond a reasonable doubt"; (2) 21 U.S.C. § 841 is unconstitutional as written in light of the Supreme Court's Apprendi decision; (3) his trial counsel engaged in misconduct and was generally ineffective; and (4) his trial counsel was ineffective in failing to interview and/or call witnesses on his behalf. In response, the government denies the defendant's allegations and contends that his motion should be dismissed without an evidentiary hearing. For the reasons discussed below, I find that the defendant's third and fourth claims merit further review. His remaining claims will be dismissed.
A. Ground One: Apprendi v. New Jersey Renders the Defendant's Sentence Constitutionally Infirm
The defendant first argues that his sentence violates the constitutional principles set forth by the United States Supreme Court in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). In support of his first claim, the defendant also relies on the case of Jones v. United States, 526 U.S. 227 (1999). According to the defendant, these decisions require the government, in federal drug cases, to charge drug quantity in the indictment and to prove drug quantity to the jury beyond a reasonable doubt. Defendant's Motion at 9. Because such a procedure was not followed in his case, he contends that his convictions must be vacated.
In Jones v. United States, the Supreme Court addressed the elusive distinction between "elements" of a substantive offense, which must be considered by a jury, and "sentencing factors," which are based on judicial findings of fact. At issue in Jones was the federal carjacking statute, which provided for increased penalties when "serious bodily injury" resulted. Jones, 526 U.S. at 230. The Supreme Court, in interpreting this statute, found that it was ambiguous as to whether the "serious bodily injury" provision was a sentencing factor or an element of a different, more serious, substantive offense. Id. at 232-39. Citing the rule of constitutional doubt, the Court concluded that the enhancement provision, which increased the maximum statutory sentence from fifteen years to twenty-five years, was actually an element of a separate substantive offense. Id. at 230, 239-40. In a footnote, the Court then expressed the following principle underlying its decision: "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6.
The Apprendi decision clarified that the principle expressed in Jones is required as a matter of constitutional law. See United States v. Aguayo-Delgado, 220 F.3d 926, 931 (8th Cir. 2000) (stating that "[i]n Apprendi, the Supreme Court made it clear that the principle discussed in Jones is a rule of constitutional law"). In Apprendi, the Court upheld a constitutional challenge to a New Jersey statute that authorized enhanced penalties beyond the prescribed statutory maximum for offenses committed with a biased purpose. Apprendi, 120 S.Ct. at 2352, 2362-63. Under the procedures established by the statute, this sentence enhancement provision was triggered upon a judicial finding that the defendant acted "with a purpose to intimidate" in committing the substantive offense. Id. at 2352. In analyzing this procedure, the Court re-examined "the constitutionally novel and elusive distinction" between sentencing factors and elements of a substantive offense. Id. at 2365. According to the Court, "the relevant inquiry [in distinguishing between sentencing factors and substantive elements] is one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. Rejecting New Jersey's characterization of the enhancement provision as a mere "sentencing factor," the Supreme Court referred to Jones in holding that "[o]ther 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 proved beyond a reasonable doubt." Id. at 2362-63.
In United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000), the Eighth Circuit examined the effect of Apprendi on federal drug laws. The defendant in Aguayo-Delgado was convicted of conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846. Aguayo-Delgado, 220 F.3d at 928. Based on § 841(b)(1)(A), which prescribes penalties for drug violations based on specific drug types and amounts, the defendant was subject to a sentence of twenty-years-to-life imprisonment. Id. at 930. Section 841(b)(1)(C), which defines penalties for drug violations without reference to drug quantity, prescribed a sentence of no more than thirty years imprisonment. Id. The district court, in calculating the defendant's sentence, determined that the guidelines normally allowed for a sentencing range of 235 to 293 months imprisonment, based, in part, upon a judicial finding that the defendant was responsible for "more than 3 but under 15 kilograms" of methamphetamine. Id. at 929. Because § 841(b)(1)(A) required at least twenty years imprisonment, the district court then concluded that the applicable sentencing range was 240 to 293 months and sentenced the defendant to the statutory minimum of 240 months. Id. The defendant appealed, arguing that the drug quantity should have been charged in the indictment and proven to the jury beyond a reasonable doubt. Id.
The Eighth Circuit, in analyzing the defendant's claim, first examined the method by which federal courts ascertain drug quantity for purposes of sentencing. Id. at 929-30. District court judges generally make such determinations free from the constraints of the Federal Rules of Evidence, using a preponderance of the evidence standard. Id. The Eighth Circuit had repeatedly approved this practice, concluding that the legislature had defined drug quantity as a sentencing factor and not as an element of a substantive crime. Id. at 930-31, 932-33 ("We concluded that § 841(b) contains sentencing provisions, not elements of substantive crimes."). In light of Apprendi, however, the Eighth Circuit acknowledged that its analysis of the federal drug sentencing system "no longer fully comports with the Supreme Court's jurisprudence concerning the requirement of proof beyond reasonable doubt and the scope of criminal defendants' jury trial right." Id. at 932. Recognizing that judge-found facts could no longer increase a defendant's statutory maximum sentence, the court abandoned its pre- Apprendi holdings to the contrary. Id. at 933. Thus, the court found that in those cases where the government seeks penalties beyond the statutory maximum prescribed by § 841(b)(1)(C), based on drug quantity, the government "must charge [drug quantity] in the indictment, and must prove [drug quantity] to the jury beyond a reasonable doubt." Id. at 933. In those cases, however, where non-jury factual determinations as to quantity only narrow the sentencing judge's discretion within the range already authorized by § 841(b)(1)(C), Apprendi concerns are not implicated. Id. Applying these principles to the facts of Aguayo-Delgado, the court concluded that because the defendant was sentenced within the statutory range authorized by § 841(b)(1)(C), without reference to drug quantity, Apprendi did not require reversal. Id. at 934.
The defendant in this case was convicted of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 (count one), and possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841 (count two). While the superseding indictment alleged drug quantity as to both counts, the jury instructions, in setting forth the elements of each offense, did not mention quantity. Nor did the jury return any special findings as to quantity. See Verdict, United States v. Washington, No. 4:97cr03019 (D.Neb.), filing 90. The statutory maximum sentence as to each count, without reference to drug quantity, was twenty years imprisonment, with a minimum supervised release period of three years. See 21 U.S.C. § 841(b)(1)(C); see also 21 U.S.C. § 846 (providing that the penalties for conspiracy are the same as those for prescribed the substantive offense, "the commission of which was the object of the attempt or conspiracy"). The Presentence Investigation Report (hereinafter PSI Report), however, identified a statutory range of ten-years-to-life imprisonment as to count one, pursuant to 21 U.S.C. § 841 (b)(1)(A), and five-to-forty-years imprisonment as to count two, presumably pursuant to 21 U.S.C. § 841(b)(1)(B). Presentence Investigation Report ¶ 96, United States v. Washington, No. 4:97cr03019 (D.Neb.) [hereinafter PSI Report]. The probation officer also calculated an imprisonment range of 360 months to life imprisonment, based on the sentencing guidelines. Id. ¶ 97. I adopted the PSI Report and sentenced the defendant to 360 months (30 years) as to count one and two of the indictment, to run concurrently, based, in part, on my finding that the defendant could be held responsible for at least 253 grams of cocaine base. Transcript of [Sentencing] Hearing at 787:10-24, United States v. Washington, No. 4:97cr03019 (D.Neb.), filing 129 [hereinafter Sentencing Transcript); Tentative Findings on Objections to Presentence Investigation Report at 1, United States v. Washington, No. 4:97cr03019 (D.Neb.), filing 117. Thus, it appears to me that the defendant's 360-month concurrent sentences as to counts one and two exceeded the twenty-year statutory maximum prescribed in § 841(b)(1)(C), without reference to drug quantity, in violation of the constitutional principles outlined in Apprendi and Aguayo-Delgado.
The verdict form simply required the jury to find the defendant either guilty or not guilty on each count.
The Presentence Investigation Report refers to 21 U.S.C. § 841(a)(B)(2).
In its answer, the government raises several procedural challenges to the defendant's Apprendi claim. According to the government, this claim should be dismissed for the following reasons: (1) the defendant failed to object, either at trial or on direct appeal, to a judicial finding as to the amount of drugs involved for sentencing purposes and is therefore barred from raising this objection for the first time on a collateral attack; (2) the principle adopted in Apprendi is a "new constitutional rule of criminal procedure" that does not apply to cases on collateral review, as it does not fall within the "watershed" exception of Teague v. Lane, 489 U.S. 288 (1989) and has not been specifically made retroactive by the United States Supreme Court; and (3) because the defendant was charged in the indictment with conspiracy to distribute fifty grams or more of cocaine base, he cannot establish that he suffered any prejudice as a result of my judicial finding as to drug quantity. Upon reviewing the government's arguments, I find that the defendant's Apprendi claim is procedurally barred.
Collateral proceedings pursuant to § 2255 cannot be made to do service for a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Ward, 55 F.3d 412 at 413. Thus, "[t]o the fullest extent possible, all arguments, even constitutional or jurisdictional ones . . . should be made at trial and on direct appeal." Ward, 55 F.3d at 413 (citations omitted). Accordingly, claims not properly preserved at trial or on direct appeal "cannot be reached in a § 2255 proceeding unless the petitioner can show both cause for the [claim's] not having been previously raised and prejudice from the [alleged] legal error," or if the petitioner can show that the alleged error was a "fundamental miscarriage of justice." Id. (citing Frady, 456 U.S. at 167- 68); Anderson, 25 F.3d at 706-07.
In this case, the defendant did not object to a judicial finding as to the amount of drugs involved in the offenses and did not argue that the issue of drug quantity should have been presented to the jury. See Objections to Presentence Report; With Alternative Motion Pursuant to U.S.S.G. § 5K2.0, United States v. Washington, 4:97cr03019 (D.Neb.), filing 115 [hereinafter Defendant's Objections]. Nor did the defendant raise such issues on direct appeal. See Washington, 198 F.3d at 723. Thus, it appears to me that the defendant has procedurally defaulted his first claim for relief. See Ward, 55 F.3d at 413; Anderson, 25 F.3d at 706-07.
The defendant did object to ¶ 49 of the PSI Report, which calculated the base offense level according to the quantity of drugs for which the defendant could be held responsible, pursuant to the sentencing guidelines. Defendant's Objections at 1. In this objection, however, the defendant was apparently challenging only the basis for the PSI Report's finding that the defendant could be held responsible for more than 150 grams but less than 500 grams of cocaine base. See Sentencing Transcript at 759:3-760:1. In other words, the defendant simply questioned the credibility of certain witnesses who testified at trial regarding drug quantity. Accordingly, the defendant's counsel argued the following at the sentencing hearing:
[I]t is incumbent upon this Court to make a determination at sentencing as to the type and quantity of controlled substance involved.
And in doing so, the Court should make drug quantity determinations relying upon information that has sufficient indicia of reliability and is supported-case law says supported by probably accuracy. And if you look at specific references to testimony, the substance of that testimony and whether the testimony is to be credible or is considered credible cannot-as the Courts have said in the past, cannot be understated.
It's our position that the evidence that was adduced during the course of the trial was at most contradictory evidence, was confusing evidence and reliance upon various individuals . . . their credibility, their believability was called into question, was cross-examined during the course of the trial proceedings and it's incumbent upon you to make [a] determination as to the reliability and believability of each of those individuals, especially now as to the determination to be made of the amount and type of controlled substance to be attributable to Mr. Washington for determining appropriate base offense level.
Id. at 759:3-760:1 (emphasis supplied). Thus, I do not believe that the defendant's objection to ¶ 49 of the PSI Report can be reasonably construed as a challenge to the government's failure to prove drug quantity to the jury beyond a reasonable doubt.
As noted above, however, a defendant may excuse his procedural default by showing both cause for the default and resulting prejudice. See Frady, 456 U.S. at 167; Ward, 55 F.3d at 413; Anderson, 25 F.3d at 706. The Supreme Court has recognized that the reasonable unavailability of the factual or legal basis for a claim may satisfy the first prong of this "cause and prejudice" standard. McCleskey v. Zant, 499 U.S. 467, 494 (1991). While legal unavailability may constitute cause to excuse a procedural bar, "the standard is a strict one — the constitutional claim must be `so novel that its legal basis is not reasonably available to counsel.'" Heffernan v. Norris, 48 F.3d 331, 333 (8th Cir. 1995) (citing Reed v. Ross, 468 U.S. 1, 16, (1984), Leggins v. Lockhart, 822 F.2d 764 (8th Cir. 1997)); Ruff v. Armontrout, 77 F.3d 265, 267 (8th Cir. 1996), cert. denied, 519 U.S. 889 (1996).
In this case, I do not find it necessary to reach the question of whether Apprendi announced a novel constitutional doctrine, because I find that the defendant cannot demonstrate actual prejudice under the second prong of the "cause and prejudice" standard. The defendant was convicted of both counts charged in the superseding indictment. Section 5G1.2 of the sentencing guidelines "specifies the procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case." Guidelines § 5G1.2, commentary ¶ 1. According to this section:
These counts are grouped together, pursuant to § 3D1.2(d) of the sentencing guidelines, for purposes of determining the applicable base offense level. See U.S. Sentencing Guidelines Manual § 3D1.2(d) (1997) [hereinafter Guidelines]; PSI Report ¶ 49.
If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.Id. at § 5G1.2(d).
In this case, the "total punishment" for the group consisting of counts one and two, as adopted by this court, was 360 months imprisonment, the bottom of the guideline range of 360 months to life. See Judgment in a Criminal Case at 2, United States v. Washington, No. 4:97cr03019 (D.Neb.), filing 121 [hereinafter Judgment]. Since the government failed to prove drug quantity to the jury beyond a reasonable doubt, counts one and two each provide for a statutory maximum of 240 months (20 years) imprisonment. See 21 U.S.C. § 841(b)(1)(C); Aguayo-Delgado, 220 F.3d at 933. The "highest statutory maximum" would therefore be 240 months, according to the guideline reproduced above. Thus, if the defendant were granted relief on his first claim, I could resentence him to a statutory maximum of 240 months imprisonment on each count. In accordance with § 5G1.2(d), these sentences would run consecutively, "but only to the extent necessary to produce a combined sentence equal to the total punishment." Guidelines at § 5G1.2(d). As a result, 120 months of the 240-month sentence imposed on count two would run consecutive to the 240 months imposed on count one. The remaining 120 months of the 240-month sentence on count two would run concurrent to the sentence for count one. The defendant would therefore be sentenced to a total actual imprisonment term of 360 months, or 30 years. Because this is the same actual imprisonment term that I imposed following the January 7, 1999, sentencing hearing, and because the imposed term of supervised release is within the range prescribed by § 841(b)(1)(C), it appears to me that the defendant cannot satisfy the "prejudice" prong of the "cause and prejudice" standard. See Judgment at 2, 3. Furthermore, I do not see any evidence that the "miscarriage of justice" exception is applicable to the facts of this case. See Anderson, 25 F.3d at 706-07 ("The exception [which is also known as the "actual innocence" exception] applies only when a petitioner shows by clear and convincing evidence that, but for an alleged constitutional error, no reasonable juror would have found the petitioner guilty." (citation omitted)). I therefore find that the defendant's first claim for relief is procedurally barred.
I reach this conclusion based on my findings that (1) the jury instructions did not include drug quantity as an element of the charged offenses, and (2) the jury made no special findings as to drug quantity.
Section 2255 grants me broad remedial powers in fashioning appropriate relief. See 28 U.S.C. § 2255 ¶ 2 (stating that where relief is warranted, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial, or correct the sentence as may appear appropriate.") In this case, I see no reason why a retrial would be necessary if I were to grant the defendant's motion. In light of the jury's finding of guilt, without reference to drug quantity, it appears to me that resentencing in accordance with the statutory maximums provided in § 841(b)(1)(C) would be a more appropriate remedy.
Section 841(b)(1)(C) provides for "at least three years" of supervised release. The defendant was sentenced to five years of supervised release. Judgment at 3.
B. Ground Two: 21 U.S.C. § 841 is Unconstitutional as Written
In his second ground for relief, the defendant claims that in light of Apprendi, 21 U.S.C. § 841 is unconstitutional "as written." According to the defendant, Congress, in enacting § 841, clearly intended drug type and quantity to be characterized as sentencing factors, not elements of the substantive offense. In support of this assertion, the defendant cites several pre- Apprendi decisions from other circuits interpreting the drug quantity provisions in § 841(b) as sentencing factors, and he urges me to "adhere to such precedent." Defendant's Motion at 16. Based on his premise regarding congressional intent, the defendant concludes that "[s]ince "it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal Defendant is exposed," Congress exceeded its authority in enacting § 841. See id. at 15 (citing Apprendi, 120 S.Ct. at 2363 (citing Jones, 526 U.S. at 252-53 (Stevens, J., concurring); id. at 253 (Scalia, J., concurring))). I disagree.
In his second ground for relief, the defendant also argues that because drug quantity and type were not charged in the indictment and proven at trial, his conviction and sentence violate Apprendi. See Defendant's Motion at 20-21. It appears to me, however, that these claims merely duplicate those allegations in his first ground for relief and will therefore not be addressed again.
As discussed above, the Eighth Circuit Court of Appeals, in United States v. Aguayo-Delgado, recognized that its prior analysis of § 841 "no longer fully comports with the Supreme Court's jurisprudence concerning the requirement of proof beyond reasonable doubt and the scope of criminal defendants' jury trial right." Aguayo-Delgado, 220 F.3d at 932. The Eighth Circuit therefore abandoned its previous decisions characterizing the drug quantity provisions in § 841(b) as sentencing factors, to the extent that such decisions violated the constitutional rule set forth in Apprendi. Id. at 932-33. Thus, the court concluded that in those cases where the government seeks enhanced statutory penalties based on drug type and quantity, the government must charge such facts in the indictment and prove them to a jury beyond a reasonable doubt. See id. ("[I]f the government wishes to seek penalties in excess of those applicable by virtue of the elements of the offense alone, then the government must charge the facts giving rise to the increased sentence in the indictment, and must prove those facts to the jury beyond a reasonable doubt."). In such cases, drug quantity and type will be construed as actual elements of the substantive offense. See id. In those cases, however, where non-jury findings as to drug type and quantity only narrow the sentencing judge's discretion within the range authorized by § 841(b)(1)(C), Apprendi is not applicable. It therefore appears to me that the Eighth Circuit, in reaching its decision, construed § 841 in such a manner to avoid constitutional problems. See DeBartolo Corp. v. Florida Gulf Coast Bld. Constr. Trades Council, 485 U.S. 568, 575 (1988) (recognizing that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress"). Accordingly, I find that in light of the Eight Circuit's interpretation of § 841, the defendant's constitutional challenge must fail. His second ground for relief will therefore be dismissed.
C. Grounds Three and Four: Ineffective Assistance of Counsel
The defendant, in his third and fourth grounds for relief, alleges that his trial counsel engaged in misconduct, was generally ineffective, and was ineffective in failing to interview and/or to call witnesses on his behalf. According to the defendant, such witnesses would have supported his innocence. In response, the government contends that the defendant's allegations are insufficient to support an ineffective-assistance-of-counsel claim. After reviewing the submissions before me, I find that further factual development is necessary with respect to the defendant's third and fourth grounds for relief.
Ineffective-assistance-of-counsel claims are governed by the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a movant "must show that counsel's performance was deficient," in that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To satisfy this first prong, the movant must prove that his counsel's assistance fell below an objective standard of reasonableness, considering all of the circumstances faced by the attorney at the time in question. Id. at 688-89. Second, a movant must show that his counsel's deficient performance prejudiced him in that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 687, 694. A court need not address both components of the Strickland inquiry if the movant makes an insufficient showing as to either one of the prongs. Englen v. United States, 68 F.3d 238, 241 (8th Cir. 1995) (citing Strickland, 466 U.S. at 697).
The defendant bases his ineffective-assistance-of-counsel claims on the following allegations: (1) his counsel failed to interview witnesses, (2) his counsel failed to call witnesses to testify at trial, and (3) that such witnesses would have testified as to his innocence. In analyzing similar claims, the Eighth Circuit has required movants to make "a clear showing . . . that important potential testimony would have been discovered in an interview." Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989), cert. denied, 493 U.S. 898 (1989) (citations omitted). Thus, in order to satisfy the prejudice prong of Strickland, movants must generally "provide . . . independent evidence of what the witnesses' testimony would have been. . . ." Dyer v. United States, 978 F.2d 1263 (Table), 1992 WL 307770 at *1-2 (8th Cir. 1992); Sanders, 875 F.2d at 210-211 (concluding that the petitioner's failure to provide affidavits from witnesses regarding potential testimony precluded finding of prejudice). Mere speculation as to prejudice will not suffice. Sanders, 875 F.2d at 210 ("Nothing would encourage a proliferation of ineffectiveness of counsel claims more than to permit an accused to establish the prejudice prong of Strickland on a showing of nothing more than speculation that he had been prejudiced by his counsel's performance.").
The Eighth Circuit Court of Appeals has recently ruled that its unpublished opinions have precedential effect. See Anastoasoff v. United States, 223 F.3d 898 (8th Cir. 2000).
In this case, the allegation of ineffective assistance of counsel consists of the following:
[My] Trial Lawyer was so ineffective, and conduct was bad that it undermined the proper process of a Trial, by not calling Witness, and sending an Investigator to York Neb Prison to talk to another Witness, and telling that Witness the Investigator told her, he was the lawyer and that Petitioner had already received life in prison, and for her not to testify to what she knew and failed to call her in his behalf. Another Witness who was in the Courtroom, the Trial lawyer told to leave or she would be charged.
Defendant's Motion at 22. These allegations fall short of satisfying either component of the Strickland analysis. The defendant has not alleged the identity of these potential witnesses. See McCowan v. United States, 16 F.3d 1228 (Table), 1994 WL 5662 at *1 (8th Cir. 1994) ("We agree with the district court that McCowan did not establish an ineffective-assistance claim, because he failed to identify any witnesses who could have testified that he normally did not wear a pager." (citation omitted). Nor has he provided any description, via independent evidence or otherwise, of what their testimony would have been. He has merely speculated that certain, unidentified witnesses would attest to his innocence. See Sanders, 875 F.2d at 210 ("All that [the movant] offers is speculation that Denise [a potential witness] might have testified that [the movant] was innocent. This is simply inadequate to `undermine confidence in the outcome.'"). Such speculation in insufficient to support his claims.
Nevertheless, at this point I cannot say that the files and records of this case "conclusively show that the prisoner is entitled to no relief," as provided in 28 U.S.C. § 2255. There needs to be a development of the facts regarding the defendant's ineffective-assistance-of-counsel allegations. I shall therefore grant the defendant an opportunity to supplement his third and fourth grounds for relief by amending his motion. Counsel will be appointed to assist the defendant in this task.
IT IS ORDERED that with respect to the defendant's Motion Under 28 U.S.C. § 2255, filing 144:
1. the defendant's first ground for relief is without merit;
2. the defendant's second ground for relief is without merit; and
3. the defendant will have until December 29, 2000, to amend his third and fourth grounds for relief; counsel will be appointed to represent the defendant with respect to these ineffective-assistance-of-counsel claims.