Opinion
CR No. 96-318-FR, Civil No. 00-1186-FR.
January 14, 2002
Michael W. Mosman, United States Attorney, Michael J. Brown, Assistant United States Attorney, Portland, Oregon, Attorneys for Plaintiff.
David B. Thompson, Portland, Oregon, Attorney for Defendant.
OPINION
The matter before the court is the motion of the defendant, Corey Keith Woodard, under 28 U.S.C. § 2255, to vacate, set aside or correct the sentence imposed by this court (#62).
BACKGROUND
The indictment charged the defendant with the crime of unlawfully possessing a firearm on October 30, 1995 (Count1); unlawful distribution of cocaine base on November 30, 1995 (Count 2); unlawful distribution of cocaine base on December 5, 1995 (Count 3); possession with the intent to distribute cocaine base on December 15, 1995 (Count 4); andunlawfully possessing a firearm on December 15, 1995 (Count 5).
Prior to the commencement of trial, the government filed, pursuant to 21 U.S.C. § 851, an information notifying the defendant of the applicability of the enhanced penalty provisions of 21 U.S.C. § 841(b)(1)(B), based on both the quantity of crack cocaine involved and the prior drug-trafficking convictions of the defendant. Neither the indictment nor the charge to the jury specifically referenced the amount of crack cocaine encompassed by the charges. Prior to the selection of the jury, the prosecutor stated in open court in the presence of the defendant the following:
Prior to the commencement of proceedings this morning and prior to selection of the jury and swearing of that jury, the Government has filed with the Court two informations, one filed pursuant to 21 U.S.C. § 851 which is an information triggering, if you would, a 10 to life sentence for each of the drug counts in this indictment.
A second information, which is not legally required but is filed as a courtesy to Mr. Woodard, is filed as a notice of enhanced punishment under the armed criminal career — armed career criminal provisions of 18 U.S.C. § 924(e)(1). And we filed that notice this morning as well to put Mr. Woodard on notice of the fact that each of the gun counts included in the indictment will carry a minimum sentence of 15 years.
TR 2-3.
The court asked the defendant if he "under[stood] the enhanced punishment notice," and the defendant replied, "Yes. "TR 5.
On September 23, 1997, the court convened a jury trial. In his opening statement, counsel for the government stated to the jury:
The charges — there are similarities. The charges are these:The first and fifth counts are both allegations that Mr. Woodard unlawfully possessed a firearm in effect. The Court outlined, I think, the elements of that offense which consist of Mr. Woodard possessing a weapon and being prohibited from doing so because he had previously been convicted of a felony offense. If you have a prior felony conviction you can't carry a gun, you can't have a gun.
As I recall the voir dire, many people have guns but you are barred once you pick up a felony conviction. And in this case the allegation will be that Mr. Woodard's possession of the firearm was prohibited because he had prior felony convictions. More specifically, that he'd been convicted in 1989 of distribution of cocaine base, which you'll learn in the course of the trial means crack cocaine. He'd been convicted in 1989 of two crack cocaine distribution offenses, and also the offense of assault in the first degree in Multnomah County.
TR 14-15.
Counsel for the defendant told the jury that government informant John Mitchell was not credible because he was a paid informant with an extensive criminal history, and that the drugs and gun found in the car did not belong to the defendant.
Prior to the first witness, the government introduced, without objection, certified copies of judgments substantiating the defendant's prior convictions as (1) Distribution of cocaine base, United States District Court case # CR 89-62; (2) Distribution of cocaine base, United States District Court case # CR 89-64; and (3) Assault in the First Degree, Circuit Court of the State of Oregon for the County of Multnomah, case # 89-06-32933. Government's Exhibits 1, 2 and 3.
The jury returned a verdict of guilty on all of the drug charges (Counts 2, 3 and 4) and the one count of illegal possession of a firearm (Count 5). The jury returned a verdict of not guilty on Count 1, the other count of illegal possession of a firearm. On February 2, 1998, this court sentenced the defendant to a term of imprisonment of 360 months on each of the four counts of conviction, including the firearm offense, with said sentences to be served concurrently.
The defendant appealed to the United States Court of Appeals for the Ninth Circuit on the grounds that 1) because he committed the offense of conviction while Amendment 506 was still in effect, United States v. LaBonte, 520 U.S. 751 (1997), should not have been applied retroactively; and 2) the two prior drug offenses and the firearm offense should have been counted as a single offense for the purposes of the career offender guideline because all resulted from a single scheme or plan. On April 9, 1999, the United States Court of Appeals for the Ninth Circuit denied the appeal in an unpublished memorandum.
On August 28, 2000, the defendant filed this motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence on the grounds that 1) he was denied the effective assistance of counsel at trial when his trial counsel failed to offer to stipulate to the existence of his prior felony conviction to prevent the government from informing the jury of the nature of his prior felony convictions as an element of the charge of a felon in possession of a firearm; and 2) the issue of drug quantity was not determined by the jury as required byApprendi v. New Jersey, 530 U.S. 466 (2000).
The government opposes the motion under 28 U.S.C. § 2255. The government contends that the defendant cannot demonstrate a reasonable probability that he was prejudiced by the conduct of his trial attorney; and that the Apprendi rule is not retroactive and, even assuming that it was, any Apprendi error was harmless in light of the uncontested evidence of drug quantity.
APPLICABLE LAW
28 U.S.C. § 2255 provides, in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon 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 isotherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
A petitioner is entitled to an evidentiary hearing on a motion to vacate his sentence under 28 U.S.C. § 2255, unless the:
motions and the files and records of the case conclusively show that the prisoner is entitled to no relief. This inquiry necessitates a twofold analysis:(1) whether the petitioner's allegations specifically delineate the factual basis of his claim; and, (2) even where the allegations are specific, whether the records, files and affidavits are conclusive against the petitioner.United States v. Taylor, 648 F.2d 565, 573 (9th Cir.), cert. denied, 454 U.S. 866 (1981) (internal quotations, citations and footnote omitted).
Under section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, `[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255) (emphasis in the original). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotations omitted), cert. denied, 520 U.S. 1269 (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief.Id. Mere conclusory statements in a section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981).
ANALYSIS
1) Ineffective Assistance of Counsel
To prevail on a claim of the ineffective assistance of counsel, a petitioner must show both 1) that the attorney's performance fell below an objective standard of reasonableness; and 2) that the performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 688 (1984). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. To establish the second prong of the Strickland test, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. "Id. at 694.
The defendant contends that had his trial counsel offered to stipulate to the existence of the second element of Count 1 and Count 5, i.e., a prior felony conviction, the district court would have been required underOld Chief v. United States, 519 U.S. 172 (1997), to accept that stipulation and prohibit the admission of the nature of his prior convictions. The defendant contends that his counsel's failure to make such an offer constitutes deficient performance which resulted in unfair prejudice. The defendant explains that the potential for prejudice was extreme in his case where the jury was informed of his prior convictions for the distribution of crack cocaine in his trial where he was charged with the very same crime in Counts 2 and 3 and with possession with the intent to distribute cocaine in Count 4.
The government contends that the jury demonstrated that it was not prejudiced and was able to calmly and analytically assess the evidence in this case because it acquitted the defendant on Count 1. The government further asserts that the not guilty verdict in Count 1 demonstrates that the jury was not influenced by the defendant's prior felony convictions.
The government further contends that the evidence of the defendant's guilt as to Counts 2, 3, 4 and 5 was overwhelming in light of the substantial evidence offered to corroborate the testimony of the government's informant, John Mitchell.
In Old Chief, filed on January 7, 1997, the United States Supreme Court held in a prosecution under 18 U.S.C. § 922(g)(1) that "a district court abuses its discretion if it spurns [a defendant's] offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction. "519 U.S. at 174. The United States Supreme Court explained:
In dealing with the specific problem raised by § 922(g)(1) and its prior-conviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant. That risk will vary from case to case, for the reasons already given, but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious. . . .Id. at 185.
Old Chief was filed seven months before the trial in this case. The defendant's prior convictions were for drug offenses identical to ones for which the defendant was on trial. The United States Supreme Court noted that the "risk of unfair prejudice would be especially obvious" where the prior conviction was for a crime similar to the charge in the pending case. Id.
The defendant in this case must show 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. The jury in this case rejected the testimony of a government informant, Kevin Penn, and returned a verdict of not guilty on Count 1. The facts relating to Counts 2 through 5 in this case were provided at trial by government informant John Mitchell and Special Agent Kim of the Bureau of Alcohol, Tobacco and Firearms. Special Agent Kim worked with John Mitchell, a paid government informant, on controlled drug buys. Kim and Mitchell described the circumstances surrounding these drug transactions on November 30, 1995 (Count 2), December 5, 1995 (Count 3), and December 15, 1995 (Count 4) to the jury in detail. The felon in possession of a firearm charge in Count 5 was a part of the evidence found underneath the left passenger seat in the car where the defendant was seated after the drug transaction on December 15, 1995.
The testimony of John Mitchell was corroborated by the testimony of Special Agent Kim, who supervised Mitchell throughout the investigation and the controlled buys. The testimony of Special Agent Kim and government informant Mitchell was further corroborated by audio tapes and video tapes of material conversations and meetings between the defendant and Mitchell. There was substantial evidence corroborating the testimony of government informant Mitchell. The evidence relied upon by the jury to support the conclusion that Mitchell was truthful was overwhelming. This court concludes that there is not a reasonable probability that, but for counsel error in allowing the jury to hear the nature of the defendant's prior convictions, the result of the proceeding would have been different.
2) Apprendi Error
The defendant contends that he is entitled to relief from his conviction and/or his sentence based upon the decision of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). There is no dispute that the decision of the United States Supreme Court in Apprendi requires that any fact that increases the statutory maximum sentence to which a defendant is subject, other than the fact of a prior conviction, must now be found by the jury beyond a reasonable doubt. InUnited States v. Nordby, 225 F.3d 1053 (9th Cir. 2000), the United States Court of Appeals for the Ninth Circuit held that the amount of drugs for which a defendant is sentenced under 21 U.S.C. § 841(b)(1) is a fact which increases the prescribed statutory maximum penalty to which a criminal defendant is exposed, and this fact must be submitted to a jury and proven beyond a reasonable doubt under Apprendi. Nordby, 225 F.3d at 1056.
In United States v. Pittman, 120 F. Supp.2d 1263, 1271 (D. Or. 2000), the Honorable Malcolm F. Marsh filed an opinion and order finding "thatApprendi should not be applied retroactively to cases on collateral review in which the petitioner challenges a sentence imposed by virtue of a judicial finding of fact substantiating a statutory sentencing enhancement by a preponderance of the evidence. "This court follows Judge Marsh's ruling.
Finally, the United States Court of Appeals for the Ninth Circuit has vacated the opinion in United States v. Buckland, 259 F.3d 1157 (9th Cir. 2001), wherein the defendant argued and the Court of Appeals held that Apprendi rendered 21 U.S.C. § 841(b)(1) facially unconstitutional. United States v. Buckland, 265 F.3d 1085 (9th Cir. 2001), pending before an en banc court.
CONCLUSION
The motion of the defendant, Corey Keith Woodard, under 28 U.S.C. § 2255, to vacate, set aside or correct the sentence imposed by this court (#62) is denied.