Opinion
Cr. No. 97-276(2) (MJD/JGL), Civ. No. 01-1821 (MJD)
December 3, 2002
ORDER
This matter is before the Court upon Petitioner's motion for relief pursuant to 28 U.S.C. § 2255. For the reasons that follow, the Court denies that motion.
BACKGROUND
In October 1997, Petitioner Robert George Jefferson, a/k/a "Buster" ("Petitioner") was indicted on several counts alleging, inter alia, various crimes surrounding the activities of the 6-O-Tre street gang, drug trafficking, attempted murder, and murder. After a six-week jury trial, Petitioner was convicted on six counts of murder, two counts of attempted murder, running a continuing criminal enterprise ("CCE"), drug conspiracy, various other drug charges, and as a felon in possession of a firearm. Petitioner appealed his conviction on several grounds. The convictions and sentence were affirmed, however. United States v. Jefferson, 215 F.3d 820 (8th Cir. 2000) cert. denied, 531 U.S. 911 (Oct. 2, 2000). Petitioner then filed this petition. The Court appointed counsel to Petitioner and held an evidentiary hearing in this matter.
DISCUSSION
Petitioner has filed several memoranda in support of his current petition. Based on those filings, Petitioner's claims currently before this Court can be summarized as follows:
1. The facts alleged in the Indictment and presented at trial were insufficient to establish federal jurisdiction for counts charged under 18 U.S.C. § 1959 and Petitioner's constitutional rights were violated by a fundamentally defective Indictment under 18 U.S.C. § 1959.
2. Trial counsel was ineffective because he failed to interview and call as witnesses at trial witnesses Wilson Tyrone Hill and Leonard Young.
3. Trial counsel was ineffective for not properly advising Petitioner regarding the scope of cross-examination if he were to testify at trial.
4. Trial counsel was ineffective for not submitting valid jury instructions for the CCE count.
5. Trial counsel was ineffective because he failed to challenge or investigate wiretaps on movant.
6. Trial counsel was ineffective for not properly challenging the admission of the statement of Frank Adams and Ajani Brown in violation of the Federal Rules of Evidence, Rule 801(d)(2)(E).
7. Petitioner's convictions violated Petitioner's constitutional rights because the convictions were obtained by using defective jury instructions.
8. Petitioner's constitutional rights were violated as to Count 18 because the element of possession was never established and the Indictment was broadened through the jury instructions.
9. Petitioner's constitutional rights were violated by his sentence on Count I because the facts raising the statutory minimum to life were not charged in the Indictment, submitted to the jury, or proven beyond a reasonable doubt.
10. Petitioner's constitutional rights were violated when the Court allowed the introduction of evidence that was obtained in violation of the Fourth Amendment.
11. Sentencing enhancement 3B1.1(a) was invalid and should not have been applied at sentencing.
12. Trial judge violated Petitioner's Fourteenth Amendment rights by threatening Defendant's witness.
13. Whether non-promulgated penal regulatory statutes title 21 U.S.C. § 841(a)(1) and § 846 legally constitutes the Court's jurisdiction for sentencing purposes and proves the knowledge of the defendant for purposes of the conspiracy as being unlawful.
At the evidentiary hearing on May 16, 2002, Petitioner, Tyrone Hill, and Leonard Young testified in this matter.
A prisoner in federal custody who claims that his sentence violates the Constitution or the laws of the United States may petition to have his sentence vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255. A § 2255 petition is not a substitute for appeal. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Failing to raise an issue on direct appeal bars a petitioner from raising that issue for the first time in § 2255 petition. Matthews v. U.S., 114 F.3d 112, 113 (8th Cir. 1997). Unless there is a change in law or newly discovered evidence, a petitioner may not raise issues in a § 2255 petition that were argued and rejected on appeal. English v. U.S., 998 F.2d 609, 613 (8th Cir. 1993). Collateral relief under § 2255 may by available for claims not raised on direct appeal if (1) such claims involve jurisdictional or constitutional issues or involve a fundamental defect that inherently results in a complete miscarriage of justice, and (2) the petitioner demonstrates cause for the procedural default and resulting prejudice. Anderson, 25 F.3d at 706. If the petitioner cannot show cause for the default, the court may grant the petition only if a fundamental miscarriage of justice has occurred or the petitioner is actually innocent of the crime for which he was convicted. Id. at 706-07. With these standards as the guide, the Court will address Petitioner's claims in turn.
1. The facts alleged in the Indictment and presented at trial were insufficient to establish federal jurisdiction for counts charged under 18 U.S.C. § 1959 and Petitioner's constitutional rights were violated by a fundamentally defective Indictment under 18 U.S.C. § 1959.
Petitioner first claims that there is insufficient evidence to establish jurisdiction over counts 48-59 of the Third Superseding Indictment against him because there is no showing of a substantial effect on interstate commerce with respect to those counts. This claim was not raised on direct appeal, and therefore, Petitioner must show cause and prejudice for the default. Here, Petitioner has failed to demonstrate why he did not raise this issue on appeal. Even if he could show cause for the default, this claim fails because Petitioner cannot show prejudice. Moreover, Petitioner's argument is substantively without merit. Count 48 of the Third Superseding Indictment charged Petitioner with conspiracy to murder Londwea Brown, and specifically stated that the 6-O-Tre gang was an enterprise "which was engaged in, and the activities of which affected, interstate and foreign commerce." This language was incorporated by reference in all of the § 1959 counts.
Petitioner argues that the evidence was insufficient to prove the requisite effect on interstate commerce. Nevertheless, Petitioner made this same argument on direct appeal, and may not raise it again now. Even assuming he could raise this argument again, sufficient evidence was presented at trial to show the requisite effect on interstate commerce. The 6-O-Tre gang was involved in an interstate drug conspiracy. The evidence showed that on many occasions, drugs were shipped or carried from California to Minnesota. The evidence also shows that the § 1959 charges of murder and attempted murder were committed in furtherance of this conspiracy.
Finally, Petitioner argues that the Indictment charging him with the murders of the five Coppage children was defective because it failed to charge arson. Petitioner also alleges that the Indictment was then broadened by the corresponding jury instruction. These claims were not raised on direct appeal and thus have been waived. At any rate, these arguments are without merit. Count 48 alleges "The 6-O-Tre gang, through its members and associates, engaged in racketeering activity as defined in Title 18, United States Code, Sections 1959(b)(1) and 1961(1), namely, acts involving murder and arson in violation of Minnesota law (Minn. Stat. §§ 609.185, 609.17, 609.561 and 609.05) and narcotics trafficking in violation of Title 21, United States Code, Sections 841(a)(1) and 846." Counts 50-58 incorporated these allegations by reference. In sum, Petitioner had ample notice of the charges against him, including the government's theory that the murders were committed by arson. Furthermore, the jury instruction setting forth the elements of arson did not broaden the Indictment because arson was alleged in the Indictment. Accordingly, based on the foregoing, Petitioner's claim fails.
2. Trial counsel was ineffective because he failed to interview and call as witnesses at trial witnesses Wilson Tyrone Hill and Leonard Young.
In order to prevail on a claim for ineffective assistance of counsel, a petitioner has the burden of showing that counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, the Petitioner must demonstrate that (1) counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) counsel's deficient performance prejudiced the defense. Id. at 687. To show prejudice, Petitioner must demonstrate that "there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A strong presumption exists that, considering all the circumstances, counsel's performance was competent. As such, a court must give deference to counsel's decisions regarding strategy and tactics. Id. at 689.
Petitioner argues that his trial counsel, Paul Engh ("Engh"), was ineffective because he failed to interview and call as trial witnesses Wilson Tyrone Hill ("Hill") and Leonard Young ("Young"), both of whom, he argues, would have exonerated him on counts 48-58 of the Third Superseding Indictment.
Wilson Tyrone Hill
At the evidentiary hearing, Engh explained his reasons for not calling Hill as a witness. Engh first explained that Hill would not talk to Engh's investigator despite several attempts. (See Clerk Doc. No. 1332, Tr. of Ev. Hr'g at 9-10.) When Hill testified, he confirmed that he would not speak with the investigator. (Tr. at 89.) Hill testified that he refused to be interviewed because "I didn't want no part to do with nothing." (Id.) Hill now claims that he was willing to testify all along. Nevertheless, this is not what Hill expressed to Engh's investigator prior to trial. Engh testified, "I was not willing to put Hill on unless he talked to us first. I needed some control." (Tr. at 12.)
Engh also testified that he likely would not have put Hill on the stand anyway because of a letter Hill had written to a fellow 6-O-Tre gang member indicating that he was "buried [in prison] for the love of the mob." (Tr. at 13-14; see also Tr. 47, Gov't Ex. 2 (Hill letter). For these reasons, Engh had a legitimate, strategic decision founded on sound evidence for not calling Hill as a witness. Accordingly, it cannot be said that Engh's performance fell below the objective standard of reasonableness.
Even if Petitioner could somehow show deficient performance, he cannot establish prejudice. The government is correct in its argument that Hill's testimony would have helped support its theory more than Petitioner's theory. The government's theory of the case was that Petitioner ordered the murder of Londwea Brown (Brown") as payback for Brown having pulled a gun on 6-O-Tre gang member Albert Hill, Wilson Tyrone's brother. (Trial Tr. 2851-52.) Testimony at trial showed that Wilson Tyrone Hill had a private conversation with Petitioner just moments before Wilson Tyrone Hill pulled out a gun in the middle of a crowded party and shot Brown 12 times in the back. (Trial Tr. XII at 2162.) Hill confirmed much of the government's theory at the evidentiary hearing, admitting that (1) he shot Brown because he had pulled a gun on his brother, Albert, (2) Petitioner had a private conversation with him at the party just before he shot Brown 12 times in the back, and (3) he killed Brown for the love of the mob, the 6-O-Tre gang. (Tr. at 94, 96, and 98.)
Nevertheless, at the evidentiary hearing, Hill denied that Petitioner ordered him to kill Brown. As an initial matter, the Court notes that Hill offered this version of the story only after Petitioner sent him what the government describes as a "script" in affidavit form of what he should say at the hearing. (Tr. at 99.) Hill could not produce this script at the hearing, claiming that he had already destroyed it. (Id. at 93-4.) Moreover, several factors suggest that it is extremely unlikely a jury would have believed the testimony that he acted on his own anyway, in light of all the circumstances and Hill's own credibility. First, Hill falsely denied that Petitioner was the leader of the 6-O-Tre gang. (Tr. at 94, 98.) Indeed, the evidence at trial overwhelmingly established that Petitioner was the leader of the gang. Hill also admitted to lying under oath on other occasions. (Tr. at 98.) In fact, when he pled guilty in his own case, Hill claimed that he shot Brown because she had pulled a gun on him, not his brother Albert.
For all these reasons, the Court concludes that Engh's decision not to call Hill was objectively reasonable, and Petitioner cannot otherwise establish prejudice.
Leonard Young
Petitioner also argues that Engh's failure to call Leonard Young as a witness constitutes ineffective assistance of counsel. Again, at the evidentiary hearing, Engh explained his reasons for not calling Young. First, that Cedric Manning ("Manning") was the intended victim and Robert Otto was the unintended victim of the drive-by shooting could not be disputed. (Tr. at 18.) Both Leonard Young and Duddy Jefferson ("Duddy"), active participants in the drive-by shooting, pled guilty in state court to that shooting. Engh testified that because of the way the case was postured, Young was not a critical witness in his opinion. (Id.) Also, Duddy and Petitioner, half-brothers, were trying to present a unified defense. (Tr. at 19.) Engh believed that calling Young as a witness "could have just buried [Duddy] without really helping [Petitioner] that much." (Id.) Furthermore, Young had a prior inconsistent statement from the time of his arrest when he falsely denied any involvement in the drive-by shooting and denied even knowing Duddy. (Tr. at 48-49; see also Tr. at 59-60.)
In addition, Petitioner has raised this argument with 20/20 hindsight. Indeed, Petitioner did not testify that at the time of the trial, he told Engh to call Young as a supporting witness, and Engh refused. There is even evidence that Petitioner was in fact given the opportunity to discuss and determine who to call as witnesses, and to review Engh's opinion about who to call as witnesses. (Tr. at 67.)
Moreover, Petitioner is unable to demonstrate that the outcome would have been different had Young testified. First, the five-year statute of limitations on the drive-by shooting had not run at the time of Petitioner's trial in 1998. Had Young testified, his testimony could have been used against him in a federal prosecution under 18 U.S.C. § 1959, the statute under which Petitioner and Duddy were prosecuted for the drive-by shooting. Second, Young's testimony would have been impeachable. Young's testimony that he committed the drive-by shooting by himself was inconsistent with his 1995 post-arrest statement in which he denied any involvement in the drive-by shooting. (Tr. at 109; see also Gov't Ex. 5.) Young's testimony to this effect was also inconsistent with Duddy's guilty plea in state court to the same drive-by shooting that he was an active participant. Finally, Young's claim that he shot Manning because Manning had previously robbed him was something he had never revealed to authorities. (Gov't Ex. 5; Tr. 113-14.) Engh concluded that any testimony by Young at trial would have been "a wash." (Tr. at 20.)
Finally, the Government argues that Young's claim that Petitioner never instructed him to shoot Manning was not necessarily at odds with the Government's theory of the case. At trial, the Government showed that Duddy told Young to shoot Manning. The evidence also demonstrated that Duddy acted under the direction of Petitioner, making Petitioner liable for the shooting as well. The Government contends that it never claimed that Petitioner directly told Young to shoot Manning.
Based on the foregoing, the evidence sufficiently support's Engh opinion and his decision not to call Young as a witness. The Court concludes that Petitioner has not established that Engh's decision not to call Young was objectively unreasonable or that he was ultimately prejudiced by that decision.
3. Trial counsel was ineffective for not properly advising Mr. Jefferson regarding the scope of cross-examination if he were to testify at trial.
Petitioner claims that Engh failed to advise him correctly on his right to testify at trial. In his § 2255 petition, Petitioner claims that he wanted to testify at trial only about the Coppage murders and nothing else. This claim is consistent with what he told the Court at the time of trial. (Trial Tr. at 3636.) At the evidentiary hearing and in his most recent brief, Petitioner has altered his claim. Petitioner now argues that he informed trial counsel that he wanted to testify regarding all the violent crimes, not just the Coppage murders, (counts 48-59), but not the drug crimes (counts 1-2, 8, 10-14). Petitioner asserts that Engh told him that if he took the witness stand on his own behalf, he would be subject to cross examination on the drug crimes as well as the violent crimes. Petitioner claims that as a result of Engh's advice, he decided not to testify.
Petitioner bases his argument on Fed.R.Evid. 104(d). Rule 104 governs the admissibility of preliminary questions, which are described as questions "concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence . . ." Rule 104(d) provides "the accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case."
Contrary to Petitioner's understanding, Rule 104(d) does not stand for the proposition that Petitioner can pick and choose what he will testify to during his criminal trial. Instead, Rule 104(d) governs testimony at preliminary hearings.
The rules governing testimony at trial provide that cross-examination is generally limited to the subject matter of the direct examination and matters affecting the credibility of the witness. Fed.R.Evid. 611(b). However, Rule 611(b) also provides the court discretion to permit inquiry into additional matters as if on direct examination. Engh was aware of this rule. (Tr. at 31.) Thus, if Petitioner had taken the stand, there was no guarantee that the government would not have obtained permission from this Court to inquire into additional matters. In this case in particular, the drug trafficking counts were inextricably intertwined with the violent crime counts. See Jury Instruction Nos. 55, 56, and 59. Engh was also aware of this fact, as "the racketeering enterprise was . . . the gang and the gang was funded through crack cocaine and cocaine sales . . . ." (Tr. at 30; see also Tr. at 52-5.) The organized, interstate drug trafficking activity was an element of each of the violent crimes. (Tr. at 52-4; Gov't Ex. 4.) Because of this relationship between the drug trafficking counts and the violent crime counts, there is a likelihood that cross-examination on the drug trafficking counts may have been permissible. Engh was particularly aware that the defense had been given considerable latitude in cross-examining the government's witnesses at trial and expected that the government would be given the same latitude during its cross-examination of defense witnesses. (Tr. at 31.) Accordingly, for all these reasons, counsel's advice to Petitioner was sound and reasonable.
At any rate, Petitioner has not shown how counsel's advice prejudiced him. There is little merit in Petitioner's claim that being informed of the risk that he could be cross-examined on the drug trafficking activity altered his decision to testify. Petitioner admitted at the evidentiary hearing "as far as the drugs it was ridiculous. I didn't want to dispute that." (Tr. at 70.) As the government points out, if their case on the drug counts was so overwhelming that Petitioner did not want to dispute it, why would he not be willing to be cross-examined about drugs at trial? Moreover, Petitioner testified that he would have done nothing more than offer a general denial that he ordered or participated in the violent crimes, except for the shooting of Willie Hart in Count 59, as to which he would have taken the Fifth Amendment. (Tr. at 71-74.) That general denial would have added nothing to his defense, the jury instruction that by pleading guilty, Petitioner denied the government's charges, or Engh's closing argument that Petitioner was not involved in the violent crimes. Absent a showing of prejudice, Petitioner cannot succeed on this claim.
4. Jury instructions for the CCE count
First, Petitioner argues that Engh was ineffective because he never submitted or requested a jury instruction requiring the jury to unanimously agree on the three predicate offenses supporting the continuing criminal enterprise count. Petitioner made a similar argument on direct appeal. Then, Petitioner argues that this Court failed to instruct the jury that it must unanimously agree on which three or more predicate acts form the basis for the CCE conviction. The Eighth Circuit found that any error was harmless "because the jury convicted Buster Jefferson . . . of more than three predicate federal narcotics offenses." U.S. v. Jefferson, 215 F.3d 820, 823 (8th Cir. 2000). This claim is merely a variation on his prior argument that was raised and rejected by the Eighth Circuit. Accordingly, Petitioner may not raise it again now. English, 998 F.2d at 612-13. At any rate, it is clear that Petitioner cannot establish prejudice on this claim.
Similarly, Petitioner's argument that the jury should have been required to itemize in a special verdict form the predicate felony drug offenses supporting the CCE conviction fails for the same reasons.
Petitioner argues that some of the drug transactions the government proved at trial cannot be used as predicate CCE offenses because they were not specific counts of the Indictment and he did not have sufficient notice of them. Petitioner argues that a conviction for aiding and abetting a felony drug offense may not serve as a CCE predicate. Petitioner nevertheless failed to raise these claim on direct appeal, and therefore, he may not raise them now.
Finally, Petitioner argues that the Court erred by failing to require the jury to specifically name the five individuals Petitioner was to have supervised. First, Petitioner raised this claim on direct appeal, and therefore he may not renew it here. Moreover, the Eighth Circuit has already held that such a special interrogatory on this issue is not required. U.S. v. Jelinek, 57 F.3d 655, 659 (8th Cir. 1995).
Petitioner also argues that the evidence was not sufficient to demonstrate that he supervised at least five people. Petitioner made that same argument on direct appeal and cannot raise that issue again in this petition. At any rate, the evidence established that Petitioner supervised at least seven people: David Pinkston, Sharita Hart, Shanik Rodriguez, Rebecca Schumacher, Raeanne Makinen, Andre Roberson, and Duddy Jefferson. (Trial Tr. at 217-26, 656-61, 704-12, 871-75, 922-32, 1115, 1185, 2470-81, 2872-75, 3594-3600, and XII 2170.)
As Petitioner failed to show that any of the instructions given were improper, he cannot show that counsel's failure to object to these instructions or request alternative instructions was unreasonable, or that he was prejudiced as a result. Accordingly, this aspect of his ineffective assistance of counsel claim fails.
5. Trial counsel was ineffective because he failed to challenge or investigate wiretaps on movant.
Petitioner raises an ineffective assistance of counsel claim on the basis that counsel failed to challenge or investigate the legality of the wiretaps. As an initial matter, the Court notes that Petitioner's counsel did challenge the wiretap application by joining in the motion of a co-defendant. The legality of the wiretap was litigated and addressed in Magistrate Judge Lebedoff's Report and Recommendation ("RR") filed May 18, 1998. This Court reviewed that motion independently, and ultimately adopted the RR in its Order dated June 5, 1998. Petitioner has not demonstrated how counsel's performance was deficient for not filing a separate motion challenging the wiretap application, or even how he was prejudiced by counsel's failure to do so.
6. Trial counsel was ineffective for not properly challenging the admission of the statement of Frank Adams and Ajani Brown in violation of the Federal Rules of Evidence, Rule 801(d)(2)(E).
Petitioner claims that Engh was ineffective for not challenging the admissibility of the testimony of Frank Adams and Ajani Brown regarding admissions Petitioner made about his involvement in the Coppage murders. With respect to Ajani Brown, Petitioner challenged the admissibility of his testimony on direct appeal. Petitioner lost that challenge. The Eighth Circuit held that Ajani Brown's testimony that he (1) overheard Willie Hart talking on the telephone with Petitioner concerning the firebombing of the Coppage residence, and (2) overheard Willie Hart relay to Duddy Jefferson that they had killed the wrong people, was admissible under Rule 801(d)(2)(E). Jefferson, 215 F.3d at 824. The Eighth Circuit explained that these statements were not hearsay, as they were made by co-conspirators during the course of and in furtherance of the conspiracy, notwithstanding the fact that they described past events. Id. Accordingly, Petitioner has failed to demonstrate cause on this issue. Even if Petitioner could demonstrate cause, he has failed to show prejudice.
Petitioner also argues that the testimony of Frank Adams regarding Petitioner's admissions to him should not have been admitted as co-conspirator statements, and that Engh was ineffective for failing to challenge it. Petitioner's argument, however, is without merit. Petitioner's confession is a party admission, admissible under Fed.R.Evid. 801(d)(2)(A). Petitioner's confession was admitted under this rule, not as a co-conspirator statement.
7. Petitioner's convictions violated Petitioner's constitutional rights because the convictions were obtained by using defective jury instructions.
Petitioner raises several challenges to various jury instructions. As the Court has noted before, Petitioner failed to raise these challenges on direct appeal, and therefore, he may not assert these challenges now. Even if he could assert these challenges at this time, they would be rejected. First, relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Petitioner challenges the jury instructions with respect to drug quantity. An Apprendi challenge, however, may not be asserted in a § 2255 petition. U.S. v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001). Moreover, overwhelming evidence was presented at trial of the drug quantities involved in this case.
Next, Petitioner argues that the Court should not have given the Pinkerton co-conspirator liability instruction in connection with the Coppage murders. Petitioner argues that he was indicted as a principal rather than as a co-conspirator. However, Petitioner is incorrect, as he was indicted for both conspiracy to murder Andre Coppage as described in Count 50 and for murdering the five Coppage children as described in Counts 51-55.
Petitioner then challenges the Court's jury instruction number 62 on transferred intent as erroneous. Transferred intent, however, applies in a § 1959 prosecution. U.S. v. Concepcion, 983 F.2d 369, 381-82 (2d Cir. 1992). Finally, Petitioner challenges the Court's jury instruction with respect to reasonable doubt and his counsel's failure to object to it. Apparently, Petitioner takes issue with the instruction's reference to the jurors' "most important affairs." Petitioner cites no authority in support of his argument that the instruction is erroneous. Indeed, the instruction is proper, and trial counsel was not deficient for not objecting to it.
As Petitioner failed to show that any of the instructions given were improper, he cannot show the requisite prejudice. Accordingly, this aspect of his habeas petition has no merit.
8. Petitioner's constitutional rights were violated as to Count 18 because the element of possession was never established and the Indictment was broadened through the jury instructions.
Petitioner also challenges the jury instruction on possession, which defines possession of a firearm to include constructive possession. Petitioner failed to raise this claim on direct appeal, and therefore, he may not assert it now. Even if he could assert this claim now, it is without merit. Possession includes constructive possession, and the government's theory at trial was that of constructive possession. (Trial Tr. 46.) Accordingly, the jury instruction was proper, and Petitioner can show no prejudice as a result.
9. Petitioner's constitutional rights were violated by his sentence on Count I because the facts raising the statutory minimum to life were not charged in the Indictment, submitted to the jury, or proven beyond a reasonable doubt.
Petitioner next claims that under Apprendi, his life sentence was unconstitutional because "the facts that raised the statutory mandatory minimum to life were not charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt." Again, the Eighth Circuit has made clear that an Apprendi challenge may not be brought in a § 2255 petition. Moss, 252 F.3d at 1001. Moreover, Petitioner's life sentence did not result from an enhancement. Rather, the CCE count carried a maximum statutory term of life in prison. 21 U.S.C. § 848(a). Therefore, Apprendi is not applicable.
10. Petitioner's constitutional rights were violated when the Court allowed the introduction of evidence that was obtained in violation of the Fourth Amendment.
Petitioner argues that the search of 3544 Portland Avenue South and the stop of a vehicle in which he was riding violated the Fourth Amendment. Petitioner already litigated these claims in the district court and lost. Indeed, these claims were addressed in Magistrate Judge Lebedoff's Report and Recommendation ("RR") filed May 18, 1998. This Court reviewed those argument independently, and adopted the RR in its Order dated June 5, 1998. Petitioner did not raise his claim again on direct appeal, and thus, he has waived those arguments.
11. Sentencing enhancement 3B1.1(a) was invalid and should not have been applied at sentencing
Petitioner argues that his four-level sentencing enhancement for being an organizer or leader of a criminal activity was error. Petitioner, having failed to raise this argument on direct appeal, procedurally defaulted this claim and may not raise it here. Auman v. U.S., 67 F.3d 157, 160-61 (8th Cir. 1995) (noting that sentencing guideline claims not properly brought under § 2255). This claim, therefore, cannot form the basis for any relief.
12. Trial judge violated Petitioner's Fourteenth Amendment rights by threatening Defendant's witness.
Petitioner argues that his Fourteenth Amendment rights were violated when the Court advised one of Petitioner's proposed witnesses, Barbara Brown, of her Fifth Amendment rights. According to trial testimony, Barbara Brown was present when her 13-year old son Willie Hart and Duddy Jefferson returned home after setting fire to the Coppage residence and discussed, in her presence, having done it. Apparently, she warned Willie Hart and Duddy to "watch who they were talking around because they killed some kids." (Trial Tr. at 1739.) Defendant proposed to call Barbara Brown as a witness. The Court then advised her of her Fifth Amendment rights and appointed counsel to represent her, as her statements demonstrated that she was at least an accessory after the fact to murder. (Trial Tr. 3178-79). Upon counsel's advice, Barbara Brown thereafter asserted her Fifth Amendment rights and did not testify. (Trial Tr. at 3301).
First, the Court notes that Petitioner waived this claim by failing to raise it on direct appeal. At any rate, there is no evidence that the Court threatened Barbara Brown not to testify. Rather, the record demonstrates that this Court properly advised Barbara Brown of her rights in the proceeding. Finally, Petitioner has alleged no prejudice from Barbara Brown's decision to invoke the Fifth Amendment. Accordingly, Petitioner's claim that his Fourteenth Amendment rights were violated must fail.
13. Whether non-promulgated penal regulatory statutes Title 21 U.S.C. § 841(a)(1) and § 846 legally constitutes the Court's jurisdiction for sentencing purposes and proves the knowledge of the defendant for purposes of the conspiracy as being unlawful.
Petitioner also brings a motion pursuant to Fed.R.Crim.P. 12(b)(2), wherein he challenges this Court's jurisdiction on the basis that Title 21 U.S.C. § 841(a)(1) and § 846 are non-promulgated penal regulatory statutes. First, Petitioner has failed to show cause for the default. At any rate, Petitioner's challenge to these statutes is without merit. The case on which Petitioner relies for his argument, U.S. v. Vazquez, 271 F.3d 93 (3rd Cir. 2001), does not stand for the proposition Petitioner suggests. These statutes have had the force of law since their enactment, and Petitioner cites no legitimate authority to the contrary.
14. Motion to "Join Appellant's Brief" of Robert James Jefferson
Petitioner moves to join in the brief of his half-brother and co-defendant Robert James Jefferson a/k/a "Duddy", pursuant to Fed.R.App.P. 28(i). The Court notes that the rules governing appellate procedure have no bearing in this proceeding. Additionally, as detailed in the Opinion of this Court addressing the habeas petition of Robert James Jefferson, joining the brief filed by him would be futile. There being no basis upon which to grant this relief, the motion is denied.
CONCLUSION
Accordingly, based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
A. Robert George Jefferson's Motion pursuant to 28 U.S.C. § 2255 (Clerk Doc. No. 1252) is DENIED;
B. Robert George Jefferson's Motion pursuant to Fed.R.Crim.P. 12(b)(2) (Clerk Doc. No. 1310) is DENIED; and
C. Robert George Jefferson's Motion to "Join Appellant's Brief" of Robert James Jefferson (Clerk Doc. Nos. 1334 and 1343) is DENIED.