Opinion
8:99CR194
April 26, 2002
MEMORANDUM AND ORDER
Before the court are: (1) Filing No. 175, the Motion to Vacate Sentence and Conviction Pursuant to 28 U.S.C. § 2255 ("2255 motion"); and (2) Filing No. 177, the Praecipe for relief under 28 U.S.C. § 2255, filed by the defendant, Roberto Martinez. Upon an initial review of the defendant's § 2255 motion, I conclude that the motion should be denied.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court states the following regarding initial review:
(b) Initial consideration by judge. The motion, together with all the files, records, transcripts, and correspondence relating the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.
After a jury found the defendant guilty of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) as charged in the indictment, I sentenced him to the custody of the Bureau of Prisons for seventy-seven months, to be followed by five years of supervised release. Filing No. 144. The Eighth Circuit Court of Appeals affirmed the defendant's conviction and sentence, holding that the record contained sufficient evidence to warrant his conviction. Filing No. 124. See United States v. Ortiz, 236 F.3d 420 (8th Cir. 2001).
In his § 2255 motion, the defendant asserts the following grounds for relief:
Claim #1. The indictment was fatally flawed because defendant did not receive fair notice of the severity of the penalty to which he was exposed under 21 U.S.C. § 841(b);
Claim #2. When the court, upon the government's request, gave a jury instruction on aiding and abetting under 18 U.S.C. § 2, the indictment was thereby constructively amended, in violation of the defendant's right to be charged by a grand jury with the offense;
Claim #3. The trial court erroneously sentenced the defendant upon a base offense level of 26 rather than 12;
Claim #4. The defendant did not receive effective assistance of counsel at all stages of the trial and on appeal, in that counsel failed to raise the foregoing issues.
DISCUSSION
Sufficiency of IndictmentIn claims one and two, the defendant challenges the sufficiency of the indictment in two respects. First, the indictment failed to provide notice of the penalty for the offense charged, i.e., distribution of cocaine. Second, the indictment failed to provide notice that the defendant was subject to a charge of aiding and abetting. Upon review of the record and the applicable law, I find that the indictment was sufficient.
Regarding notice of the possible penalty for a violation of 21 U.S.C. § 841(a), an indictment "must be `a plain, concise and definite written statement of the essential facts constituting the offense charged.'" United States v. McKnight, 799 F.2d 443, 444 (8th Cir. 1986) (citing United States v. Cartano, 534 F.2d 788, 791 (8th Cir. 1976)). An indictment "will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant is convicted." United States v. Carter, 270 F.3d 731, 736 (8th Cir. 2001). Upon a challenge to an indictment after a guilty verdict, the indictment will be held sufficient unless the indictment cannot, within reason, be construed to charge a crime. Id. In the defendant's case, the indictment alleged the essential facts and elements of the offense and thus properly informed the defendant of the charges against him. The indictment's lack of reference to the statute governing the penalty does not render it defective. See id. (indictment that failed to set out the penalty of the offense sufficient).
Next, the defendant argues that the indictment improperly failed to charge him with aiding and abetting a crime. The defendant's argument is based on his mistaken belief that in order to be found guilty of the offense of aiding and abetting a crime, the government must use the precise language found in 18 U.S.C. § 2 in the charging document. However, the law is to the contrary. A "defendant may be convicted of aiding and abetting under section 2 even though he may not have been formally charged in that capacity." United States v. Clark, 980 F.2d 1143, 1145 (8th Cir. 1992) (citing McKnight, 799 F.2d at 444). The reasoning behind that rule is that "section 2 does not create a specific offense, it simply makes those who aid and abet in a crime punishable as principals." Clark, 980 F.2d at 1145. Thus, an aiding and abetting charge "is an alternative charge in every count, whether explicit or implicit." Id.
In this case, the indictment properly charged the defendant and his codefendants with distributing cocaine in violation of 21 U.S.C. § 841 (a)(1). "One who has been indicted as a principal may be convicted on evidence showing that he merely aided and abetted the commission of the offense." Clark, 980 F.2d at 1145. Thus, the indictment notified the defendant both that he had been charged as a principal for the offense of distribution of cocaine, and that implicit in the principal charge was the additional charge of aiding and abetting the distribution of cocaine. The district court properly instructed the jury on both the principal offense, distribution of a controlled substance, and aiding and abetting. Therefore, the indictment provided the defendant with sufficient notice of the elements of the offense for which the jury found him guilty. Accordingly, claims one and two of the defendant's § 2255 motion are denied.
Apprendi Claim
The defendant explains in his brief that his third claim is based on the principles set forth by the United States Supreme Court in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Specifically, the defendant argues that his sentence should be vacated because the indictment did not state a drug quantity, and the jury did not decide a drug quantity beyond a reasonable doubt. However, the Eighth Circuit has ruled repeatedly that Apprendi does not afford relief retroactively to proceedings on collateral review. See, e.g., Dukes v. United States, 255 F.3d 912, 913-14 (8th Cir. 2001):
Although we retroactively apply Apprendi in cases on direct appeal, United States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001), this court has recently concluded that Apprendi presents a new rule of constitutional law that is not of `watershed' magnitude and, consequently, petitioners may not raise Apprendi claims on collateral review. [United States v.] Moss, 252 F.3d 993, 995 [(8th Cir. 2001)] (relying upon Teague v. Lane, 489 U.S. 288 . . . (1989) (plurality)). . . .
While the Supreme Court has not spoken on the issues decided in Moss, we are bound by that decision. United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997) ("One panel may not overrule another.") . . . . [W]e find no way around Moss' prohibition on retroactive application.
Accord Jarrett v. United States, 266 F.3d 789, 791 (8th Cir. 2001). Therefore, the defendant's claim that the indictment did not charge drug quantity and a jury did not determine drug quantity beyond a reasonable doubt may not be raised on collateral review.
In addition, even if Apprendi could be raised in a § 2255 proceeding, the Eighth Circuit's conclusions regarding codefendant Fernando Ortiz apply equally to Martinez.
Mr. Ortiz also argues that the trial court erred when it declined to submit the question of drug quantity to the jury. In making this argument, he relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that `any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Because the maximum penalty for an offense under 21 U.S.C. § 841(a)(1) increases according to drug quantity, Mr. Ortiz contends that the trial court was obligated under Apprendi to let the jury determine the amount of cocaine attributable to him. We disagree. We have explained previously that `[t]he rule of Apprendi only applies where the non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the jury's verdict,' United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). In this case, the trial court gave Mr. Ortiz a sentence of 63 months of imprisonment, which is less than the 20-year maximum that the statute authorizes. See 21 U.S.C. § 841(b)(1)(C). Apprendi therefore has no application here.
United States v. Ortiz, 236 F.3d at 422 (8th Cir. 2001).
Thus, because the lowest maximum sentence for distribution of cocaine is 20 years under 21 U.S.C. § 841(b)(1)(c), and because Martinez received a sentence within the lowest statutory range for his offense of conviction, the principles announced in Apprendi would not afford him any relief. Accordingly, claim three of the defendant's § 2255 motion is denied.
Ineffective Assistance of Counsel
The defendant argues that he received ineffective assistance of counsel on appeal from his conviction because his attorney failed to raise the arguments presently alleged in claims one through three in his § 2255 motion. The Supreme Court has instructed that there exists a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668, 689-90 (1984).
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'466 U.S. at 689.
A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.466 U.S. at 690.
A defendant bears the burden of proving both that counsel's performance was deficient and that the defendant suffered prejudice as the result of counsel's ineffective assistance. To establish prejudice, a defendant must demonstrate that absent counsel's errors, there exists a reasonable probability that the result of the proceeding would have been different. See Evans v. United States, 200 F.3d 549, 550 (8th Cir. 2000) (citing Strickland).
The Strickland test has two parts: whether counsel's performance was in fact deficient and, if so, whether the defendant was prejudiced by the inadequate representation. If we can answer `no' to either question, then we need not address the other part of the test. Under the first part of the Strickland test, we consider counsel's performance objectively and gauge whether it was reasonable `under prevailing professional norms' and `considering all the circumstances.' We look at counsel's challenged conduct at the time of his representation of the defendant and we avoid making judgments based on hindsight.
Hal Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (internal citations omitted).
As discussed herein, claims one, two and three of the defendant's § 2255 motion are without merit. Because the claims lack merit, there can be no prejudice from appellate counsel's failure to raise them on appeal. Accordingly, the defendant's claim based on ineffective assistance of counsel is dismissed.
THEREFORE, IT IS ORDERED:
(1) That defendant's Motion to Vacate Sentence and Conviction Pursuant to 28 U.S.C. § 2255, Filing No. 175, is denied;
(2) That the Praecipe for relief, Filing No. 177, is denied as moot;
(3) That this action is summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts; and
(4) That a separate judgment of dismissal with prejudice will be entered in accordance with this Memorandum and Order.