Opinion
Criminal Action No. 97-334-04 (CKK), Civil Action No. 02-095 (CKK).
March 24, 2005
MEMORANDUM OPINION (March 24, 2005)
Presently before the Court is Defendant's Motion to Vacate Sentence and Conviction by Person in Federal Custody under 28 U.S.C. § 2255 ("Def.'s Mot.") [332]. On May 22, 1998, Defendant Walter Mathis ("Defendant") was convicted by a jury of conspiring to distribute and possess with the intent to distribute heroin and cocaine, for which Judge Thomas A. Flannery sentenced Defendant to 235 months imprisonment to be followed by five years of supervised release. See Def.'s Mot. at 1. On appeal, Defendant's conviction was upheld. See United States v. Mathis, 216 F.3d 18, 29 (D.C. Cir. 2000). His case, however, was remanded to Judge Flannery for resentencing, upon which he revised Defendant's sentence to 210 months imprisonment to be followed by the same five years of supervised release. See id. at 27; Def.'s Mot. at 2.
Defendant now asks the Court to vacate his sentence on the ground that his Sixth Amendment right to effective assistance of counsel was violated when his attorney failed to call a critical witness during trial. See Def.'s Mot. at 5-10. Defendant also adopts the argument of co-defendant Eddie Mathis that "the [G]overnment violated his basic due process rights through the use of Eugene Matthews' testimony." Id. at 11. Finally, via a Supplemental Memorandum, Defendant contends that the sentence enhancements imposed by this Court violate his Sixth Amendment right to trial by jury under the logic of Blakely v. Washington. Suppl. Mem. [in] Supp. of Mot. to Vacate Sentence ("Def.'s Suppl. Mot.") at 1-2.
Upon review of Defendant's Motion, the Government's Opposition, and all additional briefs, along with the transcripts of Defendant's trial and the October 28, 2004, evidentiary hearing, the Court concludes that Defendant has failed to make out a claim of ineffective assistance of counsel. The Court further finds that Defendant's objection to the Government's use of Matthews' testimony has been procedurally defaulted and that the new rule announced in Blakely v. Washington, 124 S. Ct. 2531 (2004) (and recently clarified in United States v. Booker, 125 S.Ct. 738 (2005)) is not applicable to Defendant's collateral challenge.
These include: Pet.'s Reply to the Gov't Opp'n to his Mot. to Vacate his Conviction Pursuant to 28 U.S.C. § 2255 ("Def.'s Reply"), [Defendant's] Suppl. Mem. in Supp. [of] Mot. to Vacate Sentence ("Def.'s Suppl."), Gov't Opp'n to Def.'s Suppl. Mem. in Supp. of Mot. to Vacate, Set Aside or Correct Sentence ("Gov't Opp'n to Suppl."), Pet.'s Reply to the Gov't Opp'n to his Suppl. Mem. to Amend Sentence Under 28 U.S.C. § 2255 ("Def.'s Suppl. Reply"), Pet.'s Mem. Concerning the Hearing on his Mot. to Vacate his Conviction Pursuant to 28 U.S.C. § 2255 ("Def.'s Pre-Hearing Mot."), Pet.'s Post-Hearing Submission in Supp. of his Mot. to Vacate Sentence ("Def.'s Post-Hearing Mem."), and Gov't Final Argument Following the Hearing on Def.'s Mot. to Vacate Sentence and Conviction Pursuant to 28 U.S.C. § 2255 ("Gov't Post-Hearing Mem.").
I. BACKGROUND
The present motion arises out of a criminal case involving Defendant, his brother Eddie Mathis, and two additional co-defendants, Maurice Lee and Elias Rodriguez. At trial, the Government introduced evidence regarding a drug conspiracy — beginning in May, 1996 — in which all four men allegedly participated. Among the circumstantial evidence introduced against Defendant was a telephone bill belonging to Defendant found in co-defendant Lee's car when Lee was arrested, see Gov't Opp'n Ex. 5 at 311, business cards for "Chez Louise," printed with Defendant's name, see id. at 705, 706, a corporate American Express card for "Chez Louise" belonging to Defendant, see id. at 701, and an entry in Defendant's address book for "Maurice," see id. at 702.
Chez Louise, a "beauty salon" located at 402 Kennedy Street, N.W. in Washington, D.C., allegedly served as a front for Eddie Mathis' drug dealings. See Gov't Opp'n at 7.
The Government implied that "Maurice" referred to co-defendant Maurice Lee. See Gov't Opp'n at 7-8.
The sole testimony linking Defendant to the conspiracy came from Eugene Matthews, a witness with a lengthy criminal history who was cooperating with the Government in hopes of receiving a reduced sentence in a pending federal case. See Def.'s Mot. at 5. Matthews testified that, in September or October, 1996, he met with Eddie Mathis, "Peaches," and a man by the name of Larry Clemons, to consummate a $4,500 heroin transaction at an International House of Pancakes restaurant ("IHOP") in the Landover Mall. See Gov't Opp'n Ex. 1 ("Matthews Test.") at 127-131. "Peaches," Matthews testified, was a nickname for Defendant and it was "Peaches" who had physically given the ounce of heroin to Matthews on that day. See id. Additionally, Matthews implied during cross examination that he met Defendant "on Kennedy Street on several occasions" to carry out drug deals. See id. at 165.
The exact testimony given by Matthews on cross examination is as follows:
Q: . . . Was there a deal you had with [Eddie] Mathis that you can't remember where it happened?
A: There are several deals I had with [Eddie] Matthis I don't remember exactly where they happened.
Q: So you don't know where in the world in the city it happened, correct?
A: Well, sure I know they happened in — most of my dealings with him happened in various parts. They happened on Eastern Avenue and Central Avenue. I had to meet Peaches over there. I have met him up on Kennedy Street on several occasions.
Matthews Test. at 165.
At trial, the Government also introduced evidence regarding the "reverse sting" operation orchestrated by DEA agents that led to the arrest of Defendant and his brother Eddie. This evidence alleged that Defendant and Eddie conspired with cooperating federal inmate Peter Coley to arrange a drug transaction for November 5, 1997 (the "Coley Conspiracy"). See Def.'s Mot. at 3. The sham transaction proceeded as planned, culminating in the arrest of the two Mathis brothers. See id.
On the basis of the above evidence, the jury found Defendant guilty of conspiring to distribute and possess with the intent to distribute heroin and cocaine. See id. at 1. On appeal, however, Defendant argued that evidence regarding the Coley Conspiracy was in variance with the conspiracy actually charged in the indictment and that such evidence should have been excluded as "other crimes" evidence under Federal Rule of Evidence 404(b). See Mathis, 216 F.3d at 21. The Circuit Court partially agreed with Defendant, holding that "the [G]overnment's evidence regarding Coley and the November 5 reverse sting varied from the [Castro] conspiracy charged in the indictment," but that the district court "did not abuse its discretion in admitting evidence of the [Coley] conspiracy" because its "probative value . . . [was] not `substantially outweighed' by its prejudicial effect." Id. at 25-26; see also Fed.R.Evid. §§ 403, 404(b). The Circuit Court also declined to vacate Defendant's sentence on the grounds that the variance in evidence "did not substantially prejudice the [defendants]." Id.
The Circuit Court did remand Defendant's case to Judge Flannery for resentencing because, despite the fact that Defendant was not on parole at the time he committed the relevant offense, Judge Flannery mistakenly applied Section 4A1.1(d) of the United States Sentencing Guidelines when calculating Defendant's sentence. See Mathis, 216 F.3d at 27. This error was corrected and Defendant was resentenced to 210 months imprisonment, to be followed by five years of supervised release. See Def.'s Mot. at 210. Defendant's present motion does not contest any aspect of his sentencing, merely his conviction.
Defendant then petitioned the Supreme Court for a writ of certiorari. On January 8, 2001, the Supreme Court denied Defendant's petition. See Mathis v. United States, 531 U.S. 1099 (Jan. 8, 2001) (Mem.). Three days later, on January 11, 2001, the Supreme Court notified the D.C. Circuit Court of its denial. See Def.'s Opp'n Ex. C ("Circuit Ct. Docket"). On its docket, the Circuit Court did not distinguish between the two dates, noting only that, on "1/11/01," there was a "notice filed by Clerk, U.S. Supreme Court, informing this court that the petition for writ of certiorari is denied. . . ." Id. (capitalization altered).
Approximately three months after the Supreme Court declined to entertain Defendant's appeal, this Court appointed Defendant's present counsel, Mr. Edward Sussman, Esq., to take over Defendant's representation. See Def.'s Opp'n Ex. B (Order assigning new counsel). When Mr. Sussman received the Docket Summary of Defendant's case — which mentioned only that the D.C. Circuit had been informed of the Supreme Court's denial of certiorari on January 11, 2001 — Mr. Sussman claims that he assumed certiorari was denied on that date, and therefore noted on his calendar that Defendant had until January 11, 2002, to file a motion under 28 U.S.C. § 2255. See Def.'s Opp'n ¶¶ 3-4; Def.'s Opp'n Ex. D (Sussman's Calendar).
Based on this assumption, and at the behest of his client, Mr. Sussman prepared Defendant's present motion and hand-delivered it to this Court on January 10, 2002. See Def.'s Opp'n ¶ 8; Def.'s Opp'n Ex. A (Defendant's Motion time-stamped by Clerk of Court N. Mayer Whittington). On May 10, 2002, however, the Government moved to dismiss Defendant's motion on the grounds that it was filed after the one-year statute of limitations for Section 2255 motions had expired. On July 31, 2003, this Court issued an Order denying the Government's motion to dismiss, based on its finding that the doctrine of equitable tolling operated to permit consideration of Defendant's Motion to Vacate, despite the fact that it had been filed two days late. See United States v. Mathis, No 97-334-4 (D.D.C. July 31, 2003) (Order denying Motion to Dismiss)
In his motion, Defendant presents a claim of ineffective assistance of counsel, alleging that his attorney's decision not to call Larry Clemons as a witness at trial was a "tactical judgment that fell well outside the broad boundaries reasonably afforded a trial lawyer." See Def.'s Mot. at 10 (citing United States v. Debango, 780 F.2d 81 (D.C. Cir. 1986)). According to Defendant, Larry Clemons would have "simply and directly [said] that Matthews was a liar," and would therefore have discredited a witness whose testimony was "crucial to the [G]overnment's case" against Defendant. See id. at 5, 10. Indeed, although Mr. Clemons was not called to testify at trial, he was called to testify during Defendant's pre-sentencing hearing, at which time he contradicted a portion of Matthews' testimony. Whereas Matthews had testified to meeting Defendant, Eddie Mathis, and Larry Clemons at IHOP in September or October of 1996, see Matthews Test. at 127-31, Mr. Clemons testified that he "never even [saw Defendant] in 1996," see Gov't Opp'n, Ex. 2 ("Clemons Test.") at 6. According to Defendant, the IHOP transaction was the "primary — and perhaps sole — act that [he] was alleged to have performed in furtherance of the Castro conspiracy," Def.'s Mot. at 5, and therefore Mr. Clemons' testimony would have called into question Defendant's entire involvement with the charged conspiracy. Defendant argues that, "[i]f Clemons' testimony is placed in the context of a trial in which the [Castro and Coley] conspiracies were separated and limiting instructions provided, it becomes clear how the petitioner was harmed by trial counsel's failure to call Clemons as a witness." See id. at 9.
The exact exchange between Mr. Clemons and Defendant's attorney was as follows:
Q: In 1996, did you participate in any drug purchase at the Landover Mall that Walter Mathis was present for?
A: I never even seen him in '96.
Q: Would you remember if you participated in any drug transaction purchase in the company of Peaches in 1996?
A: Yes, I would.
Q: Why would you remember?
A: Because I remember what I do.
Clemons Test. at 6.
The Court notes that, at the pre-sentencing hearing, Judge Thomas A. Flannery stated that, "[a]fter hearing the testimony of Larry Clements [sic] and the testimony of Eugene Matthews, observing their demeanor and manner of testifying, the [C]ourt finds the testimony of Eugene Matthews in open court to be more believable by a preponderance of the evidence, and therefore accepts his testimony and rejects the testimony of Larry Clements [sic] that he was never present when a transaction took place between Walter Mathis and Eugene Matthews." See Gov't Opp'n, Ex. 3 ("Sentencing Tr.") at 53.
Defendant is referring to the Circuit Court's ruling, which held that the Castro and Coley conspiracies were distinct conspiracies, that the indictment charged Defendant with participating in only the former, and that evidence regarding the latter should have been considered "other crimes" evidence under Federal Rule of Evidence 404(b), but that the "other crimes" evidence was permissibly admitted. See Mathis, 216 F.3d at 25. As Defendant suggests, however, juries are often instructed as to the limited purposes for which "other crimes" evidence may be used. See, e.g., United States v. Burch, 156 F.3d 1315, 1324 (D.C. Cir. 1998) (where "trial judge was clearly aware of the potential danger for `jury misuse of the [other crimes] evidence,' [he] crafted a careful limiting instruction to guide the jury away from drawing a conclusion on the basis of character or propensity." (internal citations omitted)).
Defendant therefore asks the Court to vacate his sentence on the grounds that his Sixth Amendment right to effective assistance of counsel was violated by his trial attorney's failure to call Larry Clemons as a witness at trial. See Def.'s Opp'n ¶ 10; Def.'s Mot. at 9-10. The Government opposes Defendant's motion, arguing that the decision not to call Larry Clemons — a convicted felon — was an "objectively reasonable trial tactic that will not support a claim of ineffective assistance of counsel." See Gov't Opp'n at 5 (citing United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, 488 U.S. 910 (1988) and English v. United States, 998 F.2d 609, 613 (8th Cir.), cert. denied, 510 U.S. 1001 (1993)). The Government further argues that, even if counsel's decision was objectively unreasonable, this Court should not vacate Defendant's sentence because, "given Mr. Clemons' lack of credibility and the other evidence of [D]efendant's guilt, [D]efendant has not shown that there is a reasonable probability that he would have been acquitted but for his counsel's alleged error." See id. at 8 (citing Hardin, 846 F.2d at 1232 and McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996)).
In addition to the ineffective assistance of counsel claim, Defendant raises two additional issues. First, Defendant adopts the argument raised by co-defendant Eddie Mathis that the allegedly false testimony of Eugene Matthews was introduced at trial in violation of Defendant's due process rights. Def.'s Mot. at 11. The Government does not respond to this allegation, see generally Gov't Opp'n; however, the Court notes that this claim was not raised by Defendant on direct appeal, see Mathis, 216 F.3d at 21. Second, Defendant contends that this Court violated his Sixth Amendment right to trial by jury insofar as it imposed sentence enhancements on the basis of facts not specifically found by a jury. Def.'s Suppl, at 1-2. The Government responds by arguing that Defendant is procedurally barred from raising this claim because Defendant did not show cause for his failure to raise the claim on direct appeal. See Gov't Opp'n to Suppl. at 1. The Government further argues that, if the claim has not been procedurally defaulted, it should nonetheless fail because the rule announced in Blakely "constitutes a new constitutional rule of criminal procedure that may not be retroactively applied on collateral attack." Id. at 1.
Defendant claims that his "sentence was substantially increased by judicial findings regarding the drug quantity for which he was liable and the [C]ourt's conclusion that [he] was on parole at the time of the offense." Def.'s Suppl. at 2.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes his sentence was imposed "in violation of the Constitution or laws of the United States. . . ." 28 U.S.C. § 2255. When the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was passed, however, a "period of limitation" was imposed on motions filed under Section 2255, giving a defendant "one year . . . from the date on which [his] judgment of conviction becomes final" to file a Section 2255 motion. See id. Once a defendant's motion has been timely filed, the Court must "grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto . . . unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
The AEDPA explicitly provided for three exceptions to this rule, allowing the one-year period of limitation to run from the latest of:
[1] the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
[2] the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
[3] the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255 (renumbered).
III. EVIDENTIARY HEARING
Because the Court concluded that an evidentiary hearing would help to clarify the facts of the case and perhaps shed light on the reason Defendant's attorney chose not call Larry Clemons as a trial witness, an evidentiary hearing was held on October 28, 2004. At this hearing, Defendant testified that he thought Larry Clemons would be called as a witness and that he was surprised when Mr. Clemons was not called. Evidentiary Hearing Tr. ("Hearing Tr.") at 16:1-4. Specifically, Defendant testified that it was his understanding that Mr. Clemons was not called as a witness because he could not be located at the time of trial. Id. at 18:10-15. Moreover, Defendant denied ever instructing his attorney not to call Larry Clemons out of fear that Mr. Clemons' testimony might hurt his brother, Eddie Mathis. Id. at 23:16-18.When Defendant's trial attorney, Ms. Mona Asiner, Esq., took the stand, she told a very different story. Ms. Asiner testified that, upon learning that Larry Clemons could be an important witness, she located Mr. Clemons and interviewed him herself. Id. at 31:10-32:9. According to her testimony, when she asked Mr. Clemons "whether or not he had ever been at the IHOP for a drug deal with Eugene Matthews and Peaches," Mr. Clemons replied, "[N]o, not Peaches." Id. at 33:17-19. Because Mr. Clemons seemed to choose his words carefully, however, Ms. Asiner indicated that she suspected that Clemons may have participated in drug transactions with Defendant's brother, Eddie Mathis, and thus that Clemons could implicate Eddie Mathis if he took the stand as a witness. See id. at 33:20-34:24. According to Ms. Asiner, she reported the details of this conversation to Defendant, advising him that, although Mr. Clemons would be a helpful witness, there was a risk Clemons might implicate his brother. See id. at 35:9-24. Defendant allegedly replied that "he certainly wasn't going to do anything to hurt Eddie," and therefore that Ms. Asiner should ask Eddie's attorney, Mr. Bernie Grimm, Esq., for his opinion about how Mr. Clemons' testimony could affect Eddie's case. See id. at 36:4-7. Ms. Asiner testified that she followed these instructions, consulted with Mr. Grimm (who apparently had not yet interviewed Mr. Clemons), and reported back to her client. See id. at 37:8-24; 48:11-14. As per Ms. Asiner's testimony, Mr. Grimm "had not given his approval" to call Larry Clemons, id. at 51:22-25, and told her "point blank that we don't need him" as a witness, id. at 50:14-19. According to Ms. Asiner, however, she emphatically warned Defendant of the dangers of deferring to Mr. Grimm's opinion. Specifically, she told him:
[R]egardless of what Bernie thinks and said, you got to think seriously . . . about . . . what your position is in this because there's no point in having the both of you behind bars. Someone needs to be out there to take care of your mother, and I think . . . that Larry Clemons would free you, as you should be free.Id. at 37:18-24. Although Defendant allegedly responded by saying, "[I]f Bernie says . . . not to do it, then we don't need it," id. at 38:4-5, Ms. Asiner stated that she implored her client to reconsider. She testified that she told Defendant, "I think it's a mistake. I know you respect Bernie's opinion. But Bernie's looking out for . . . who he's looking out for. . . ." Id. at 39:5-7. In the end, Ms. Asiner said that Defendant instructed her not to call Mr. Clemons without Mr. Grimm's approval, and thus — after agonizing over the decision — she followed her client's instructions and did not put Mr. Clemons on the stand. Id. at 51:17-52:8. According to Ms. Asiner, it is her belief that "the D.C. standard of ethics and the A.B.A. criminal defense ethics require [an attorney] to look out for the best interest of [his or her] client[, but that] . . . they also require you to discuss . . . your opinions [and] perceptions" with your client. Id. at 52:15-20. She explained that her professional philosophy — which she tells all of her clients — is that, "in the end, no matter what happens, I'm walking out that door. So you have to make the decisions because you may not be walking out that door. . . ." Id. at 52:24-53:2.
When asked on direct examination why she did not put these discussions on the record in an ex parte proceeding, Ms. Asiner explained that she was afraid that doing so would "tip off the government . . . that there [was] . . . something afoot that they could get a handle on." Id. at 39:11-13. She elaborated on cross-examination that "my primary concern was I did not want [the prosecutor] to have any reason to . . . talk to Mr. Clemons, because then it would end up hurting who [Defendant] didn't want hurt from jump street." Id. at 53:23-54:1. Although Ms. Asiner expressed deep regret at her decision not to call Clemons, see id. at 38:5-7; 52:6-8; 53:8, she emphasized that she did what she was instructed to do by her client and that it was her opinion that the decision whether or not to call a particular witness was not hers alone. See id. at 52:6-14.
Following this hearing, both the Government and Defendant submitted briefs clarifying their positions on the ineffective assistance of counsel claim. Defendant's argument consists of three primary contentions: (1) by deferring to Defendant's decision not to call Mr. Clemons as a witness (in spite of her professional judgment that Clemons would have "set [Defendant] free"), Ms. Asiner denied Defendant his constitutional right to counsel, Def.'s Post-Hearing Mem. at 68; (2) by failing to fully investigate Mr. Clemons' potential testimony and by failing to obtain an on-the-record waiver from Defendant of his right to call a crucial witness, Ms. Asiner prevented Defendant from waiving this right "knowingly and intelligently", id. at 9-11; and (3) by deciding not to call Larry Clemons when "there was no reason not to call [him]," Ms. Asiner's representation of Defendant "fell below the accepted standards of professional competence" and therefore constituted ineffective assistance of counsel under Strickland v. Washington, id. at 11.
In response, the Government argues that "[t]he decision whether to call a particular witness is generally viewed as a tactical choice that does not support a finding of deficiency," Gov.'t Post-Hearing Mem. at 10, and that deferring to Defendant's wishes regarding Larry Clemons was a "reasonable strategy" for Ms. Asiner to pursue, id. at 13. The Government further contends that Defendant was adequately informed by Ms. Asiner of the consequences of calling Larry Clemons and that Ms. Asiner's failure to bring the conflict to the Court's attention was not per se improper. See id. at 14, 17-18. Finally, the Government emphasizes that "`the testimony of [an] uncalled witness is not considered in a vacuum,'" and thus that Mr. Clemons' questionable credibility could have been a legitimate part of Ms. Asiner's decision not to call him as a witness. Id. at 16 (quoting McCauley-Bey, 97 F.3d at 1106).
IV. DISCUSSION
A. Ineffective Assistance of Counsel Claim
To make out a claim for ineffective assistance of counsel, Defendant bears the burden of showing that his attorney's performance was so deficient that it fell "below an objective standard of reasonableness" and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 686-89 (1984). Defendant claims that it was objectively unreasonable for his attorney not to call Larry Clemons — a witness who would have partially impeached the only witness implicating Defendant in the charged conspiracy — and that this unreasonable decision "more than likely altered the outcome of the case." Def.'s Mot. at 6, 10. The Government counters this claim by pointing out that defense counsel's decision not to call Mr. Clemons was a "reasonable trial tactic" and that, even if the Court finds counsel's decision to be objectively unreasonable, Defendant has not shown that there is a reasonable probability he would have been acquitted if Clemons had testified. Gov't Opp'n at 5-6.
While Defendant must establish both unreasonable attorney behavior and prejudice to prevail on the present motion, "there is no reason for a court deciding an ineffective assistance of counsel claim to . . . address both components of the inquiry if the defendant has made an insufficient showing on one." Strickland, 466 U.S. at 697. The Court will, therefore, first consider whether counsel's decision not to call Larry Clemons at trial "fell below an objective standard of reasonableness." Id. at 687.
In Strickland, the Supreme Court outlined the standard to be applied in deciding whether the conduct of an attorney is objectively unreasonably. 466 U.S. at 687. In doing so, the Court emphasized that "judicial scrutiny of counsel's performance must be highly deferential," and that courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 688. More specifically, the Court recognized that "there are countless ways to provide effective assistance in any given case," and therefore held that a defendant claiming ineffective assistance of counsel "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. With Defendant's heavy burden in mind, the Court considers each of Defendant's arguments as to why Ms. Asiner's representation was constitutionally defective.
1. Deference to Defendant's Decision Not to Call Mr. Clemons
Although Defendant testified that he never directed Ms. Asiner not to call Larry Clemons as a witness, see Hearing Tr. at 23:12-24:13, Defendant argues that, even if the Court credits Ms. Asiner's testimony and finds that that Defendant's did instruct her not to call Mr. Clemons, it was improper for Ms. Asiner to "sacrifice her professional and independent judgment to her client. . . ." Def.'s Post-Hearing Mem. at 7. At the outset, the Court notes that, after observing the demeanor of Defendant and Ms. Asiner at the evidentiary hearing and weighing their credibility, the Court credits the testimony of Ms. Asiner. Therefore, the Court finds that Defendant did instruct his attorney to follow the advice of Mr. Grimm and not call Mr. Clemons at trial. See Hearing Tr. at 51:17-21. The question remains whether Ms. Asiner's decision to follow these instructions, despite her professional judgment that Mr. Clemons' testimony was likely to secure an acquittal for her client, "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 688.
At the evidentiary hearing, Defendant's attorney suggested that Ms. Asiner's conduct fell outside this range because the D.C. Rules of Professional Conduct and the American Bar Association's Standards of Criminal Justice leave the calling of witnesses to the professional discretion of the attorney. See Hearing Tr. at 52:9-18, 62:7-23 ("[Y]ou consult with your client [about whether to call a witness], you talk to him about it, but in the end you make the decision and you sacrifice your role as counsel when you [accede] . . . to your client's wishes."). Although both the D.C. Rules of Professional Conduct and the American Bar Association's Standards of Criminal Justice do place the calling of witnesses in the lawyer's domain, defense counsel's characterization of the two sets of ethical standards is incomplete. In particular, both sets of standards agree that "counsel should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected." D.C. Rules of Prof'l Conduct, R. 1.2 (2004); Standards of Criminal Justice § 4-3.1, cmt. (3d Ed. 1993) (emphasis added). Defendant's concern for his brother — which apparently motivated Defendant's instruction to keep Mr. Clemons off of the witness stand — falls squarely into this caveat. Defendant was evidently worried that Mr. Clemons' testimony could be damaging to his brother. It would have be difficult, if not improper, for Ms. Asiner to ignore Defendant's concern for his family member and proceed to call Clemons as a witness. Indeed, the ethical codes cited above make it clear that, while the attorney assumes responsibility for the means used in any given case, "[a] lawyer shall abide by a client's decisions concerning the objectives of representation. . . ." D.C. Rules of Prof'l Conduct, R. 1.2(a); see also Standards of Criminal Justice 4-3.1, cmt. (3d Ed. 1993) ("The client has ultimate authority to determine the purposes to be served by legal representation. . . ."). If Defendant's objective was to secure an acquittal for himself insofar as it was possible to do so without increasing his brother's chance of conviction, there seems to be no room for an attorney to second-guess Defendant's unselfish goal. For these reasons, it is unlikely Ms. Asiner's deference to her client was objectively unreasonable, as the professional guidelines cited by Mr. Sussman do not clearly prohibit her chosen course of action.
Edward Sussman, Esq., represented Defendant at the evidentiary hearing. See Hearing Tr. at 1.
See D.C. Rules of Prof'l Conduct, R. 1.2 (2004) ("In a criminal case, the lawyer shall abide by the client's decision . . . as to a plea to be entered, whether to waive jury trial, and whether the client will testify[, but not whether to call a particular witness]."); Standards of Criminal Justice § 4-3.1, cmt. (3d Ed. 1993) ("[T]he lawyer should assume responsibility for technical and legal, strategic and tactical issues, such as what witnesses to call. . . .").
Although not binding, the Court notes the following law review article of interest on this issue. Professor Rodney J. Uphoff, author of Who Should Control the Decision to Call A Witness: Respecting a Criminal Defendant's Tactical Choices, 68 U. CIN. L.REV. 763 (2000), pointed out that "clients often are in a better position to make case decisions because so many decisions actually turn on the client's values and priorities that the client alone best appreciates." Id. at 769. In the present case, Defendant's "values and priorities" were integral to his reluctance to use Mr. Clemons as a witness. Therefore, Professor Uphoff's analysis suggests that Defendant may have been in the best position to decide whether or not to call Mr. Clemons. See id.
Circuit courts confronted with cases like the one at bar have also refused to characterize a tactic pursued by an attorney at her client's behest as "unreasonable." In Jeffries v. Blodgett, 5 F.3d 1180, 1197-98 (9th Cir. 1993), the defendant instructed his attorney not to present mitigating evidence at sentencing after spending a weekend discussing the pros and cons of this option with his attorney. The Ninth Circuit rejected Jeffries' ineffective assistance of counsel claim, explaining that, "[because] counsel . . . had discussed with Jeffries the ramifications of failing to present the evidence[,] . . . counsel did not deprive Jeffries of effective assistance in acquiescing in the latter's considered decision." Id. at 1198. In Mulligan v. Kemp, 771 F.2d 1436, 1443 (11th Cir. 1985), the defendant insisted on pressing an alibi defense (to the exclusion of all other defenses), despite his attorney's "efforts to shake [defendant's] reliance on the alibi defense. . . ." When the defendant later brought a claim of ineffective assistance of counsel, the Eleventh Circuit explained that, "if [an attorney] is commanded by his client to present a certain defense, and if he does thoroughly explain the potential problems with the suggested approach, then [the attorney's] ultimate decision to follow the client's will may not be lightly disturbed." Id. at 1442. Indeed, the Eleventh Circuit has gone so far as to hold that "when a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made." Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir. 1985) (emphasis added).
In the present case, once Ms. Asiner was directed by Defendant not to call Mr. Clemons, she explained the danger inherent in this course of action and told Defendant that she thought it was "a mistake" not to call him. See Hearing Tr. at 35:20-22, 39:5. Like the Eleventh Circuit, this Court will not "lightly disturb" Ms. Asiner's decision to follow her client's informed instructions. Accordingly, the Court rejects Defendant's contention that Ms. Asiner acted outside the bounds of reasonable professional assistance when she allowed Defendant's informed opinion to "trump" her own with respect to calling Larry Clemons as a witness.
2. Inability to Make Witness Decision Knowingly and Intelligently
The above analysis strongly suggests that Defendant cannot meet the first prong of the Strickland test, as it was objectively reasonable for Ms. Asiner to defer to Defendant's decision on the Clemons question. Defendant nonetheless contends that Ms. Asiner's failure to (a) fully interview Mr. Clemons and (b) bring the issue to the attention of the Court in an ex parte matter deprived Defendant of the right to make a decision with regard to Mr. Clemons "knowingly and intelligently." Def.'s Post-Hearing Mem. at 10. More specifically, Defendant argues that Ms. Asiner's incomplete interview of Mr. Clemons prevented her from providing Defendant with full information regarding Mr. Clemons' potential testimony, id. at 9-10, and that the lack of an ex parte hearing prevented Defendant from being informed by the Court of the consequences of not calling Mr. Clemons as a witness, id. at 10-11. Although the Court agrees that conducting a more complete interview of Mr. Clemons and bringing the dilemma to the Court in an ex parte hearing are other courses of action counsel could have considered, the Court finds that neither omission prevented Defendant from making a "knowing and intelligent" choice to forego the use of Larry Clemons as a witness.
a. Prematurely Terminating Mr. Clemons' Interview
After learning from Mr. Clemons that "he wasn't present at Landover Mall for any transactions with respect to Mr. Walter Mathis-Bey," Ms. Asiner testified that she "didn't go any further [with the interview] because [she] felt that it was not in the best interest [of her client]" to do so. Hearing Tr. at 46:18-25. Defendant argues that this premature termination of the Clemons interview "placed . . . [him] in the untenable position of making a crucial choice without complete information." Def.'s Post-Hearing Mem. at 9-10.A full interview of Larry Clemons might have given Ms. Asiner and Defendant a clearer picture of exactly what Mr. Clemons' testimony would have been. However, the Court does not find that Ms. Asiner's partial interview deprived Defendant of adequate information from which to decide whether or not to waive his right to call Mr. Clemons. Indeed, Ms. Asiner had already secured the most critical piece of information from Mr. Clemons — namely, that he was never present at a Landover Mall drug transaction with Defendant — before terminating the interview. See Hearing Tr. at 33:17-34:1. With this valuable piece of exculpatory information in hand, Ms. Asiner consulted with her client, who indicated that he was willing to forego using Mr. Clemons' exculpatory testimony if Mr. Grimm (his brother's counsel) said not to call this witness. See id. at 36:7-11; 37:25-38:5.
As the Supreme Court held in Strickland, 466 U.S. at 691, "[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary"; however, such assessments of reasonableness are made by "applying a heavy measure of deference to counsel's judgments." Id. In this case, counsel fulfilled her initial duty to investigate by locating Mr. Clemons, interviewing him, and probing him for information that would benefit her client. After Ms. Asiner related this beneficial information to Defendant and emphasized how helpful Mr. Clemons' testimony could be, Defendant knew that there was a significant "up side" to calling Larry Clemons. Still, he indicated that he did not want to risk hurting his brother — something Ms. Asiner sensed Clemons was likely to do based on his answers to her carefully-worded questions. Moreover, Mr. Grimm's reluctance to agree to have the witness testify on behalf of Walter Mathis does not belie this conclusion. Although Ms. Asiner could have re-interviewed Mr. Clemons and made sure her suspicions about Clemons' interactions with Defendant's brother were correct, the highly-deferential standard articulated in Strickland suggests that Ms. Asiner's decision not to do so falls within the range of "reasonable" decisions. See Strickland, 466 U.S. at 691. Therefore, albeit that additional information could have been sought, the Court finds the scope of Ms. Asiner's interview with Mr. Clemons to be "reasonable" under the highly-deferential standard articulated in Strickland.
b. Failure to Request Ex Parte Hearing
When asked at the evidentiary hearing why she did not bring the Clemons dilemma to the attention of this Court in an ex parte proceeding, Ms. Asiner admitted that "it didn't occur to [her] at the time," Hearing Tr. at 53:16-22, but also indicated that she "was afraid [that] it would tip off the government," that Clemons could be a useful witness, id. at 39:11-12. Defendant now argues that this oversight — whether inadvertent or deliberate — prevented Defendant from fully appreciating the gravity of the decision not to call Clemons. See Def.'s Post-Hearing Mem. at 10-11. Indeed, Defendant suggests that the assistance of the Court would have helped Defendant make an "informed, intelligent choice," and that, without such assistance, Defendant's decision was not "knowing and intelligent." Id. at 11.As the Court noted at the evidentiary hearing, putting attorney-client discussions on the record ex parte can be done "to make sure that the defendant understands . . . his option[s]," and can be done for "the protection [of] the lawyer . . . to make sure that they then have a record . . . to cover themselves." Hearing Tr. at 58:2-4, 57:7-9. Therefore, an attorney can consider this precautionary step in some circumstances. The Court, however, is unwilling to mandate this step and forcibly inject itself into the attorney-client relationship during trial. Discussions between lawyers and their clients are intentionally private and are ordinarily shielded from intrusion by the courts. In the present case, Ms. Asiner appears to have adequately advised Defendant of the potential benefits of calling Mr. Clemons. See Hearing Tr. at 35:18-24; 37:15-24; 39:5-9. Any additional assistance this Court could have given Defendant would have been small in comparison to the significant encroachment on the attorney-client relationship an ex parte hearing would have required. Therefore, the Court finds that Defendant's decision not to call Mr. Clemons was made "knowingly and intelligently."
3. Prejudice from Absence of Larry Clemons' Testimony
In the preceding sections, the Court explained why it was permissible for Ms. Asiner to defer to Defendant's decision with respect to Mr. Clemons and why Defendant's decision not to call Mr. Clemons was made "knowingly and intelligently." See supra, Part IV.A.1. and Part IV.A.2. Accordingly, the Court concludes that Ms. Asiner's professional assistance did not "fall below an objective standard of reasonableness" and, therefore, that the first prong of the Strickland test has not been met. Strickland, 466 U.S. at 687. Because Defendant has failed to establish one of the two elements required for a finding of ineffective assistance of counsel, Defendant cannot prevail on this claim. See id. at 687-89.
The Court notes, however, that even if the first prong of Strickland had been met, Defendant may not have been prejudiced by Mr. Clemons' absence at trial and therefore may not have been able to meet the second prong of Strickland either. See id. at 689 (implying that, in this case, prejudice would result only if there were a "reasonable probability that, but for [the decision not to call Clemons as a witness], the result of the proceeding would have been different"). Defendant, of course, argues that the testimony of Larry Clemons — which would potentially impeach the credibility of Eugene Matthews — was critical to his case and, therefore, that the outcome of the trial would have been different if Mr. Clemons had testified. Def.'s Mot. at 9. Defendant contends that the testimony of Eugene Matthews "was the sole evidence linking [him] to the Castro conspiracy," id., making it "vitally important for the defense to negate [Matthews'] testimony in any permissible way," id. at 5. Defendant further argues that "[c]alling Clemons as a witness had no discernable downside. . . ." Id. at 10.
There are reasons to doubt Defendant's assessment. First, it was not "vitally important" to call a witness to impeach Matthews' testimony. Matthews' credibility had already been called into question during cross examination; indeed, as Defendant concedes, the jury was aware of Matthews' lengthy criminal record, knew he was testifying as part of a "deal" with the Government to shorten an impending sentence, and heard him make two statements the defense later proved were inaccurate. See Def.'s Mot. at 7. Because the Government bore the burden of proving Defendant's guilt beyond a reasonable doubt, it may have been unnecessary to further discredit Matthews by calling a witness who would contradict another specific detail of his testimony. Cf. United States v. English, 998 F.2d 609, 613 (8th Cir. 1993) (finding no ineffective assistance of counsel where omitted witness would have "merely serve[d] to impeach" another witness's credibility and where that witness had already been "subject to thorough cross examination at trial."). As revealed by Mr. Clemons' testimony during Defendant's pre-sentence hearing, Clemons claims that he did not accompany Mr. Matthews to the IHOP restaurant on the day Matthews claimed to have received heroin from Defendant. Clemons Test. at 6. Although this testimony would have contradicted Mr. Matthews' testimony insofar as Matthews recalled Clemons' presence at the IHOP encounter, it would not have confirmed or denied Defendant's participation in the transaction. Indeed, Matthews could have correctly remembered receiving drugs from Defendant on that day, but erroneously remembered that Clemons was also present. Because Clemons' testimony would not have exonerated Defendant, but would have only further impeached the already-discredited testimony of Mr. Matthews, it appears that calling Mr. Clemons would not have been "vitally necessary."
First, Matthews testified to participating in drug deals with co-defendant Eddie Mathis during a period in which Eddie Mathis was incarcerated. See Def.'s Mot. at 7 (citing transcript of testimony given Oct. 19, 1998, p. 60). Second, Matthews testified to receiving drugs from Defendant at Iverson Mall, but later corrected himself and testified that the transaction took place at the Landover Mall. See id. Both misstatements certainly called Matthews' credibility into question.
Second, calling Clemons to testify did have a "discernable downside" — in fact, it had several. Clemons had previously been convicted of heroin distribution and possession, attempted robbery, armed robbery, receiving stolen property, carrying a dangerous weapon, and forgery, petty larceny and attempt at false pretenses. See Clemons Test. at 13-14. It is therefore likely that Clemons would have been subjected to harsh cross examination similar to that which he encountered during the pre-sentencing hearing. Gov't Opp'n at 5-6. Additionally, Clemons admitted that he "didn't volunteer for any of this," but rather was in court as a result of a subpoena — testimony suggesting that Clemons would hardly have been a cooperative witness. See Clemons Test. at 11. Calling Clemons had a further "discernable downside," as it placed Clemons' own credibility into question. As the Government points out, Clemons provided "evasive testimony" during the pre-sentencing hearing by refusing to name any of the individuals from whom he purchased drugs. See Gov't Opp'n at 6 (citing Clemons Test. at 10-12). Moreover, when weighing the believability of Mr. Clemons against that of Mr. Matthews, Judge Flannery concluded that, "[a]fter . . . observing their demeanor and manner of testifying, the [C]ourt finds the testimony of Eugene Matthews in open court to be more believable by a preponderance of the evidence, and therefore accepts his testimony and rejects the testimony of Larry Clements [sic]. . . ." See Sentencing Tr. at 53. It is therefore difficult to claim that there is a reasonably probability calling Mr. Clemons — a convicted felon whose testimony was found less credible than the witness he would have been called to impeach — would have changed the outcome of the case.
By any measure, Defendant has failed to meet the first prong of the Strickland test. See discussion supra Parts IV.A.1, IV.A.2. Moreover, it is unlikely Defendant would be able to show that he was prejudiced by the absence of Mr. Clemons at trial. See discussion supra Part IV.A.3. Therefore, the Court will reject Defendant's claim of ineffective assistance of counsel.
B. Adopted Argument
Although Defendant's Motion to Vacate focuses on the allegedly ineffective assistance he received from his trial attorney, Defendant also "adopts the argument advanced by his former co-defendant, Eddie Mathis[,] . . . that the [G]overnment violated his basic due process rights through the use of Eugene Matthews' testimony." Def.'s Mot. at 11. What Defendant fails to explain, however, is why he did not raise this objection on direct appeal. As firmly established in Bousley v. United States, "where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate `cause' and `actual prejudice,' or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998). Defendant has not even alleged "cause and prejudice" in his Motion to Vacate and cannot benefit from co-defendant Eddie Mathis' argument that his appellate attorney's ineffective assistance provides an adequate excuse for his procedural default. See Def.'s Mot. at 11. Additionally, Defendant cannot maintain a claim of "actual innocence" because he has not even attempted to demonstrate that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." See Bousley, 523 U.S. at 623; Def.'s Mot. at 11; Def.'s Post-Hearing Mem at 1-13. Therefore, Defendant cannot raise an objection to the use of Matthews' testimony in his Section 2255 motion.
Co-defendant Eddie Mathis attempted to explain his procedural default on this issue by claiming that his appellate attorney's decision not to raise the "Matthews issue" on direct appeal was constitutionally defective assistance of counsel. Defendant, however, was represented by a different appellate attorney than his brother, making this portion of co-defendant's argument inapplicable and hence unadoptable.
Defendant Walter Mathis did testify at the evidentiary hearing that he told Ms. Asiner he "had nothing to do with" the Castro conspiracy. See Hearing Tr. at 20:25-21:4. This mere allegation of innocence, however, is not sufficient to establish actual innocence under Bousley. See 523 U.S. at 623.
C. Sentencing Challenge
Defendant's final contention is that the 210-month sentence ultimately imposed by Judge Flannery was based on facts that were "never submitted to a jury and, consequently, [imposition of this sentence] directly contravene[s] the Supreme Court holding in Blakely [ v. Washington, 124 S. Ct. 2531 (2004)]. Def.'s Suppl. at 2. Specifically, Defendant notes that his "sentence was substantially increased by judicial findings regarding the drug quantity for which he was liable and the [C]ourt's conclusion that [he] was on parole at the time of the offense." Id.
The Government responds by arguing that Defendant's argument must be rejected for the following three reasons:
First, [D]efendant's claim is procedurally barred because [D]efendant failed to raise his current challenge to his sentence either at sentencing or on direct appeal, and has failed to show cause for his double procedural default and actual prejudice resulting from the error of which he complains. Second, even if [D]efendant's claim [were] not procedurally barred, [D]efendant is not entitled to relief because Blakely constitutes a new constitutional rule of criminal procedure that may not be retroactively applied on collateral attack. Third, [D]efendant's claim is untimely filed because it was filed more than one year after his conviction became final and because it does not relate back to his timely filed claims.
Gov't Opp'n to Suppl. at 1.
Assuming, without deciding, that Defendant's claim was timely filed and that this claim is not procedurally barred, the Court nonetheless finds that the new rule announced in Blakely — and superceded with regard to the federal system by United States v. Booker, 125 S.Ct. 738 — is not applicable to the present case and, therefore, that the sentencing enhancements complained of by Defendant were permissibly imposed. As explained in Teague v. Lane, 489 U.S. 288 (1989):
The Court notes that the parties briefed this issue after the Supreme Court's decision in Blakely, but before its decision in Booker. See Blakely, 124 S. Ct. at 2531 (decided on June 24, 2004); Booker, 125 S. Ct. at 738 (decided on Jan. 12, 2005); Def.'s Suppl. at 1 (filed on July 14, 2004); Gov't Opp'n to Suppl. at 1 (filed on July 21, 2004). Because Booker is now the binding law with regard to the Federal Sentencing Guidelines, this Court must decide the sentencing issue in light of Booker, notwithstanding the parties' lack of briefing on the that case's implications.
Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced. . . . The first exception . . . [is] that a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the law to proscribe." . . . The second exception . . . [is] that a new rule should be applied retroactively if it . . . "will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction."Id., 489 U.S. at 310-11 (emphasis in original) (quoting Mackey v. United States, 401 U.S. 667, 692-694 (1971)). The Booker rule — namely, that the Federal Sentencing Guidelines are merely advisory because, if mandatory, they would violate the Sixth Amendment's requirement that "juries, not judges, [must] find facts relevant to sentencing," Booker, 125 S.Ct. at 755 — is unquestionably a "constitutional rule of criminal procedure." See Schriro v. Summerlin, 124 S.Ct. 2519, 2523 (2004) (holding that the rule announced in Ring v. Arizona, 536 U.S. 584, 592-93 (2002), which like the Booker rule "altered the range of permissible methods for determining" a defendant's punishment, "is properly classified as procedural."). Moreover, this rule is "new" in that, at the time Defendant's conviction and sentence became final on January 8, 2001, the notion that federal judges are not bound to adhere to the Federal Sentencing Guidelines was not "dictated by then-existing precedent." See Beard v. Banks, 124 S.Ct. 2504, 2511 (emphasis omitted); see also, United States v. Samuel, 296 F.3d 1169, 1172 (D.C. Cir. 2002) (holding that Apprendi did not dictate the result later reached in Blakely, thereby confirming that the Blakely rule, and a fortiori the Booker rule, was not the prevailing law on January 8, 2001); United States v. Fields, 251 F.3d 1041, 1043-44 (D.C. Cir. 2001) (decided Jun. 12) (same); In re Sealed Case, 246 F.3d 696, 698 (D.C. Cir. 2001) (decided Apr. 24) (same).
Defendant's conviction became final on January 8, 2001, the date on which his Petition for Writ of Certiorari was denied by the Supreme Court. See Mathis v. United States, 531 U.S. 1009 (Jan. 8, 2001) (Mem.); Hicks v. United States, 283 F.3d at 387 (holding that a defendant's conviction becomes "final" on the date the Supreme Court denies his petition for certiorari).
Whether this new rule can be applied retroactively — and therefore potentially be used to vacate Defendant's sentence — rests on whether either of the two exceptions to the Teague rule applies. See Teague, 489 U.S. at 310. It is clear from the Supreme Court's ruling in Schriro, 124 S.Ct. at 2526 (emphasis added), that, like the Ring Court, the Booker Court "announced a new procedural rule that does not apply retroactively to cases already final on direct review." First, like the Ring rule, the Booker rule does not place any particular conduct "beyond the power of the law to proscribe." See id.; cf. Bailey v. United States, 516 U.S. 137, 150 (holding that 18 U.S.C. § 924(c)(1) does not prohibit an individual from carrying a firearm as long as he does not actively employ, or "use" the firearm). Second, it cannot be characterized as a "watershed rule of criminal procedure," because simply converting the Federal Sentencing Guidelines from mandatory to advisory is not "so central to an accurate determination of innocence or guilt" that any sentence imposed prior to this change would be seen as fundamentally unfair. See Teague, 489 U.S. at 310, 313.
This conclusion — namely, that the Booker rule does not qualify for retroactive application — is strongly supported by the Supreme Court's opinion in Booker, as well as the post- Booker decisions of a number of other circuits. In the Booker opinion itself, the Court declared that the case's holding "must [be] appl[ied] . . . to all cases on direct review," but made no mention of the holding's applicability to cases on collateral review. Booker, 125 S. Ct. at 769. As recently explained by the Supreme Court in Tyler v. Cain, "a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive." 533 U.S. 656, 662-63 (2001) (internal quotations omitted). Because the Court had a perfect opportunity to declare the Booker rule to be retroactive to cases on collateral review, and yet refused to make such a declaration, it is clear that the Supreme Court has not held the Booker rule to be retroactive and likely has no intention of doing so. See Booker, 125 S. Ct. at 769. Moreover, every circuit that has considered the retroactivity question with respect to Booker has concluded that the rule does not apply retroactively to cases on collateral review. See Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 480 (7th Cir. 2005); Bey v. United States, ___ F.3d ___, 2005 WL 469667 at *2 (10th Cir. 2005); In re Anderson, 396 F.3d 1336, 1340-41 (11th Cir. 2005).
The Court notes that, pursuant to Booker, the judge would still be expected to calculate the Sentencing Guidelines — including determining enhancements — but would consider those Guidelines as advisory in fashioning a reasonable sentence consonant with 18 U.S.C. § 3553.
Therefore, because the rule announced in Booker does not qualify for retroactive application, Defendant's sentence cannot be vacated on the grounds that the enhancements imposed by Judge Flannery violated his Sixth Amendment rights.
V. CONCLUSION
For the reasons stated above, Defendant's Motion to Vacate Sentence and Conviction is denied. An appropriate Order accompanies this Memorandum Opinion.