Opinion
Civ. A. No. 01-619-KAJ, Cr. A. No. 00-43-KAJ.
May 13, 2004
Glendon Henry, pro se Petitioner.
Robert J. Prettyman, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.
MEMORANDUM OPINION
I. INTRODUCTION
Petitioner Glendon Henry has filed with the Court the current motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 33.) Henry is serving his sentence at the Federal Correctional Institution in Fort Dix, New Jersey. As explained below, the Court will dismiss Henry's motion.
II. PROCEDURAL AND FACTUAL BACKGROUND
Henry pled guilty to distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). (D.I. 13.) This Court sentenced him to 151 months of imprisonment. (D.I. 19.) Although Henry filed a notice of appeal in the Third Circuit Court of Appeals, he subsequently filed a Motion for Voluntary Dismissal. (D.I. 30.) The Third Circuit dismissed his appeal on January 23, 2001. (D.I. 29.) Henry then filed his pending § 2255 motion in this Court on September 13, 2001. (D.I. 33.)
This matter was originally assigned to the Honorable Roderick R. McKelvie, but was reassigned to the undersigned on January 6, 2003.
III. STANDARD OF REVIEW
After conviction and exhaustion, or waiver, of any right to appeal, courts can presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982). However, prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. Section 2255 cures jurisdictional errors, constitutional violations, proceedings that resulted in a "complete miscarriage of justice," or events that were "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 784 (1979).
When reviewing a § 2255 motion, a federal district court must first consider whether an evidentiary hearing is required. An evidentiary hearing is only required when the petitioner raises an issue of material fact. See United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993). A petitioner is not entitled to a hearing if his allegations are conclusively contradicted by the record, or if they are patently frivolous. Solis v. United States, 252 F.3d 289, 295 (3d Cir. 2001); see Gov't of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Thus, if the motions, files, and records "show conclusively that the movant is not entitled to relief," then a district court may summarily dismiss a § 2255 motion. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)).
As explained below, I find that the evidence of record conclusively demonstrates that Henry is not entitled to the relief sought and that an evidentiary hearing is not required.
IV. DISCUSSION
Henry asserts three claims in his § 2255 motion: (1) § 21 U.S.C. § 841 is unconstitutional after the Supreme Court's opinion Apprendi v. New Jersey because § 841(a) does not provide for penalties, and § 841(b) provides sentencing factors, not elements of the offense; (2) Count I of the Indictment to which Henry pled guilty did not allege a specific quantity of drugs, thereby violating Apprendi; and (3) Henry's defense counsel provided ineffective assistance by failing to argue that the substance he distributed was not a controlled drug because it contained niacinamide. (D.I. 33.) The Government asserts that the Apprendi claims should be dismissed because they are without merit and because Henry waived them by not presenting them to this Court at sentencing or to the court of appeals. The Government further argues that the Court should dismiss the ineffective assistance of counsel claim because it is meritless.
The Government also argues that Apprendi does not apply retroactively on collateral review. However, Apprendi was decided in June 2000, and Henry was sentenced in October 2000. As such, the non-retroactivity argument is inapplicable here.
A. Apprendi claims
The relief sought under 28 U.S.C. § 2255 is reserved for extraordinary circumstances. See Brecht v. Abrahamson, 507 U.S. 619 (1993). If a petitioner fails to raise a claim at sentencing or on direct appeal, that claim is waived and cannot thereafter be reviewed pursuant to 28 U.S.C. § 2255. Bousley v. United States, 523 U.S. 614, 616, 621-22 (1998) (citation omitted); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982). A federal court may not consider the merits of waived claims unless the petitioner demonstrates cause for the default and prejudice resulting therefrom, or that he is actually innocent. See Bousley, 523 U.S. at 622-23; United States v. Frady, 456 U.S. 152, 167-68; United States v. Jenkins, 333 F.3d 151, 155 (3d Cir. 2003).
A review of the record reveals that Henry did not raise his two Apprendi arguments at sentencing. (D.I. 25.) Moreover, even though Henry did file a notice of appeal, he later voluntarily withdrew the appeal. (D.I. 29; D.I. 30.) Consequently, unless Henry can establish cause for his procedural default and prejudice resulting therefrom, or actual innocence, he is procedurally barred from raising these claims pursuant to § 2255.
To establish cause, a petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to raise the claim." Essig, 10 F.3d at 979 (citation omitted). Henry does not allege that any external factor prevented him from asserting his Apprendi claims either at sentencing or on direct appeal. Rather, he argues that the alleged unconstitutionality of 21 U.S.C. § 841 deprives the Government of any basis to prosecute, thereby eliminating the need to establish cause and prejudice. (D.I. 140.) Henry's argument for avoiding the cause and prejudice analysis is inextricably interwined with his first § 2255 claim that Apprendi renders the statute by which he was convicted, 21 U.S.C. § 841, unconstitutional. He bases both arguments on two points: (1) § 841(a) does not provide for penalties; and (2) § 841(b) provides sentencing factors, not elements, of the offense. (D.I. 33; D.I. 40.)
I reject these arguments. The Third Circuit has explicitly held that 21 U.S.C. § 841 is still facially constitutional after Apprendi:
' Apprendi . . . [does] not establish that anything in § 841 is unconstitutional or require[s] its severance . . . It makes no constitutional difference whether a single subsection covers both elements and penalties, whether these are divided across multiple subsections, or even whether they are scattered across multiple statutes.'U.S. v. Kelly, 272 F.3d 622, 624 (3d Cir. 2001) (citation omitted). Thus, Henry's argument for avoiding the cause-and-prejudice analysis, which mirrors his first Apprendi claim, is without merit.
Because Henry has failed to establish cause for his waiver, I need not consider the issue of actual prejudice. See Smith v. Murray, 477 U.S. 527, 533 (1986); Lawrie, 9 F. Supp.2d at 453 (D. Del. 1998). Nevertheless, the fact that Henry's arguments are without merit demonstrates that Henry cannot show "that the errors at his trial . . . worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170.
Because of the lack of merit of Henry's argument that Apprendi renders § 841 unconstitutional, there is no prejudice resulting from the default of this claim.
Henry's substantive Apprendi claim is also without merit. The rule announced in Apprendi requires "any fact that increases the penalty for a crime beyond the prescribed statutory maximum [to] be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Count I of Henry's indictment charged him with "knowingly distribut[ing] a mixture containing cocaine base . . . in violation of [ 21 U.S.C. § 841(a)(1) and (b)(1)(A)." (D.I. 7.) Henry claims that the failure to specify a quantity of cocaine base violates Apprendi.
The indictment contained two counts. However, Henry only pled guilty to count I, and the Government dismissed count II.
That argument fails for two reasons. First, even though the indictment does not allege a specific quantity of drugs, Henry's plea agreement clearly states that the amount of crack cocaine base distributed was "over 50 grams." (D.I. 13 at ¶ 2.) The plea agreement also states that "[t]he defendant knowingly, voluntarily, and intelligently admits and . . . stipulate[s] that the amount of crack cocaine base attributable to the defendant for sentencing is over 1.5 kilograms." ( Id. at ¶ 3.) Henry's responses to the Court's questions during his plea colloquy further demonstrate that Henry knew the quantity of drugs attributed to him and understood the sentencing range. The Court asked Henry if he had reviewed the indictment and if he intended to plead guilty to the matters described by the Government in the plea agreement, and Henry responded affirmatively. (D.I. 27 at 7-8.)
Moreover, in determining the appropriate sentence, the Court only relied on the quantity of drugs stipulated in the plea agreement. It did not refer to any outside information regarding the quantity. Therefore, because Henry entered a knowing and voluntary plea, and he clearly stipulated to the amount of drugs relied on by the Court and confirmed at the plea colloquy, Apprendi is not even implicated. United States v. Rosendary, 152 F. Supp.2d 835, 839 (W.D. Pa. 2001) (collecting cases); see also United States v. Pinkston, 153 F. Supp.2d 557, 561 (M.D. Pa. 2001); United States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000) (even though the District Court considered for sentencing purposes a quantity of drugs greater than that stipulated to in the plea agreement, Apprendi was not violated because the actual sentence imposed was less than the original maximum statutory sentence).
The second reason why Henry's argument fails is that his sentence does not exceed the maximum statutory penalty. Apprendi, 530 U.S. at 490; United States v. Sau Hung Yeung, 241 F.3d 321, 327 n. 3 (3d Cir. 2001). Henry was sentenced to 151 months imprisonment. The maximum statutory penalty applicable to count I of the indictment and also to the quantity stipulated in the plea agreement is life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). Clearly, Henry's actual sentence does not exceed the sentence possible under the Indictment or plea agreement.
Even if, however, the omission of a specific drug quantity in the indictment required the application of the statutory penalty provided by 21 U.S.C. § 841(b)(1)(C), Apprendi is not violated. See Rosendary, 152 F. Supp.2d at 838; cf. United States v. Pressler, 256 F.3d 144, 157-58 n. 7 (3d Cir. 2001) ("if a jury finds a defendant guilty of 'distribution of cocaine' without making a specific finding as to quantity . . . then the 'prescribed statutory maximum' is 20 years). Pursuant to 21 U.S.C. § 841(b)(1)(C), the statutory maximum sentence applicable to unspecified amounts of controlled substances is 20 years (240 months) imprisonment. Once again, Henry's 151 month sentence is substantially less than this statutory maximum sentence, and Apprendi does not apply. Thus, because neither of Henry's Apprendi claims have merit, he cannot demonstrate any actual prejudice resulting from his waiver of these claims.
Other circuits addressing the issue of the applicable maximum statutory sentence when a specific quantity of cocaine or cocaine base is not alleged in the charging documents have held that, by default, the applicable bar is the 20 year sentence provided for in 21 U.S.C. § 841(b)(1)(C). United States v. Thomas, 274 F.3d 655, 663-64 (2nd Cir. 2001); United States v. Solis, 299 F.3d 420, 448 (5th Cir. 2002); United States v. Stines, 313 F.3d 912, 915 (6th Cir. 2002); United States v. Buckland, 289 F.3d 558 (9th Cir. 2002); United States v. Gallego, 247 F.3d 1191, 1197 (11th Cir. 2001). The Third Circuit has not specifically addressed this issue in a published opinion. However, in the non-precedential opinion United States v. Zimmerman, 80 Fed. Appx. 160, at *4 (3d Cir. 2003), the Third Circuit held that there was no Apprendi violation, despite the failure to allege a specific quantity of drugs in the indictment, where the sentence imposed was within the lowest possible statutory maximum applicable to cocaine offenses under 21 U.S.C. § 841(b)).
Finally, the only other way for the Court to excuse Henry's procedural default is for him to demonstrate actual innocence. To establish actual innocence, a petitioner must show that "'in light of all the evidence' . . . it is more likely than not no reasonable juror would have convicted him." Bousley, 533 U.S. at 623. Actual innocence means factual innocence, not mere legal insufficiency. Id.; Johnson v. Hargett, 978 F.2d 855, 860 (5th Cir. 1992). Henry has not demonstrated that he did not commit the crime. Thus, the Court cannot excuse his waiver of these two claims on this ground. See Id.; Johnson v. Hargett, 978 F.2d 855, 860 (5th Cir. 1992).
In his ineffective assistance of counsel claim, Henry argues that he did not distribute a controlled substance because it contained the legal substance niacinamide. To the extent this argument is Henry's convoluted attempt to assert actual innocence, the Court disposes of this argument infra at 12-15.
In conclusion, Henry has not demonstrated cause and prejudice, or actual innocence, to excuse the waiver of his Apprendi claims. Moreover, the Court finds those claims to be without merit. Accordingly, the Court will dismiss both of Henry's Apprendi claims.
B. Ineffective assistance of counsel
Henry asserts that his defense counsel provided ineffective assistance by failing to argue that "cocaine niacinamide" was not a controlled substance or that it was not "crack." (D.I. 33 at 27-36.) In essence, his argument contains four points: (1) niacinamide was present in the drug he distributed; (2) niacinamide was not a scheduled or controlled drug at the time of his indictment and/or plea agreement; (3) to be found guilty of an offense under § 841, the drug has to be a Schedule I or II drug; and (4) thus, his counsel erred in not challenging the label "crack cocaine" placed upon the product he distributed. Id.
Ineffective assistance of counsel claims are properly raised in § 2255 proceedings rather than by a direct appeal. See United States v. Cocivera, 104 F.3d 566, 570 (3d Cir. 1996); see also United States v. Swint, Nos. CRIM. 94-276, CIV. 98-5788, 2000 WL 987861, at *5 (E.D.Pa. July 17, 2000). Henry's ineffective assistance of counsel claim is thus properly before the Court.
In order to establish that defense counsel provided ineffective assistance, a petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687-89 (1985). Under Strickland, a petitioner must demonstrate both: "(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's error the result would have been different." Strickland, 466 U.S. at 687-96. Where, as here, a petitioner entered a guilty plea on the advice of counsel, the second prong is modified so that the petitioner must show that there is a reasonable probability that, but for counsel's errors, the petitioner would have proceeded to trial instead of pleading guilty. See United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997) (citation omitted). A reasonable probability is one which is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. When applying these two prongs, the Court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 688-89.
Henry cannot satisfy either Strickland prong because his line of argument about the presence of niacinamide is completely without merit. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999). First, the fact that the distributed product contained niacinamide does not change the fact that the product was a "mixture containing cocaine base" or "crack cocaine base." Indeed, the Court of Appeals for the Third Circuit has explicitly rejected similar arguments, stating "[w]hile § 841 does not explicitly define "mixture," the Supreme Court has said that a drug combined with a carrier medium 'used to facilitate the distribution of the drug' is a mixture." United States v. Gori, 324 F.3d 234, 238 (3d Cir. 2003) (quoting Chapman v. United States, 500 U.S. 453, 466, 468 (1991)); see also, United States v. Hanson, 835 F.2d 815, 817 n. 5 (11th Cir. 1988) (It is "Congress' intent that a mixture of cocaine and other substances constitutes a 'controlled substance' under the law"). Moreover, "crack cocaine" is actually a mixture of cocaine powder and cutting agents. Two well-known cutting agents are sodium bicarbonate (baking soda) and niacinamide. See United States v. Brigman, 350 F.3d 310, 313 (3d Cir. 2003); United States v. Waters, 313 F.3d 151 (3d Cir. 2002). As such, the presence of niacinamide lends further support to the conclusion that the product Henry distributed was "crack cocaine base." Cf. United States v. Gurgiolo, 894 F.2d 56, 60-1 (3d Cir. 1990) ("In setting forth a schedule of sentences for various drug-related crimes, section 841 consistently bases particular sentences on the gross weight of any 'mixture or substance containing a detectable amount' of the illegal narcotic, such as . . . cocaine . . . Drugs containing detectable amounts of these substances thus should be weighed as a whole, irrespective of purity"). Thus, defense counsel was not deficient in failing to raise this fruitless objection.
Count One of the Indictment charged Henry with "knowingly distribut[ing] a mixture containing cocaine base, a controlled substance, in violation of [ 21 U.S.C. § 841(a)(1) and (b)(1) (A)]." (D.I. 7). The plea agreement states that Henry "knowingly, voluntarily, and intelligently states that . . . he knowingly distributed over 50 grams of crack cocaine base" and that he "knowingly, voluntarily, and intelligently stipulate[s] that the amount of crack cocaine base attributable to [him] is over 1.5 kilograms." (D.I. 13.)
Further, even if the presence of niacinamide was not irrelevant, Henry clearly voluntarily and knowingly pled guilty to distributing "crack cocaine base." See supra at 8. Henry's own admissions under oath, along with the Government's evidence presented during the plea colloquy, provide ample evidentiary support that the drug was, in fact, "crack cocaine." See United States v. Faulks, 143 F.3d 133, 138-39 (3d Cir. 1998); United States v. Powell, 113 F.3d 464, 470 (3d Cir. 1997). Therefore, defense counsel's failure to raise a non-meritorious objection does not constitute a deficient performance.
Finally, Henry cannot establish the requisite prejudice required by Strickland If defense counsel had raised an objection that the substance contained niacinamide, there is nothing to suggest that it would have altered the outcome of the case. Specifically, Henry does not allege that he would not have pled guilty if defense counsel had raised this objection. Further, the plea negotiated by defense counsel resulted in a much lower sentence than the possible maximum sentence. In exchange for his guilty plea, the Government agreed to, and did, recommend a substantial downward departure in sentencing. Without such a recommendation, Henry could have been sentenced to life imprisonment. (D.I. 13 at 1.) Instead, the Court accepted the Goverment's recommendation to sentence Henry at the "low end of the guideline range," 151 months imprisonment. (D.I. 39 at A-38.) This substantial benefit also precludes a finding of prejudice.
In short, Henry has failed to demonstrate that his defense counsel provided ineffective assistance. Accordingly, the Court will dismiss this claim.
C. Appointment of Counsel
Henry has filed two motions requesting the appointment of counsel in this matter. (D.I. 31; D.I. 32.) It is well established that Henry does not have a Sixth Amendment right to counsel in this habeas proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); United States v. Roberson, 194 F.3d 408, 415 n. 5 (3d Cir. 1999). A federal district court may, however, appoint counsel to represent an indigent habeas petitioner "if the interest of justice so requires." Rule 8(c), 28 U.S.C. foll. § 2255. For the reasons stated in this Memorandum Opinion, I have determined that the claims presented in Henry's § 2255 motion do not provide a basis for federal habeas relief. Accordingly, the interest of justice does not require the appointment of counsel.
V. CERTIFICATE OF APPEALABILITY
Finally, I must determine whether a certificate of appealability should issue. See Third Circuit Local Appellate Rule 22.2. The Court may issue a certificate of appealability only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
When a court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the petitioner must demonstrate that reasonable jurists would find it debatable: (1) wether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in is procedural rule. Slack v. McDaniel, 529 U.S. 473, 484 (2000). If the district court correctly invokes a plain procedural bar to dispose of a case, "a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id.
In the present case, I have concluded that Henry procedurally defaulted his two Apprendi claims and that his ineffective assistance of counsel claim is without merit. I am persuaded that reasonable jurists would not find my assessments debatable. Therefore, Henry has failed to make a substantial showing of the denial of a constitutional right, and the Court will not issue a certificate of appealability.
VI. CONCLUSION
For the reasons stated, Henry's 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence is dismissed as untimely. An appropriate order shall issue.
ORDER
At Wilmington, this 13th day of May, 2004, consistent with the Memorandum Opinion issued this same day;
IT IS HEREBY ORDERED that:
1. Petitioner Glendon Henry's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is DISMISSED, and the relief requested therein is DENIED. (D.I. 33.)
2. Henry's motions for the appointment of counsel are DENIED. (D.I. 31; D.I. 32.)
3. The Court declines to issue a certificate of appealability for failure to satisfy the standard set forth in 28 U.S.C. § 2253(c)(2).