Opinion
Criminal No. 97-127 (JRT/JMM), Civil No. 00-1870 (JRT)
January 24, 2003
Kenny Rucker, #07732-041, Rochester, MN, petitioner pro se.
David J. MacLaughlin, Assistant United States Attorney, Minneapolis, MN, for respondent.
MEMORANDUM OPINION AND ORDER
Petitioner Kenny Rucker ("Rucker") has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of trial counsel. For the reasons discussed below, the Court denies Rucker's motion.
BACKGROUND
On January 5, 1998, Rucker pleaded guilty to one count of possession with intent to distribute cocaine base ("crack") in violation of 21 U.S.C. § 841(a) and § 841(b)(1)(A). Prior to sentencing, Rucker expressed dissatisfaction with his trial counsel, James Ostgard ("Ostgard"), and asked, pro se, for permission to withdraw his guilty plea. The Court denied this request, and on June 29, 1998 sentenced Rucker to 196 months of imprisonment followed by five years of supervised release. Rucker filed a timely appeal to the Eighth Circuit, arguing that the Court abused its discretion in refusing to allow him to withdraw his guilty plea. The Eighth Circuit affirmed this Court's decision, holding that the Court did not abuse its discretion, and that all of Rucker's other arguments were foreclosed by his guilty plea. See United States v. Rucker, No. 98-2834, 1999 WL 627576 (8th Cir. Aug. 16, 1999) (per curiam). On August 7, 2000, Rucker filed the present habeas corpus petition pursuant to 28 U.S.C. § 2255.
ANALYSIS
Rucker's § 2255 petition alleges that he was denied effective assistance of counsel in violation of the Sixth Amendment. Rucker's claim consists of three grounds: (1) his counsel did not investigate and pursue a Fourth Amendment claim and failed to inform him that a motion to suppress evidence had been made; (2) his counsel did not move the Court to allow Rucker to withdraw his guilty plea; and (3) his counsel did not object to certain matters at sentencing. Before discussing the substance of Rucker's petition, the Court must analyze the government's contention that the Court cannot consider Rucker's claims.
I. Waiver of Collateral Challenges
The government contends that Rucker's entire § 2255 petition must fail because Rucker's plea agreement waived his right to collaterally challenge his sentence. Rucker argues that his claims are still valid because they are based upon allegations of ineffective assistance of counsel.
The government correctly notes that when a criminal defendant has pleaded guilty to an offense, "he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973). A "defendant who pleads guilty upon the advice of counsel `may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received was not within the standards'" laid out in Strickland v. Washington, 466 U.S. 668 (1984), to judge ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (quoting Tollett, 411 U.S. at 267).
Rucker's habeas claims all allege ineffective assistance of counsel, and all relate to his guilty plea. Therefore, the Court finds that Rucker's guilty plea and waiver do not automatically bar consideration of his petition. If Rucker can demonstrate that ineffective assistance of counsel rendered his guilty plea not voluntary and intelligent, then his § 2255 claims may proceed. The Court will address the substance of these questions in Part III of this Order.
II. Whether Claims are Cognizable under § 2255
The government also argues that Grounds Two and Three of Rucker's petition are not cognizable under § 2255. Ground Two of Rucker's petition alleges that his trial counsel "failed to file a motion to withdraw the guilty plea where [Rucker] had a fair and just reason for withdrawing the plea." (Pet. at 5.) The government claims this ground cannot be considered because it was already raised on direct appeal and decided by the Eighth Circuit.
The Eighth Circuit did consider whether this Court was correct to deny Rucker's request to withdraw his plea. However, it is not entirely clear from the Eighth Circuit's unpublished opinion on what grounds the court based its ruling. See Rucker, 1999 WL 627576. On appeal, Rucker's appointed counsel (who was different from his trial counsel) moved to withdraw and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). See id. at *1. The Anders brief challenged this Court's refusal to grant Rucker's pro se motion to withdraw his guilty plea before sentencing. Rucker also filed a pro se supplemental brief with the Court of Appeals, arguing that his plea was not knowing and voluntary. Id. The Eighth Circuit concluded that "the District Court did not abuse its discretion by refusing to allow Rucker to withdraw his plea." Id. (citation omitted). The Court of Appeals went on to state that "Rucker's remaining pro se arguments are foreclosed by his guilty plea . . ., are clearly without merit and do not warrant further discussion, or should be raised in a 28 U.S.C. § 2255 action." Id. (citations omitted). This strongly suggests that although the court's holding touched upon Rucker's effort to withdraw his guilty plea, the court did not consider his contention that he could not withdraw his guilty plea due to ineffective assistance of counsel, reserving it for Rucker to address in a § 2255 motion. Previous Eighth Circuit cases support this conclusion. See, e.g., United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998) (holding that the question of whether district court should have allowed defendant to withdraw guilty plea based upon alleged ineffective assistance of counsel is more properly raised in a § 2255 motion than on direct appeal); United States v. Phillips, No. 97-1725, 1998 WL 121391 (8th Cir. Jan. 26, 1998) (rejecting defendant's appeal of district court's denial of motion to withdraw guilty plea, and refusing to consider ineffective assistance of counsel claims on direct appeal because such claims "are best presented" in a § 2255 motion). See also United States v. Davis, No. 99-4020, 2000 WL 1521611 at *2 (8th Cir. Oct. 16, 2000) ("ineffective assistance claims are generally presented in collateral proceedings and not on direct appeal."). Therefore, the Court finds that Rucker's ineffectiveness claims relating to his guilty plea are properly before the Court.
Ground Three of Rucker's petition alleges that his counsel failed to object to a sentence enhancement for possessing a gun, and to Rucker's being sentenced for possession of crack cocaine. The government argues that these contentions fail, because claims that the district court erroneously applied Sentencing Guidelines are not cognizable under § 2255. See Auman v. United States, 67 F.3d 157, 160-61 (8th Cir. 1995) ("[O]rdinary questions of guideline interpretation falling short of the `miscarriage of justice' standard do not present a proper section 2255 claim."). In support, the government cites Burke v. United States, 152 F.3d 1329 (11th Cir. 1998) and Graziano v. United States, 83 F.3d 587 (2d Cir. 1996). These cases, however, as well as the Eighth Circuit's decision in Auman, are inapposite because they deal with straightforward challenges to a court's application of the Sentencing Guidelines. In this case, Rucker does not challenge the Court's application of the Guidelines per se, but claims ineffective assistance of counsel based on his lawyer's failure to object to the Court's application of the Guidelines. This remains a Sixth Amendment question, and is therefore suitable for review under § 2255.
III. Voluntary Intelligent Nature of Guilty Plea — Ineffective Assistance of Counsel
In order to prevail on a claim of ineffective assistance of counsel, Rucker must show that: (1) his trial counsel's performance was deficient, and (2) he was prejudiced by that deficient performance. Strickland, 466 U.S. at 687. When evaluating the first prong, the court must "indulge a strong presumption" that counsel performed as a reasonably competent attorney. Id. at 689. The defendant has the burden of showing that counsel's performance "fell below an objective standard of reasonableness." Id. at 688. Because Rucker pleaded guilty, to establish the second prong he must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 370. See Strickland, 466 U.S. at 694.
A. Ground One
Rucker's first ground alleges that his trial counsel did not investigate and pursue a Fourth Amendment claim that the narcotics were seized during an illegal search. Rucker also claims that counsel did not inform him that a motion to suppress the narcotics had been made. Rucker contends that if counsel had told him about the motion to suppress, he would not have pleaded guilty.
As discussed above, Rucker can overcome the waiver of collateral challenges to his sentence only if he demonstrates that trial counsel's ineffectiveness undermined "the voluntary and intelligent character of the guilty plea." See Tollett, 411 U.S. at 267; Hill, 474 U.S. at 58. The Court evaluates whether Rucker's trial counsel was ineffective under the two-pronged Strickland test. Hill, 474 U.S. at 58.
First, Rucker must show that Ostgard's performance was deficient and not within the range of competence demanded of attorneys in criminal cases. Id.; Strickland, 466 U.S. at 687; Tollett, 411 U.S. at 266. Rucker argues that Ostgard's performance was deficient because he would not pursue a Fourth Amendment claim that Rucker believed had merit. Specifically, Rucker believes that the seizure of drugs from a vehicle parked inside his garage was beyond the scope of the search warrant, which listed only the premises of his home and his person. Rucker contends that because "motor vehicle" was crossed out on the search warrant, the police had no authority to search any motor vehicle located on the premises. This contention is contrary to settled law. See United States v. Bulgatz, 693 F.2d 728, 730 n. 3 (8th Cir. 1982). In Bulgatz, criminal defendants argued that a search warrant "did not authorize search of their car parked in the garage attached to the house." Id. The court stated that the "fact that [the] affiant had crossed out the words `motor vehicle' on the search warrant application did not preclude search of an automobile on the premises, but only indicated that the general object of the search was the `premises,' not the automobile." Id.
Rucker argues that Bulgatz does not apply, and instead cites several cases dealing with the "automobile exception" to the search warrant requirement. See California v. Carney, 471 U.S. 386 (1985); Caparo v. Bunt, 44 F.3d 690 (8th Cir. 1995); United States v. Long, 900 F.2d 1270 (8th Cir. 1990). However, the automobile exception is not implicated simply because an automobile was searched. The exception applies where no search warrant exists, and it allows police to "search a vehicle if it `is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes.'" Long, 900 F.2d at 1277 (quoting Carney, 471 U.S. at 392). Rucker's cases do not apply to the present situation, in which police had a valid warrant to search the premises, and "the premises" included an automobile. See Bulgatz; United States v. Napoli, 530 F.2d 1198, 1200-1201 (5th Cir. 1976). Therefore, the Court finds that Rucker's Fourth Amendment claim is without merit. Because an attorney cannot be found ineffective for failing to pursue a meritless claim, Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir. 1994), the Court also finds that Ostgard's performance was not deficient on this ground. Therefore, Rucker could not have been prejudiced. Accordingly, the Court determines that Ground One of Rucker's petition fails, and does not demonstrate that his guilty plea was involuntary or unintelligent.
Rucker also cites an additional case, United States v. Giddens, Crim. No. 99-348 (D.Minn.), claiming that the court in that case granted the defendant's motion to suppress. The Clerk of Court's records on this District of Minnesota case indicate that no motion to suppress was ever filed in Giddens. Therefore, in the absence of any further information or authority from Rucker, the Court must disregard this citation.
Rucker's petition also discusses other exceptions to the Fourth Amendment warrant requirement. The Court also rejects those arguments, because in this case police had a valid warrant.
B. Ground Two
In Ground Two, Rucker alleges that Ostgard was ineffective because he did not assist Rucker in withdrawing his guilty plea. Prior to sentencing, Rucker sought, pro se, to withdraw his plea, contending that Ostgard would not help him do so, and that he had become dissatisfied with his representation. Rucker now contends that Ostgard's failure to press the Court to accept Rucker's withdrawal on this ground constitutes ineffective assistance.
A defendant may withdraw a guilty plea only if he shows a "fair and just reason" to do so. Fed.R.Crim.P. 32(e); United States v. McMullen, 86 F.3d 135, 137 (8th Cir. 1996). The decision whether to allow Rucker to withdraw his plea was completely within this Court's discretion. United States v. Abdullah, 947 F.2d 306, 311 (8th Cir. 1991). In Abdullah, a defendant sought to withdraw his guilty plea, arguing that he was denied effective assistance of counsel because his attorney pressured him into pleading guilty. Id. at 312. The Court of Appeals rejected this argument, noting that the defendant stated during Rule 11 colloquies that he was completely satisfied with his counsel's representation, and "never indicated in any manner that he was under pressure from counsel to plead guilty." Id. This Court finds that, as in Abdullah, Rucker's "failure to assert any objections to counsel's performance at the Rule 11 hearing refutes any claim of ineffective assistance of counsel as a basis of withdrawing his plea." Id. Moreover, as in Abdullah, this Court has "reviewed the record and find[s] no support for ineffective assistance of counsel under the standard established in Strickland" or Hill. Id. Even if Rucker's allegations were true, and Ostgard performed deficiently by failing to help him withdraw the plea, there is no reason to believe that the Court would have ruled differently on the request. Rucker had previously expressed confidence in Ostgard, and in the Court's view, Rucker presented no evidence at the time of sentencing that Ostgard's representation was inadequate. The Court stands by its statement at sentencing that Ostgard did "a fine job of representing [Rucker's] interests, and in trying to focus on a way to get [his] sentence down." (Sent. Tr. at 16.)
During the plea colloquy, Rucker answered "Yes" when the Court asked whether he was "fully satisfied with the advice, counsel, and assistance that Mr. Ostgard has provided you?" (Guilty Plea Tr. at 5.)
Rucker relies on United States v. Alvarez-Tautimez, 160 F.3d 573 (9th Cir. 1998), to show that counsel's performance was deficient. That case is inapposite because there, the district court had not yet been accepted the defendant's guilty plea. Thus, it could be withdrawn for any reason. Id. at 576. Once accepted, the court has discretion whether to allow a defendant to withdraw a guilty plea. United States v. Abdullah, 947 F.2d 306, 311 (8th Cir. 1991).
The Court therefore determines that Rucker has not shown Ostgard's representation regarding withdrawal of the guilty plea to be ineffective. Because Rucker has not shown this, he cannot prove that his plea was not voluntary or intelligent, and Ground Two of his petition must fail.
C. Ground Three
Finally, Rucker contends that Ostgard provided ineffective assistance by failing to object to two sentencing matters: a two-level enhancement for possession of a weapon, and a sentence for crack cocaine.
1. Weapon Enhancement
Rucker claims that Ostgard should not have stipulated to a two-level sentence enhancement for possession of a weapon under U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(b)(1), and should have objected to the government's request for that enhancement. The Court rejects this argument.
The Court finds that Rucker has not shown Ostgard's performance to be deficient. Evidence in the record suggests that Ostgard may have made a strategic choice not to object to the enhancement in order to increase Rucker's chances of receiving a sentence reduction for acceptance of responsibility. The plea agreement states "the defendant argues, that despite fleeing, he should receive a reduction in offense level for acceptance of responsibility because he has always admitted to his drug trafficking crime and possession of the gun in this case." (Plea Agr. at 5 (emphasis added).) Ostgard made a similar argument at Rucker's sentencing. (See Sent. Tr. at 4-8.) The United States Supreme Court has recognized that such a strategy can be advisable: "[F]aithful representation of the interest of [a] client . . . frequently involves highly practical considerations. . . . Often the interests of the accused are not advanced . . . by contesting all guilt." Tollett, 411 U.S. at 268 (citations omitted). The Court finds it likely, and reasonable, that Ostgard made a strategic choice by not objecting. Not only may such choices be advisable, but when thoroughly considered they are "virtually unchallengeable." Strickland, 466 U.S. at 691. The evidence supports that Ostgard made such a choice, and Rucker has presented no evidence to the contrary.
Even if Ostgard's performance in this regard was deficient, however, Rucker has not demonstrated prejudice. Specifically, Rucker has not shown that an objection to the enhancement would have succeeded. In fact, the cases suggest that it would not have. In order to support an enhancement, the government must establish a relationship between Rucker's possession of the firearm and the offense that he committed. United States v. Bost, 968 F.2d 729, 732 (8th Cir. 1992). The government can meet this burden without showing that Rucker ever used or even touched the gun. United States v. Turpin, 920 F.2d 1377, 1386 (8th Cir. 1990). Instead, "[c]onstructive possession will suffice to justify an upward adjustment for possession of a firearm during the commission of an offense." Id. See Bost, 968 F.2d at 732. Constructive possession "includes ownership, dominion, or control over the item, or dominion over the premises." United States v. McCracken, 110 F.3d 535, 541 (8th Cir. 1997)
In this case, police acting on a valid warrant seized drugs from a vehicle in Rucker's garage; the weapon was found in a closet inside his residence. It is clear from these facts that Rucker was at least in constructive possession of the seized weapon. Based on this analysis, it is highly likely that the Court would have granted the two-level enhancement even if Rucker's counsel had objected. Thus, the Court finds that Rucker cannot demonstrate prejudice.
Rucker cites two Sixth Circuit cases to argue that he should not have received the two-level enhancement. Both of these cases can be distinguished on their facts. In United States v. Zimmer, 14 F.3d 286 (6th Cir. 1994), the court found that the defendants had shown it "clearly improbable" that hunting rifles found in the same house as marijuana were connected with their drug offense. Id. at 290-91. In United States v. Peters, 15 F.3d 540 (6th Cir. 1994), the court deferred to the district court's factual determination, noting that the district court's finding that a pistol was not connected to the offense was "based upon consideration of the evidence heard at trial as a whole." Id. at 546. In this case, Rucker has not demonstrated, and this Court cannot determine, that the gun seized at Rucker's house was unconnected to the drug offense. Even though this precise question is not before the Court, as noted above, the evidence suggests that Rucker had at least constructive possession of the gun.
2. Burden of Proving "Crack"
Rucker argues that Ostgard was ineffective at sentencing because he allowed Rucker to be sentenced under enhanced guidelines for possession of crack rather than the lesser guidelines for possession of "cocaine base." The sentencing guidelines were amended in 1993 to clarify that not all cocaine base is crack, and that in order for the enhanced sentence to apply, the government must prove that the defendant possessed crack, not some other form of cocaine base. U.S.S.G. § 2D1.1(c), note D; United States v. Adams, 125 F.3d 586, 591 (7th Cir. 1997) (holding that the government must prove that defendant possessed crack form of cocaine base for sentence enhancement to apply). Rucker argues that the government did not present evidence that the narcotics were crack, and that Ostgard should have objected to his being sentenced under the enhanced guidelines.
The Court finds that Rucker has not shown Ostgard's performance in this regard to be deficient. The facts in this case are very similar to those in Burkhalter v. United States, 203 F.3d 1096 (8th Cir. 2000). In that case, the defendant stipulated in his plea agreement and stated to the court that the controlled substance he possessed was "cocaine base (`crack cocaine')." Id. at 1097. The defendant later argued that his counsel should have demanded that the government prove the substance was crack. The court held that after all of the defendant's admissions, it could not find "that it was unreasonable for counsel to accept his client's admission that these substances were crack cocaine." Id. at 1098 (citing Strickland, 466 U.S. at 691).
In Strickland, the Supreme Court held that "[w]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland v. Washington, 466 U.S. 668, 691 (1984).
In this case, Rucker repeatedly admitted in his guilty plea that he was pleading guilty to possession with intent to distribute "cocaine base (`crack')." (See Plea Agr. ¶¶ 1, 2, 11(A).) The term "crack" was also used repeatedly in the plea colloquy and sentencing. Rucker correctly notes, however, that the term "cocaine base" was occasionally used — seemingly interchangeably with "crack" — both during the plea colloquy and sentencing. In support of his argument, Rucker cites Rice v. United States, 971 F. Supp. 1297 (D.Minn. 1997), in which the court held that the terms "crack" and "cocaine base" had become so confused that the defendant may not have understood that he was pleading guilty to an offense involving crack. See id. at 1300-01. In Rice, the indictment specifically accused the defendant of possessing "cocaine base (`crack')." Id. at 1300. The defendant's plea agreement, however, did not mention crack, and instead only stated that the defendant agreed that "the substance was cocaine base." Id.
One example occurred during the plea colloquy:
The Court: The drugs, the approximately 80 grams of crack, these are the drugs that you possessed and were intending to distribute to others? Is that correct Mr. Rucker?
Defendant: Yes.
(Guilty Plea Tr. at 20 (emphasis added).)
Furthermore, the judge who accepted the defendant's plea used both terms, sometimes indicating that the substance was crack, and other times suggesting that the government needed only to "prove that the substance was cocaine base." Id. Based on these inconsistencies, the Rice court was "left with an uneasy feeling that all involved [in defendant's case] equated cocaine base with crack," even though there was no clear evidence that the substance was, in fact, crack. Id. The court therefore held that further discovery should be conducted to determine whether cocaine base was erroneously equated with crack, and whether that undermined the voluntary and intelligent nature of the defendant's guilty plea. Id. at 1299, 1301 (citing Murray v. United States, Civ. No. 96-1132, slip op. at 4 (D.Minn. Apr. 9, 1997)).
This colloquy is one example:
The court: And [the plea agreement] indicates that you also agree that you understand that the United States could prove that the substance was cocaine base. Has your lawyer told you, has the Government made a test of whatever substance you had?
Defendant Rice: Yes.
The court: And do you believe that they'd be able to prove that it was, in fact, cocaine base or crack?
Defendant Rice: Yes.
Rice v. United States, 971 F. Supp. 1297, 1300 (D.Minn. 1997)
Any court considering a case in which the defendant is charged with an offense involving crack must keep in mind the Rice court's concerns. Here, however, this Court finds that the record and facts are far clearer than in Rice. Unlike in Rice, Rucker's plea agreement clearly stated that he was pleading guilty to possession of crack. Furthermore, after a careful review of the record, the Court concludes that even though the term "cocaine base" was used in various proceedings, it was clear to Rucker that "crack is but a species of cocaine base," and that he read the parenthetical qualification of the plea agreement as consistent with that understanding. See Rice, 971 F. Supp. at 1300. Unlike in Rice, the Court can find no suggestion in the record that "since the Government could prove that the substance was cocaine base, it would necessarily have proven that the substance was crack." Id. As stated above, the facts here are much closer to those in Burkhalter. As in that case, Rucker clearly pleaded guilty to an offense involving crack, and admitted before the Court that the substance in question was crack. The Court finds it reasonable for Ostgard to have accepted those admissions, and to have not insisted that the government prove that the substance seized from Rucker actually was crack.
I.e., "80 grams of cocaine base (`crack')."
Therefore, the Court cannot conclude that Ostgard's performance in this regard was deficient. Accordingly, no prejudice inquiry is needed.
Because Rucker has not demonstrated ineffective assistance of counsel in regard to either sentencing issue, he cannot show that his plea was not voluntary or intelligent. Therefore, Ground Three of Rucker's petition fails. With this determination, the Court finds that Rucker is not entitled to any relief under § 2255, and an evidentiary hearing is unnecessary.
IV. Motion to Proceed In Forma Pauperis
Also before the Court is Rucker's petition for leave to proceed in forma pauperis ("IFP"). It appears, however, that Rucker has no need for IFP status because there is no filing fee for a motion brought under § 2255, there is no service of process requirement for such a motion, and Rucker has not shown any other need for IFP status in this matter. Therefore, Rucker's petition to proceed in forma pauperis will be denied as moot.
V. Appealability
A district court may issue a certificate of appealability only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 523 (8th Cir. 1997). To make such a showing, the issues must be debatable among reasonable jurists, a court must be able to resolve the issues differently, or the case must deserve further proceedings. Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994).
Although the Court has determined that Rucker's § 2255 motion should be denied, the Court believes that Rucker's ineffective assistance of counsel claim with respect to the crack sentencing issue meets this stringent standard. The Court will therefore grant a certificate of appealability as to that issue.
In contrast, the Court finds that Rucker has not made a sufficient showing as to the all the other claims raised in his § 2255 petition. The Court therefore denies a certificate of appealability with respect to those issues.
ORDER
Based on the foregoing, and all of the records, files, and proceedings herein, IT IS HEREBY ORDERED that:
1. Rucker's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Docket No. 61] is DENIED;
2. Rucker's Petition and Affidavit for Leave to Proceed In Forma Pauperis [Docket No. 60] is DENIED AS MOOT;
3. The Court GRANTS a certificate of appealability, limited to Rucker's ineffective assistance of counsel claim with respect to whether his counsel should have objected to the sentence for crack cocaine. The Court DENIES a certificate of appealability as to all other issues.