Beatty v. U.S., s. 00 Civ. 9097(SHS).

• Decision Date: 17 April 2001
• Docket Number: No. 94 CR. 631(SHS).,Nos. 00 Civ. 9097(SHS).,s. 00 Civ. 9097(SHS).,94 CR. 631(SHS).
• Citation: 142 F.Supp.2d 454
• Parties: Duane BEATTY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

142 F.Supp.2d 454

Duane BEATTY, Plaintiff, v. UNITED STATES of America, Defendant.

Nos. 00 Civ. 9097(SHS).

No. 94 CR. 631(SHS).

United States District Court, S.D. New York.

April 17, 2001.

Duane Betty, Lompoc, CA, pro se.

OPINION & ORDER

STEIN, District Judge.

Duane Beatty brings this pro se petition, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence for possession with intent to distribute "crack" cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). He contends that: (1) his sentence violated his due process rights pursuant to Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in that the quantity of drugs for which he was held responsible was not submitted to the jury or proved beyond a reasonable doubt, (2) he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel had a conflict of interest, (3) he was denied due process by not receiving new counsel at a fact hearing held subsequent to his conviction, (4) he was improperly sentenced because it was not proven by a preponderance of the evidence that he engaged in the uncharged sales of "crack" cocaine attributed to him as relevant conduct for sentencing purposes, (5) the indictment against him should have been dismissed because perjured testimony was presented to the grand jury. For the reasons set forth below, Beatty's petition is denied.

I. BACKGROUND

On January 17, 1997, Duane Beatty was convicted by a jury of selling "crack" cocaine to a government informant. During the trial, the parties had stipulated that a government chemist, Ann Marie Stec, if called as a witness, would testify that six plastic bags given to the informant by Beatty contained "approximately 500" plastic vials containing 15.5 grams of "a rock-like white substance," which substance contained detectable amounts of "crack." Trial Tr. at 59-61. Accordingly the jury was told not to consider the quantity of "crack" in evaluating Beatty's guilt:

If you find that the substance involved in this case was crack cocaine, you need not be concerned with quantity. So long as you find that the defendant knowingly distributed or possessed crack cocaine with the intent to distribute it, the amount involved is not important.

Trial Tr. at 370 (Jury Charge).

Attorney Lynne Stewart was Beatty's trial counsel. Beatty had specifically requested that Stewart be appointed after he had twice dismissed other court-appointed attorneys. United States v. Beatty, 94 Cr. 631, Hearing Tr. dated April 9, 1997, at 4. Although a defendant seeking free, court-appointed counsel is usually assigned to whichever member of the Criminal Justice Act panel is on duty the day the defendant is arraigned, Judge Schwartz, the prior judge in this case, honored Beatty's specific request to be represented by Stewart. See id.

Nonetheless, four months after he was found guilty, Beatty asked the Court to dismiss Stewart and to appoint new counsel to represent him in the hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir.1979) to determine the amount of drugs for which he would be held responsible at sentencing because he believed Stewart suffered from a conflict of interest. Id. at 5-7. Specifically, Stewart was facing a New York state charge of criminal contempt of court for refusing to testify before a grand jury regarding a fee arrangement she had with a client. Her asserted reason for refusing to testify was that doing so would result in the disclosure of a client's confidences. Id. at 6; Matthew Goldstein, Lawyer Faces Charge of Criminal Contempt, Testimony on Fee Arrangement Demanded, N.Y. L.J., April 9, 1997, at 1. A New York state judge had dismissed that charge in 1993, but the case was on appeal before the Appellate Division, First Department, at the time of Beatty's trial. United States v. Beatty, 94 Cr. 631, Hearing Tr. dated October 31, 1997, at 21; Goldstein, supra, at 1. Beatty alleged that the pending charge created a conflict that in turn caused Stewart to make unsound strategic decisions during his trial. United States v. Beatty, 94 Cr. 631, Hearing Tr. dated April 9, 1997, at 3. The Court disagreed and denied Beatty's request to appoint new counsel. Id. at 5-6.

Against the repeated and strong advice of the Court, Beatty represented himself during the hearing, rather than have Stewart continue her representation. At the hearing, the Court found by a preponderance of the evidence that Beatty was responsible for the sale of 242 grams of "crack" cocaine as relevant conduct for the purposes of sentencing. Beatty was subsequently sentenced to 14 years in prison plus four years of supervised release.

After the Fatico hearing, Beatty moved to set aside the verdict pursuant to Fed. R. Cr. P 33 on the basis of the newly discovered evidence of Stewart's criminal charge. United States v. Beatty, 94 Cr. 631, Hearing on October 31, 1997 at 21. He again argued that Stewart's pending criminal charge caused a conflict of interest that violated his Sixth Amendment right to effective assistance of counsel and the Court again denied the motion. Id. at 23.

Beatty raised the issue again on appeal with new court-appointed counsel. United States v. Griffen et al., 98-1460, Brief for Defendant Appellant. The Second Circuit affirmed the judgment of the district court on October 1, 1999. United States v. Griffen, et al., No. 98-1460, 1999 WL 972675, 198 F.3d 235 (2d Cir.1999) (unpublished opinion),¹ and the United States Supreme Court subsequently denied Beatty's petition for a writ of certiorari, Beatty v. United States, 528 U.S. 1174, 120 S.Ct. 1202, 145 L.Ed.2d 1105 (2000).

Beatty brought this petition on November 27, 2000. He then moved on January 18, 2001 to amend his petition pursuant to Fed.R.Civ.P. 15 to add a claim that perjured testimony was presented to the grand jury. Specifically, Beatty cites an affidavit of Assistant United States Attorney Sharon L. McCarthy dated July 3, 1997, which was filed in United States v. Brown, S2 94 Cr. 631 (S.D.N.Y.), in which McCarthy avers that Brown had perjured himself before the Grand Jury that returned the indictment against Beatty. Beatty had moved to dismiss the indictment before his trial on the grounds that Brown's testimony had been perjured, but after reviewing the facts, including the sealed grand jury testimony, Judge Schwartz found that the Count on which Beatty was ultimately tried was sufficiently supported by testimony independent of Brown. See United States v. Beatty, No. 94 Cr. 631, 1996 WL 308677, at **2-3 (S.D.N.Y. June 7, 1996).

II. DISCUSSION

A. Sentencing Claims

Even if Jones and Apprendi can be retroactively applied on initial collateral review, compare United States v. Moore, 198 F.R.D. 39, 40-41 (N.D.N.Y.2000), and Talbott v. State of Indiana, 226 F.3d 866, 869 (7th Cir.2000), with Parise v. United States, 117 F.Supp.2d 204, 207-08 (D.Conn. 2000), Beatty's sentencing arguments are foreclosed by the recent decision of the United States Court of Appeals for the Second Circuit in United States v. White, 240 F.3d 127 (2d Cir.2001). In White, defendant Luis Noel Cruz argued that his sentence violated his right to due process pursuant to Apprendi because at his trial, as here, the drug quantity was not included as an element of the offense charged to the jury. 240 F.3d at 134. Rather, it had been stipulated to by the parties prior to trial. Id. The court held that because Cruz entered into the stipulation, and did not object to the failure to include drug quantity in the elements of the offense charged to the jury, any error was harmless. Id. at 134-35.

Beatty, like Cruz, stipulated at trial to the weight and the admissibility of the drugs he was charged with possessing with intent to distribute and, like Cruz, did not object to the failure to include drug quantity in the elements of the offense charged to the jury. Accordingly, any error was harmless. Moreover, Beatty's sentence of 14 years is less that the 20-year statutory maximum sentence pursuant to 21 U.S.C. § 841(b)(1)(C) for possession with intent to distribute an indeterminate amount of drugs. Thus, his sentence was not imposed in violation of his due process rights pursuant to Apprendi, because Apprendi does not control "where, as here, factual determinations were used to sentence the defendant to a sentence within the maximum allowed by statute." White, 240 F.3d at 136.

B. Ineffective Assistance of Counsel Claim

At the outset, it is worth noting that Beatty raised on appeal the issue of ineffective assistance of counsel due to a conflict of interest, and the Second Circuit, without discussing the claim, held that it "carefully considered Beatty's remaining arguments and [found] them to be without merit." Griffen, 1999 WL 972675, at *3. Even so, "[a] defendant is generally permitted to raise an ineffective assistance claim in a collateral attack." Amiel v. United States, 209 F.3d 195, 198 (2d Cir. 2000) (quoting Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir.1993)); Hurtado v. United States, 2000 WL 890189, at *2 (S.D.N.Y. July 5, 2000). However, "if the defendant had new counsel on direct appeal and the claim is based solely on the record developed at trial" the claim is more appropriately considered on direct appeal, rather than in a petition pursuant to 28 U.S.C. § 2255. See Amiel, 209 F.3d at 198 (citing Billy-Eko, 8 F.3d at 115-16); Hurtado, 2000 WL 890189, at *2. Because Beatty's claim of ineffective assistance includes facts outside the trial record, although included in subsequent hearings, the Court will consider the claim on this petition despite the Second Circuit's ruling on his direct appeal.

The right to conflict-free representation is inherent in the Sixth Amendment right to counsel. Armienti v. United States, 234 F.3d 820, 823 (2d Cir.2000). Thus, a defendant's Sixth...