Black v. U.S.

• Decision Date: 16 June 2004
• Docket Number: No. 03-11338.,03-11338.
• Parties: Randy Lamar BLACK, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1140

373 F.3d 1140

Randy Lamar BLACK, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 03-11338.

United States Court of Appeals, Eleventh Circuit.

June 16, 2004.

W. Carl Lietz, III, Stephanie Kearns, Fed. Pub. Def., Fed. Def. Program, Inc., Atlanta, GA, for Respondent-Appellant.

H. Allen Moye, Amy Levin Weil, U.S. Atty., Atlanta, GA, for Petitioner-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BARKETT and KRAVITCH, Circuit Judges, and FORRESTER^*, District Judge.

FORRESTER, District Judge:

Randy Lamar Black, currently serving four life sentences for drug-related offenses, filed the instant 28 U.S.C. § 2255 petition to vacate his life sentence for conspiracy to possess marijuana and methamphetamine based on a claim of ineffective assistance of counsel.

The conspiracy in this case involved two drugs, marijuana and methamphetamine, which carried different statutory maximum sentences. A conviction for conspiracy to distribute marijuana carried with it a statutory maximum sentence of ten years for a person in Black's position. See 21 U.S.C. § 841(b)(1)(D). A conviction for a conspiracy involving methamphetamine, however, was subject to a statutory maximum sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(viii). At the heart of Black's claim is his contention that he was wrongly sentenced to life imprisonment under his conspiracy conviction because the general verdict did not show that the jury found him guilty of a conspiracy that had the objective of distributing the drug with the higher sentence.

After Black's trial, the jury returned a general verdict of guilty as to conspiracy to possess with intent to distribute marijuana and methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846; four counts of knowingly and intentionally possessing with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1); and knowingly threatening to cause bodily injury to, and damage to the tangible property of, a witness in retaliation for communicating information to law enforcement in violation of 18 U.S.C. § 1513(b)(2). Black was sentenced to four life sentences, 360 months' imprisonment, and 120 months' imprisonment, all to run concurrently. Black's trial counsel neither requested a special verdict at trial nor objected to the imposition of Black's conspiracy sentence based upon a calculation of the quantities of methamphetamine as well as marijuana attributed to him. Black, represented by the same counsel, appealed to this court, contending that the trial court erred in its calculation of the drug quantities attributable to Black under his possession counts, among other issues.¹ None of the issues raised on direct appeal, however, related to the use of a general verdict form, nor did appellate counsel draw to the court's attention the cases of Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998), and United States v. Riley, 142 F.3d 1254 (11th Cir.1998), which were decided while the appeal was pending.

Generally, if a challenge to a conviction or sentence is not made on direct appeal, it will be procedurally barred in a 28 U.S.C. § 2255 challenge. Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.1994). A defendant may overcome this procedural default by showing both cause for his default as well as demonstrating actual prejudice suffered as a result of the alleged error.² Id. In the instant matter, Black essentially contends that his counsel was ineffective in failing to point out two cases, Edwards and Riley, decided after the appeal was filed, but before the appeal was decided that would limit the maximum sentence on the conspiracy count to ten years. In order to prevail on this claim, Black must show that counsel's performance was so deficient that it fell below an objective standard of reasonableness as well as demonstrate that but for the deficient performance, the outcome of the appeal would have been different. Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir.1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.1987)).

In this collateral attack, the district court held that trial counsel's failure to ask for a special verdict on the dual-object conspiracy count, or object to the inclusion of methamphetamine quantities for calculation of his conspiracy sentence, did not render his assistance to Black ineffective. Further, the district court found that Black did not suffer from ineffective assistance of appellate counsel when counsel did not bring to the attention of the court of appeal two cases decided while Black's direct appeal was still pending. After review, we affirm.

In order to evaluate whether appellate counsel's performance was objectively reasonable, it is important to understand the context in which Black's counsel would have received and understood Edwards and Riley. For Black's counsel, United States v. Dennis, 786 F.2d 1029 (11th Cir.1986), was the law of the circuit both at the time of trial and as of the date the direct appeal was filed. In Dennis, four defendants were found guilty of a conspiracy "to knowingly, willfully and intentionally distribute and possess with intent to distribute quantities of controlled substances, including heroin, cocaine, marijuana, and talwin," in violation of 21 U.S.C. § 846. Id. at 1032. Each defendant was also convicted of at least one substantive drug offense. Id. Two defendants had asked at trial that the jury return a special verdict specifying the object drugs in the conspiracy, but this request was denied by the district court judge. Id. at 1037-38. Under the applicable law, the maximum conspiracy sentence for marijuana was five years, while up to fifteen years imprisonment could be imposed for a conspiracy involving heroin or cocaine. Id. at 1038. Defendants received sentences ranging between four and ten years on the conspiracy count. Id.

On appeal, the Dennis defendants contended that the trial court erred in sentencing these defendants as to the conspiracy count in the absence of a special verdict indicating which drugs were found by the jury to have been the object of the conspiracy. Id. at 1033. While we agreed that a trial judge should require a jury to indicate which of the charged drugs were objects of the conspiracy, we held that a failure to do so was not necessarily reversible error. Id. at 1038-39.

Appellants may not prevail on their claim simply by showing that they were convicted under conspiracy instructions which, on their face, might permit the jury to return a guilty verdict if the conspiracy found did not involve [the higher-penalized drug]. It must also appear that the evidence would support such a construction of the verdict actually obtained.

Id. at 1039. The court found that the evidence showed beyond a reasonable doubt that the conspiracy involved cocaine and heroin and therefore affirmed. Id. at 1040, 1050. Accordingly, under the law of the circuit at the time of trial, and as of the filing of Black's direct appeal, Black's counsel would have understood that the lack of a special verdict was not of itself sufficient to create a successful appellate argument. Instead, Black's counsel would have known that he would be required under Dennis to show not only that the jury instructions could be read to allow jurors to convict Black of a marijuana-only conspiracy, but also that the evidence would support a construction that the jury intended to convict Black of only a marijuana conspiracy, to the exclusion of a construction that would show juror intent to convict Black of a marijuana and methamphetamine conspiracy. The government's evidence here begins with a marijuana transaction with Black, but thereafter all of the evidence dealt with methamphetamine and, therefore, counsel had no serious argument to advance under Dennis. It was with such an understanding of the law of the circuit that Black's counsel would have read and interpreted Edwards and Riley.

Both Edwards and Riley consider the sentencing of a defendant convicted by general verdict of a dual-object drug conspiracy when the sentence imposed does not exceed the penalty for the drug with the lowest maximum sentence. Edwards, 523 U.S. at 515, 118 S.Ct. 1475; Riley, 142 F.3d at 1256. In Edwards v. United States, the petitioners were convicted by general verdict of conspiracy to possess cocaine and cocaine base, or crack. 523 U.S. 511, 513, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998). As a general verdict form was used, the petitioners contended that the district court judge erred in considering the quantity of both drugs, and not merely cocaine, when imposing a sentence under the Sentencing Guidelines. Id. The Court held that "in the circumstances of this case the judge was authorized to determine for sentencing purposes whether crack, as well as cocaine, was involved in the offense-related activities." Id. The sentence imposed did not exceed the maximum sentence for a cocaine-only conspiracy and the Supreme Court held that it did not matter whether the judge assumed the jury convicted the petitioners of a conspiracy involving only cocaine or both cocaine and crack, because the Sentencing Guidelines instruct a judge to consider all "relevant conduct." Id. at 514, 118 S.Ct. 1475, U.S.S.G. § 1B1.3.

After the Supreme Court handed down its decision in Edwards, this court had occasion to consider a similar issue in United States v. Riley, 142 F.3d 1254 (11th Cir.1998). In Riley, as in Edwards, the petitioners had been convicted by a general verdict for a conspiracy to possess with intent to distribute two drugs, cocaine powder and cocaine base. Id. at 1255. The Riley petitioners, too, were sentenced under the Guidelines on the basis of both forms of cocaine and appealed the district court judge's decision to consider the...