Klein v. U.S.

• Decision Date: 19 December 2000
• Docket Number: No. 97-CV-295-J.,97-CV-295-J.
• Citation: 125 F.Supp.2d 460
• Parties: Alan Bruce KLEIN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Wyoming

125 F.Supp.2d 460

Alan Bruce KLEIN, Petitioner, v. UNITED STATES of America, Respondent.

No. 97-CV-295-J.

United States District Court, D. Wyoming.

December 19, 2000.

COPYRIGHT MATERIAL OMITTED

Donald E. Miller, Graves, Miller & Kingston, Cheyenne, WY, Thomas J. Marlowe, Phoenix, AZ, for plaintiff.

John R. Green, U.S. Attorney's Office, Cheyenne, WY, for defendant.

ORDER GRANTING IN PART, AND DENYING IN PART PETITION UNDER 28 U.S.C. § 2255

ALAN B. JOHNSON, District Judge.

This matter came before the court on October 19, 2000, for hearing on petitioner's motion under 28 U.S.C. § 2255. Counsel appeared and presented arguments at the hearing. The Court, having considered the motion, the response, the pleadings of record, the evidence, the applicable law, and being fully advised, FINDS and ORDERS as follows:

Background

Petitioner was indicted on January 26, 1995 on one count of conspiracy to possess with intent to distribute and distribution of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Petitioner was subsequently convicted, by a jury. A sentence of 240 months of imprisonment and eight years of supervised release was imposed. The sentence reflects consideration by the court of petitioner's prior felony convictions, that petitioner distributed at least one kilogram but less than three kilograms of methamphetamine, and that petitioner possessed a gun upon his arrest.

Petitioner appealed the Judgment and Sentence. The United States Court of Appeals for the Tenth Circuit affirmed. United States v. Klein, 93 F.3d 698 (10th Cir.1996) cert. denied Klein v. United States, 519 U.S. 1048, 117 S.Ct. 624, 136 L.Ed.2d 547(1996).

Petitioner filed this petition pursuant to 28 U.S.C. § 2255 in March of 1998. The government filed its answer on June 12, 1998. Other pleadings were filed, including a motion to stay. The motion to stay proceedings was granted on August 13, 1998. On September 17, 1999 this Court granted the motion to lift the stay of proceedings. Petitioner submitted a memorandum of supplemental authority on August 21, 2000, raising a claim under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The petition was argued to the Court on October 19, 2000.

Analysis

Petitioner contends that:

1. His trial counsel was ineffective for failing to review the indictment to ensure that the Indictment was presented to the jury in redacted form before it was submitted to the jury with the instructions at the end of the trial.

2. His counsel was ineffective by failing to call a critical witness at trial.

3. The court erred by adjusting the base offense level upward two levels for possession of a firearm (handgun) that was found in a vehicle that petitioner was a passenger in just before his arrest.

4. The court erred in attributing a greater quantity of narcotics at the sentencing hearing than what was supported by the evidence.

I. Ineffective Assistance of Counsel Claims

In order to sustain an ineffective assistance of counsel claim, a petitioner must establish: (1) that the trial attorney's conduct fell below an objective standard of reasonableness measured by the prevailing professional norms, and (2) that there was a reasonable probability that, but for counsel's conduct, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Under the first prong, petitioner must present a sufficient showing to overcome the "strong presumption that `counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Pena, 920 F.2d 1509, at 1509 (10th Cir.1990) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). A reasonable probability, under the second prong, "is a probability sufficient to undermine confidence in the outcome." United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir.2000) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In deciding ineffective assistance of counsel claims, the court need not consider the two components in any specific order, nor does the court need to address both if there is an insufficient showing of one. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Walker v. Gibson, 228 F.3d 1217, 1224 (10th Cir. 2000).

Claim 1: Failure to review indictment before it was submitted to the jury

Petitioner asserts that his counsel was ineffective in failing to review the indictment to ensure that the indictment was in redacted form before it was submitted to the jury. The indictment contained information about petitioner's possession of a large amount of cash and a loaded Firestar .45 caliber semi-automatic handgun at the time of his arrest. These matters were not submitted into evidence at trial.

The court allowed the jury to have a copy of the indictment for review in deliberations. The court repeatedly instructed the jury that the indictment was not evidence. Petitioner states that after the jury returned their verdict and the jurors were excused, one juror informed petitioner's attorney that she initially did not want to convict petitioner, but when she read the indictment she changed her mind. Petitioner claims that one other juror expressed the same concern.

This Court need not look at whether or not the attorney's conduct fell within professional norms. Petitioner cannot show that but for the attorney's conduct, the outcome would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The Tenth Circuit, in petitioner's appeal, specifically stated that in their view, petitioner's confession and the corroboration by Mr. Rogers provided "overwhelming evidence of his guilt." Klein, 93 F.3d at 705. The Tenth Circuit further stated that the most common way to show the "harmlessness of an extraneous contact is to show the existence of overwhelming evidence of [the] defendant's guilt." Id. (citing United States v. Davis, 60 F.3d 1479, 1485 (10th Cir.1995)). The Tenth Circuit found the evidence and testimony at trial, including petitioner's confession, which the jurors heard from a Drug Enforcement Agent who interviewed petitioner, provided overwhelming evidence of guilt. Klein, 93 F.3d at 705.

We agree with the Tenth Circuit that there was overwhelming evidence of petitioner's guilt. Furthermore, it would be improper to call the juror to testify with respect to the verdict. Fed.R.Evid. 606(b). Thus, the only evidence is the attorney's statement of what the juror said. This is not enough to show that the outcome would have been different but for the attorney's failure to review the indictment and seek to have it redacted. Therefore his attorney's conduct does not rise to the level of ineffective assistance of counsel.

Claim 2: Failure to call witness

Petitioner next contends that his counsel was ineffective by failing to call a critical witness. Petitioner asserts that Kelly Shoemaker, the purported source of the narcotics for the co-defendants, should have been called as a witness. He asserts that Kelly Shoemaker's testimony is important in linking petitioner to the earlier shipments from Kevin Coin to Larry Straker. This claim is connected with petitioner's fourth claim that the court erred in attributing to petitioner a greater amount of drugs then supported by the evidence and testimony. This Court will therefore address the issue more fully in petitioner's fourth claim.

II. Sentencing Error Claims

Petitioner's third and fourth claims for relief are based on alleged sentencing errors by the sentencing court. The government contends that petitioner did not raise these issues on appeal and is thus barred from raising them in his section 2255 petition. Generally, a petitioner cannot raise claims in a section 2255 proceeding that were not raised in the petitioner's appeal. United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993). There are two exceptions to this rule: (1) when a petitioner can demonstrate cause for not raising the claim on appeal and that petitioner was prejudiced by the failure to bring the claim, or (2) when a petitioner shows that a fundamental miscarriage of justice would occur if petitioner is not able to bring the claim. Id. (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)); United States v. Allen, 16 F.3d 377 (10th Cir.1994). A petitioner can clear the cause and prejudice standard by raising ineffective assistance of counsel. United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992).

Petitioner's failure to raise these Issues on appeal requires us to look at the cause and prejudice standard of Frady. In petitioner's traverse, petitioner converts the last two claims into ineffective assistance of counsel claims in order to meet the cause and prejudice standard needed to overcome a failure to raise these issues on direct appeal. See United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).

In order to establish ineffective assistance of counsel, petitioner again must meet the Strickland standard. That standard, as set forth above, requires petitioner to show that the attorney's performance was deficient and that the outcome would have been different, but for attorney's ineffective assistance. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "Under both the cause and prejudice and ineffective assistance of counsel tests, therefore, [petitioner] must show he would have prevailed on the merits of his claims." United States v. Hobbs, 19 F.3d 1444, 1994 WL 101893, *1 (10th Cir.1994) (citing United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992)). Accordingly, this Court will look at the merits of petitioner's claims.

Claim 1. Weapon Enhancement

Petitioner argues that this court erred in applying a sentencing adjustment based on the existence of a handgun found in the car that he was a passenger in just before his arrest. Section 2D1.1(b)(1) of the United States Sentencing Guidelines states: "if a dangerous weapon (including a firearm) was...