Robertson v. U.S.

• Decision Date: 30 April 2001
• Docket Number: No. C.A. 01-008L.,C.A. 01-008L.
• Citation: 144 F.Supp.2d 58
• Parties: Jerry Lee ROBERTSON, v. UNITED STATES of America.
• Court: Rhode Island Supreme Court

Page 58

144 F.Supp.2d 58

Jerry Lee ROBERTSON, v. UNITED STATES of America.

No. C.A. 01-008L.

United States District Court, D. Rhode Island.

April 30, 2001.

MEMORANDUM AND ORDER

Lagueux, District Judge.

The matter before the Court is a motion filed by Petitioner, Jerry Lee Robertson, to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. In the motion filed on or about January 9, 2001, Petitioner makes four claims.

1. That his counsel was ineffective because counsel failed to advise him that he had a right to refrain from testifying.

2. That his counsel was ineffective because counsel elicited information about Petitioner's two prior felony convictions during his direct testimony.

3. That the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) requires that sentencing enhancements for obstruction of justice and firearm possession be presented

to a jury and guilt determined beyond a reasonable doubt.

4. That the decision in Apprendi requires the amount of drugs to be stated in the indictment and proven beyond a reasonable doubt in order for the Court to have jurisdiction over the matter.

BACKGROUND FACTS

On October 8, 1997, a grand jury in the District of Rhode Island indicted Petitioner on two counts. The first was for possessing heroin with intent to distribute within 1000 feet of a school, 21 U.S.C. §§ 841(a)(1) and 860(a); and, the second, for possessing a firearm after a previous felony conviction, 18 U.S.C. § 922(g)(1). Petitioner was found guilty of both counts on June 26, 1998 after a jury trial. On September 23, 1998, he was sentenced to 137 months of imprisonment, 6 years of supervised release, no fine, and a special assessment of $100 on Count 1. On Count 2, this Court imposed a concurrent sentence of 120 months of imprisonment (the statutory maximum), 3 years of supervised release to be served concurrently, no fine, and a special assessment of $100.

Petitioner timely appealed. His primary claim was that the Court erred by failing to give him prior notice of its intent to impose a two-level upward adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1; and for failing to state on the record findings in support of its decision to impose that two-level adjustment for obstruction of justice. In a supplemental brief, Petitioner contested the sufficiency of the affidavit in support of the search warrant, contended that the evidence was insufficient to convict, claimed that the Court's instructions to the jury were flawed, and argued that the guidelines' calculations were inaccurate and the Court was not justified in departing upward on the Criminal History Category. He did not contend that the indictment was defective in any way. In an unpublished opinion dated June 24, 1999, the First Circuit affirmed both the conviction and the sentence imposed. Petitioner then filed a petition for a writ of certiorari with the U.S. Supreme Court on or about November 29, 1999. That was denied on January 10, 2000. Robertson v. United States, 528 U.S. 1095, 120 S.Ct. 835, 145 L.Ed.2d 702 (2000).

FACTS PROVED AT TRIAL

On September 10, 1997, at approximately 4:30 p.m. Detectives Larry Lepore, Peter Rocchio, Michael Long, Sergeant Nicholas Cardarelli and other officers of the Providence Police Department went to the first floor apartment at 221 Mount Pleasant Avenue for the purpose of executing a search warrant. The officers were able to enter through an open front door. Two people were found in the living room and they were watched as officers checked the rest of the apartment. Detective Lepore went into the master bedroom and found Petitioner and Bernice Torres on the bed. They were watching television or playing video games on the TV. (6/22/98 Tr. at 35, 40, 41, 69-71, 107-108).

Both Petitioner and Torres were secured in the living room along with the other two. The officers then began a search of the apartment. Detective Lepore searched the bedroom. The headboard for the bed had shelves and mirrored doors. On a shelf in the headboard, he found a plastic bag containing slightly less than 25 grams of heroin. On another shelf, on the same side of the headboard, he found a .44 caliber Sturm Ruger, model Blackhawk revolver, serial number 46-34002. On top of the headboard, Detective Lepore found nine glassine bags of heroin. Elsewhere in the bedroom, Detective Lepore found a NYNEX bill and a Narragansett Electric bill with Petitioner's name on them listing the Mount Pleasant Avenue address. He also seized a mailer for a NYNEX calling card, a rubber stamp and a Motorola pager. The rubber stamp had a skull or death's head wearing a top hat with the words "THE BOSS" underneath. (6/22/98 Tr. at 72-82, 105-110, 114-118, 120-121).

Detective Rocchio searched the living room. In a closet, he found $2,500 hidden in the bag area of a vacuum cleaner. In the same closet, he found a box which held four cellular phones. (6/22/98 Tr. at 31-35, 39, 45, 50-56).

The landlord, Matthew Cote, testified that he owned the house at 221 Mount Pleasant Avenue. He identified Petitioner as the individual who rented the first floor apartment. According to Cote, Petitioner was the only tenant of that apartment. Petitioner had no written lease and rented on a month to month basis. Cote testified that Petitioner was the only one who paid the rent and that he paid in cash. (6/22/98 Tr. at 26-28).

Isabella Lee testified that she was the principal of George West School. She stated that it was located between Mount Pleasant Avenue, Roanoke Street and Beaufort Street. Mrs. Lee confirmed that George West was a school within the Providence public school system. She also testified that the iron railings surrounding the school were on school property. (6/22/98 Tr. at 24-25).

Lieutenant Kenneth Cohen of the Providence Police Department testified that he measured the distance from 221 Mount Pleasant Avenue to the iron railing around George West School. That distance was reported as approximately 338 feet. (6/23/98 Tr. at 24-27).

Officer Kenneth Vinacco testified that he was an armorer with the Providence Police Department. His duties included testing firearms and determining their origin. Officer Vinacco testified that the .45 caliber Sturm Ruger Blackhawk revolver functioned as a firearm and was manufactured in Connecticut. (6/23/98 Tr. at 29-33).

Michael Liberto, a chemist with the Rhode Island Department of Health, testified about the analysis and weight of the seized drugs. He confirmed that the drugs were heroin. The large bag weighed 24.87 grams and eight of the nine glassine packets weighed 0.15 grams in aggregate. The contents of the ninth glassine packet had been consumed during testing. (6/23/98 Tr. at 41-61).

Detective Lepore testified as an expert witness. He stated that it was his opinion that the heroin possession in this case was more consistent with distribution than personal use. He based his opinion on the amount of heroin being in excess of that normally held by individuals for personal use, the presence of the nine glassine packets none of which were stamped with a logo or trademark, the presence of the $2,500 hidden in the vacuum cleaner, the pager and four cellular telephones, the presence of the firearm, and the rubber stamp with the skull, top hat and "THE BOSS" on it. (6/22/98 Tr. at 86-88, 92-95).

Detective Lepore further testified that he did not find any of the paraphernalia his training and experience have led him to expect to find when heroin is held for personal use. Detective Lepore testified that, in his experience, heroin users did not possess 25 grams at one time. Nor did they buy in bulk. He indicated that the street value of the heroin was approximately $3,000. Detective Lepore testified that the usual amount bought by a user would be an individual glassine packet such as those seized. Each packet is sold for approximately $10. (6/22/98 Tr. at 83, 87, 90-92; 6/23/98 Tr. at 22-23).

Petitioner stipulated that he had a prior felony conviction.

Bernice Torres testified for the defense. She said that she had met Petitioner sometime during the summer of 1997 and began to see him not long after that. Petitioner told her that he sold cars, but the only car she had seen him work on was her own. Torres testified that she began to spend one or two nights a week with Petitioner about the time he moved into the apartment at 221 Mount Pleasant Avenue. She claimed that she kept some personal items on the left side of the headboard. She did this because Petitioner respected her privacy and did not go into that side of the headboard. (6/23/98 Tr. at 72-76, 91-92, 102).

Sometime during the summer of 1996, according to her testimony, she was outside of her apartment when a man she did not know asked her if she wanted to buy a gun. Torres said that because she thought the gun might be an antique, she bought it for $40.00 with the hope that it would increase in value. (6/23/98 Tr. at 109-111).

Labor Day weekend 1997, she stayed at Petitioner's apartment while he was in Virginia. She took the gun there and put it in her side of the headboard on a shelf. She never told him the gun was there. As for the bag of heroin, Torres said that she had found it in clothing belonging to Petitioner. When she questioned him about it, he told her that he used it to enhance his sexual performance. She expressed her disapproval, took the bag from him and put it on her side of the headboard. Torres said she had never seen Petitioner use or sell drugs. (6/23/98 Tr. at 98-104, 111).

On September 10th, when Petitioner was arrested, Torres saw the police take the gun and did not tell them it was hers because she was frightened. The pager that was seized was hers as well; however, she did not tell the police that either. (6/23/98 Tr. at 95, 113-114; 6/24/98 Tr. at 7-10).

On cross examination Torres testified that she had never owned any other firearms. Despite purchasing this one...