U.S. v. Williams, Civ. No. HNM-96-18.
| Decision Date | 31 January 1997 |
| Docket Number | Civ. No. HNM-96-18.,Criminal No. HAR-88-0227. |
| Citation | 954 F.Supp. 1093 |
| Parties | UNITED STATES of America v. Zachary WILLIAMS. |
| Court | U.S. District Court — District of Maryland |
Lynne A. Battaglia, United States Attorney for the District of Maryland, Andrea L. Smith, Assistant United States Attorney, Baltimore, MD, for U.S.
Fred Warren Bennett, Baltimore, MD, for defendant.
On March 9, 1990, a jury convicted defendant, Zachary Williams, of one count of conspiring to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846 and four counts of using a telephone in the commission of a felony in violation of 21 U.S.C. § 843(b). On July 13, 1990, the court sentenced Williams to 168 months imprisonment. The Fourth Circuit affirmed the conviction, vacated his sentence, and remanded with directions to sentence Williams as a career offender. United States v. Williams, No. 90-5827, slip op., 936 F.2d 568 (4th Cir. July 8, 1991) (unpublished). On July 10, 1992, the court sentenced Williams to 188 months imprisonment. Both the government and Williams noted appeals. These appeals were subsequently abandoned and dismissed by agreement of the parties.
Presently pending before the court is Williams's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (1994), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. Williams contends that he is entitled to a new trial because his appellate counsel was ineffective for failure to raise on direct appeal a "winning" claim of discriminatory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He also contends that the court erred in determining his sentence. For the reasons set forth below, the motion will be denied.
Williams first contends that a new trial is required because his appellate counsel was ineffective for failure to raise on direct appeal a "winning" claim of discriminatory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court held that the Equal Protection Clause guarantees that the government will not exclude members of the defendant's race from the jury on account of race and that such conduct also discriminates against the excluded juror. To succeed on this claim, Williams must show that if appellate counsel had raised the Batson claim on direct appeal, there would have been a reasonable probability that it would have succeeded. See Bond v. United States, 77 F.3d 1009, 1014 (7th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 270, 136 L.Ed.2d 194 (1996). Williams has failed to make this showing.
The government exercised eight peremptory challenges in the process of selecting the jury. Seven were employed to strike black jurors. The jury as finally composed included five black jurors and one black alternate juror. The court required the government to present the reasons for its peremptory strikes of black jurors. The government explained that it struck Minnie Nickens because she gave the prosecutor an undesirable look during a bench conference and because the prosecutor did not care for her hat or dress. The government struck Francis Walker because he appeared to have a foreign accent and it struck Elmo Smith because he consistently avoided eye contact with the prosecutor. The government struck Joseph Brummell because he had two cousins who died of drug-related incidents and because he had a son who was serving time for rape. It struck Bobby Vereen because he had an assault conviction and it struck Helen Martin because she wanted to leave town in a few days, because she had a grandson convicted of armed robbery, and because she had a nephew in jail for smoking marijuana. The government struck Walter Opher because he had two sons with substance abuse problems.
These reasons "`were not intrinsically suspect, [and] were adequately supported by observable fact.'" United States v. Johnson, 54 F.3d 1150, 1163 (4th Cir.), (citation omitted), cert. denied, ___ U.S. ___, 116 S.Ct. 266, 133 L.Ed.2d 188 (1995). The court correctly determined the government's reasons to be race-neutral, non-pretextual reasons, and therefore Williams's claim of ineffective assistance of appellate counsel has no merit.
Williams next contends that the court erred in determining the quantity of drugs to be used in arriving at his base offense level under the Sentencing Guidelines. He claims that the court misapplied section 1B1.3, the relevant conduct guideline, by holding him responsible for an amount in excess of that which was reasonably foreseeable to him within the scope of his unlawful agreement. This specific issue was fully considered and decided adversely to Williams on direct appeal. See Williams, No. 90-5827, slip op. at 4. If an issue has been decided adversely to a defendant on direct appeal, it cannot be relitigated on collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.), cert. denied, 429 U.S. 863, 97 S.Ct. 169, 50 L.Ed.2d 142 (1976); see also United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994) (); United States v. Redd, 759 F.2d 699, 701 (9th Cir.1985) (same); United States v. Gaus, 751 F.2d 1506, 1507 (8th Cir.1985) (same). Relitigation is permitted, however, if there has been an intervening change in the law. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974).
Williams asserts that the case of United States v. Irvin, 2 F.3d 72 (4th Cir.1993), cert. denied, 510 U.S. 1125, 114 S.Ct. 1086, 127 L.Ed.2d 401 (1994) represents an intervening change in the law and that this "new law" should inure to his benefit. The court does not agree, because Irvin is not applicable to Williams's case and does not change the Fourth Circuit's interpretation of the relevant conduct guideline. Irvin held that a district court must apply the principles set forth in the relevant conduct guideline to determine the quantity of drugs reasonably foreseeable to a defendant before applying the mandatory minimum sentence provisions of 21 U.S.C. § 841. Williams's case does not involve the mandatory minimum sentence provisions, because the conspiracy he was convicted of ended before November 18, 1988, when, pursuant to congressional action, the penalties under § 841 were made applicable to § 846 conspiracy cases. See 21 U.S.C. § 846, amended by Asset Forfeiture Amendments Act, Pub.L.No. 100-690, Title VI, § 6470(a), 102 Stat. 4377 (1988). Rather, Williams's case is concerned with the application of the relevant conduct guideline. Furthermore, because the holding in Irvin was limited to 21 U.S.C. § 841's wholesale incorporation of the Guideline's concept of reasonable foreseeability, Irvin adds nothing to the Guideline's law of the Fourth Circuit that obtained at the time of Williams's sentencing. Cf. United States v. Tayman, 885 F.Supp. 832, 848 n. 55 (E.D.Va.1995) (). Thus, Irvin does not represent an intervening change in the law of the Fourth Circuit, so as to permit relitigation of this claim.2
Williams also urges that the law as to the relevant conduct of a coconspirator has been "clarified" by certain amendments to the Sentencing Guidelines that took effect after his sentencing and direct appeal, and that this "clarification" of the law entitles him to relitigation of his claim. This claim has no merit. First, there is no authority for the proposition that a "clarification" of the law triggers an exception to the rule of Boeckenhaupt against relitigation of claims fully considered and disposed of on direct appeal. Second, as more fully discussed below, the court cannot agree that the amendments to the Guidelines cited by Williams, Amendment 439 (effective November 1, 1992) and Amendment 503 (effective November 1, 1994), represent an intervening change in the law of the Fourth Circuit, so as to permit relitigation of the claim under Davis.
Amendment 439 did not alter the language of the relevant conduct guideline itself but rather amended the commentary by deleting Application Note One and inserting Application Note Two. Application Note Two now states, in part, that a defendant is accountable for the conduct of others that was both: "(i) in furtherance of the jointly undertaken criminal activity; and (ii) reasonably foreseeable in connection with that criminal activity." U.S. Sentencing Guidelines Manual § 1B1.3, comment. (n.2) (1995).
It was the view of the Fourth Circuit at the time of Williams's sentencing, and it remains the view today, that the relevant conduct guideline requires that the conduct be reasonably foreseeable within the scope of the jointly undertaken criminal activity. See United States v. Gilliam, 987 F.2d 1009, 1012-13 (4th Cir.1993) . In Gilliam, the court interpreted the commentary in effect at Williams's sentencing consistent with the subsequent amendments. The court stated: "[I]n order to attribute to a defendant for sentencing purposes the acts of others in jointly-undertaken criminal activity, those acts must have been within the scope of the defendant's agreement and must have been reasonably foreseeable to the defendant." Id. (emphasis added). The court further explained that "a court should focus on the language of the commentary that describes conduct that is `reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake.'" Id. at 1013 (citation omitted).
The Sentencing Commission expressly stated that the purpose of the amendment...
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