US v. Carlos

• Decision Date: 29 September 1995
• Docket Number: Civ. No. 95-3063-SAC. Crim. No. 91-10016-01.
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Gerald L. CARLOS, Defendant/Movant.
• Court: U.S. District Court — District of Kansas

906 F. Supp. 582

UNITED STATES of America, Plaintiff/Respondent, v. Gerald L. CARLOS, Defendant/Movant.

Civ. No. 95-3063-SAC. Crim. No. 91-10016-01.

United States District Court, D. Kansas.

September 29, 1995.

COPYRIGHT MATERIAL OMITTED

Gerald L. Carlos, Rochester, MN, pro se.

D. Blair Watson, Office of United States Attorney, Wichita, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On March 13, 1991, the grand jury returned an eight count indictment charging Gerald L. Carlos with one count of conspiracy to distribute cocaine base (Count I), five counts of distribution of cocaine base (Counts II-VI), and two counts of carrying a firearm during and in relation to a drug trafficking crime (Counts VII-VIII). At trial, Carlos was represented by Kiehl Rathbun, appointed counsel.

Trial of this case commenced on June 16, 1992. At the close of the government's case, the court granted Carlos' motion for judgment of acquittal on Count VIII, but denied his motion as it pertained to Counts I-VII. The case proceeded on the remaining counts. The primary theory of the defense was one of entrapment: undercover law enforcement officers entrapped Carlos, a person highly susceptible to suggestion based upon his low I.Q., into committing multiple narcotic or narcotic related offenses. Carlos requested and received an entrapment instruction. On June 22, 1992, the jury returned a verdict finding Carlos guilty on all of the remaining counts. On September 10, 1992, the court imposed sentence. The court imposed a primary term of incarceration of one hundred and twenty-one months on Counts I-VI and sixty months on Count VII, to be served consecutively. Carlos appealed his conviction of carrying a firearm during and in relation to a drug trafficking crime (Count VII), but apparently raised no other issues. See United States v. Carlos, No. 92-3341, 1993 WL 265149, 1993 U.S.App. LEXIS 17627 (10th Cir. July 14, 1993). The Tenth Circuit affirmed Carlos' conviction on Count VII.

This case comes before the court upon a motion pursuant to 28 U.S.C. § 2255 to vacate or set aside his sentence. Carlos advances the following arguments in support of his contention that he was denied effective assistance of counsel and/or that he is otherwise entitled to relief:

(1) Because his property was forfeited to the government prior to the time jeopardy attached in the criminal case, all of his criminal convictions are barred by double jeopardy.¹

(2) Insufficiency of the evidence: The testimony of the government's expert was insufficient to prove that he (1) possessed crack cocaine and/or (2) that he possessed the amount of crack cocaine for which he was sentenced.

(3) Trial counsel's failure to raise the double jeopardy issue amounted to ineffective assistance of counsel.

(4) Trial counsel's failure to obtain independent chemical analysis of the evidence and to successfully challenge the government's expert's conclusions regarding his analysis of the cocaine constituted ineffective assistance of counsel.

(5) Trial court failed to instruct the jury on the definition of cocaine base, relieving the government of its burden of proving that he distributed cocaine base.

On September 13, 1995, the court gave notice to the government regarding Carlos' motion and set a time to file a response. The government responded, opposing Carlos' motion on several grounds. First, the government argues that Carlos' claims, to the extent that they were not raised on direct appeal, are barred. In response to Carlos' double jeopardy claim, the government argues, inter alia, that jeopardy never attached during the uncontested administrative forfeiture proceeding. In response to Carlos' claim that there was insufficient evidence to prove that he possessed cocaine base rather than cocaine, the government argues that Carlos' motion is devoid of legal or scientific authority. Moreover, the "United States submits that the tests and the expert's opinion regarding the type of narcotic involved were firmly grounded on scientific principles and established that the substance in question was cocaine base."

The court, having reviewed the defendant's motion, the government's response, the transcript of Carlos' trial, and the applicable law, denies his requests for relief. No evidentiary hearing is required as the issues presented by Carlos are purely questions of law. See United States v. Guder, No. 92-3150-C, XX-XXXXX-XX, 1992 WL 190698, at *1, 1992 U.S.Dist. LEXIS 12445, at *2 (D.Kan. July 2, 1992), aff'd, No. 12445, 1992 WL 401591, 1992 U.S.App. LEXIS 33571 (10th Cir.1992).

Applicable Law

Section 2255 Motions

Title 28, section 2255 provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

A motion for such relief may be made at any time.

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. An appeal may be taken to the court of appeals from the order entered on the motion as from the final judgment on application for a writ of habeas corpus....

"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994) (citation omitted). "Consequently, a defendant may not raise claims that were not presented on direct appeal unless he can show cause and prejudice resulting from the error." United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995) (citing Warner). See United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) ("A defendant who fails to present an issue on direct appeal is barred from raising the issue in a § 2255 motion, unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed."). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." Cook, 45 F.3d at 392 (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)).

Ineffective Assistance of Counsel

The Sixth Amendment of the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." "An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir.1991) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)).

In criminal prosecutions, "the right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); McGee v. Crist, 739 F.2d 505, 506 (10th Cir.1984). The Sixth Amendment guarantee of effective assistance of counsel "demands that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney." Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.) (en banc), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980).

United States v. Ruth, 768 F.Supp. 1428, 1430 (D.Kan.1991), aff'd, 963 F.2d 383 (10th Cir.1992).

To establish a claim for ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668 at 687 104 S.Ct. 2052, at 2064, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient if the representation "falls below an objective standard of reasonableness." Id. at 690 104 S.Ct. at 2066. Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694 104 S.Ct. at 2068.

Cook, 45 F.3d at 392. "Restated, the defendant must show his attorney's performance was both substandard and prejudicial to his defense, taking into account the strength of the government's case." United States v. Maxwell, 966 F.2d 545, 548 (10th Cir.), cert. denied, 506 U.S. 1039, 113 S.Ct. 826, 121 L.Ed.2d 697 (1992).

Trial strategies necessarily evolve without the benefit of hindsight. Accordingly, we afford a high level of deference to the reasonableness of counsel's performance in light of all the circumstances at the time of the alleged error. (citations omitted). The ultimate inquiry, of course, focuses "`on the fundamental fairness proceeding.'" United States v. Miller, 907 F.2d 994 (10th Cir.1990) at

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