707 F.3d 184
2d Cir.2013Background
- In August 2006, McCoy was convicted by a jury on multiple drug- and gun-related offenses in two indictments.
- Before trial, the government filed a second offender notice under 21 U.S.C. § 851 relying on McCoy's 1996 Connecticut narcotics conviction (Alford plea) as a predicate.
- McCoy's trial counsel did not object to the § 851 notice, which increased the potential sentence exposure.
- On direct appeal, McCoy’s appellate counsel did not challenge the second offender enhancement or other sentencing aspects.
- In March 2011, McCoy filed a § 2255 petition asserting an illegal sentence based on the § 851 enhancement and ineffective assistance of counsel for failing to object.
- The district court denied the § 2255 petition, held no cause/prejudice to excuse the failure to object, and concluded trial counsel’s performance was not deficient; the court issued a COA on the IAC claim, which this court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was trial counsel ineffective for not objecting to the § 851 second offender notice? | McCoy | United States | No; counsel's performance not deficient under Strickland. |
| Did the second offender enhancement rest on a valid predicate felony drug offense? | McCoy | United States | No; the predicate relied on an Alford plea, but the state and federal law complex post-trial developments did not render the objection viable at the time. |
| Did McCoy show prejudice from the allegedly deficient performance? | McCoy | United States | No; even assuming deficiency, no reasonable probability of different outcome. |
Key Cases Cited
- McCoy v. United States, 2011 WL 3439529 (D. Conn. 2011) (district court decision discussed for cause/prejudice and standard analysis)
- Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001) (attorney not required to forecast future law; assessment at time of conduct)
- Harrington v. Richter, 131 S. Ct. 770 (2011) (performance examined under prevailing professional norms; substantial deference)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance)
- North Carolina v. Alford, 400 U.S. 25 (1970) (Alford plea framework; permissible for predicate considerations)
- United States v. Savage, 542 F.3d 959 (2d Cir. 2008) (domestic rulings on predicate offenses post-dating trial)
- United States v. Madera, 521 F. Supp. 2d 149 (D. Conn. 2007) (district court held CT § 21a-277 conduct not categorically a ‘serious drug offense’)
- United States v. Lopez, 536 F. Supp. 2d 218 (D. Conn. 2008) (post-Madera decision regarding drug offense categorization)
- United States v. Cohens, 2008 WL 3824758 (D. Conn. 2008) (district court decision on related predicate offenses)