282 F.3d 664 | 9th Cir. | 2002
Lead Opinion
Juan Sanchez-Cervantes appeals from the district court’s denial of his initial petition for relief pursuant to 28 U.S.C. § 2255. Sanchez-Cervantes argues that his conviction and sentence for federal drug violations should be vacated because of the rule announced in Apprendi v. New Jersey
I.
On March 18, 1993, Juan Sanchez-Cervantes was indicted on one count of possession with intent to distribute methamphetamine, one count of possession with intent to distribute cocaine, one count of conspiracy to distribute controlled sub
The jury convicted Sanchez-Cervantes on all counts, but made no findings as to drug quantities. After determining, based on the presentence drug report, that Sanchez-Cervantes was responsible for 280.6 grams of methamphetamine, 1,387.3 grams of cocaine, and 176 grams of marijuana, the judge sentenced Sanchez Cervantes to 295 months’ imprisonment and a five-year term of supervised release.
Sanchez-Cervantes appealed his conviction and sentence, which we affirmed on April 26, 1996. He then filed a pro se § 2255 petition, which the district court denied. He appealed the denial of his § 2255 petition. We granted his motion to sever his appeal from the appeals of his co-defendants and remanded to the district court to consider his ineffective assistance of counsel claim, which was based on trial counsel’s advice encouraging Sanchez-Cervantes to testify at trial. The district court granted Sanchez-Cervantes’ application for a court-appointed attorney, and his new attorney moved to sever his petition from those of his co-defendants. The district court severed Sanchez-Cervantes’ petition from those of his co-defendants and agreed to hear the ineffective assistance of counsel claim.
While the case was pending in the district court, the Supreme Court decided Apprendi. Sanchez-Cervantes sought to amend his petition, arguing that his sentence violated the ruling in Apprendi because the court did not submit the drug quantity determination to the jury to be found beyond a reasonable doubt. The district court allowed Sanchez-Cervantes to amend his petition in light of Apprendi.
On November 21, 2000, the district court held an evidentiary hearing on the ineffective assistance of counsel claim. After the hearing, the district court denied Sanchez-Cervantes’ petition as to both the ineffective assistance of counsel claim and the Apprendi claim. The court ruled that Sanchez-Cervantes made a knowing and voluntary decision to testify and that his counsel’s advice was based on a strategic decision that was not objectively unreasonable. The court also held that Apprendi cannot be applied retroactively to cases on initial collateral review. Sanchez-Cervantes filed this appeal. We review a district court’s decision to deny a § 2255 petition de novo.
II.
At the time of Sanchez-Cervantes’ trial and sentencing, all of the circuits in the country allowed a judge to determine the drug quantity for which the defendant was responsible by a preponderance of the evidence. After Sanchez-Cervantes filed his § 2255 petition, the Supreme Court ruled in Apprendi that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
In Teague v. Lane,
Before we apply the Teague analysis, we must address Sanchez-Cervantes’ argument that Teague does not apply in this case because Teague involved a state prisoner’s § 2254 petition, not a federal prisoner’s § 2255 petition. This argument fails. Although we have not specifically held that Teague applies to § 2255 petitions, we have applied it in that context.
In Jones v. Smith,
[4] Pursuant to Teague’s first exception, the first category of rules that will be applied retroactively include those placing “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority.”
The second exception in Teague allows courts to apply certain “watershed rules of criminal procedure” retroactively.
We do not believe that requiring the jury to make drug quantity determinations beyond a reasonable doubt will greatly affect the accuracy of convictions. Nor is this rule a bedrock procedural element. Our view is consistent with the three circuits that have already ruled on this specific issue.
Our decisions that subjected Apprendi claims to harmless error analysis or plain error review lend additional support to our determination that Apprendi is not a bedrock procedural rule.
Sanchez-Cervantes argues that Appren-di must be retroactive because the cases upon which it relies had previously been given retroactive effect by the Supreme Court. The reasoning in Apprendi stems primarily from In re Winship,
Sanchez-Cervantes’ argument is flawed because not every extension of Winship is necessarily a watershed rule of criminal procedure. The rules announced in Win-ship and Mullaney were given retroactive effect because they were to “overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdictsf.]”
Finally, our holding in Jones v. Smith
III.
We now turn to Sanchez-Cervantes’ claim of ineffective assistance of counsel. In assessing claims of ineffective assistance of counsel, we must follow the guidelines set forth in Strickland v. Washington.
Sanchez-Cervantes claims that his counsel’s performance was deficient because he advised Sanchez-Cervantes to testify at trial and admit to illegally reentering the United States and conducting small-time drug deals. By putting Sanchez-Cervantes on the stand, his counsel also exposed Sanchez-Cervantes to cross-examination, which risked revealing past drug convictions and destroying his credibility. Sanchez-Cervantes argues that advising him to testify was a “desperation move” that relieved the Government of its burden of proof.
Sanchez-Cervantes cannot prevail on this claim because his counsel’s performance was not deficient and did not result in any prejudice to Sanchez-Cervantes. As the district court noted, Sanchez-Cervantes voluntarily accepted his counsel’s advice to testify. Sanchez-Cervantes admitted at the evidentiary hearing that he freely agreed to testify after his counsel explained the risks to him. Testimony from the evidentiary hearing also established that the advice was part of counsel’s strategy to try to avoid a conviction for conspiracy. The Government had substantial evidence linking Sanchez-Cervantes to many drug deals as well as concrete evidence that Sanchez-Cervantes had illegally reentered the country. Counsel stated that he believed he could not win an acquittal on all the charges but that he could produce reasonable doubt on the conspiracy charge if Sanchez-Cervantes testified. He acknowledged that putting his client on the stand would open the door for admitting the prior convictions. He explained that the convictions would come in as evidence anyway, so putting Sanchez-Cervantes on the stand would not disadvantage him.
Advising Sanchez-Cervantes to testify was not objectively unreasonable in these circumstances. His counsel had a valid reason for doing so and proceeded to examine Sanchez-Cervantes with that objective in mind. Sanchez-Cervantes’ testimony was consistent with his being a small-time, solo drug dealer who was not connected to the other defendants. It is not the role of the courts to second-guess an attorney’s tactical decisions. Accordingly, we find that Sanchez-Cervantes’ attorney’s conduct was not deficient.
Although we need not determine prejudice after finding that counsel’s performance was not deficient, we conclude that Sanchez-Cervantes’ ineffectiveness claim would also fail the second prong of the Strickland test. Regardless of whether Sanchez-Cervantes testified, the Government produced ample evidence to convict him. The Government established that a large amount of cocaine was seized from a barn behind Sanchez Cervantes’ house and several witnesses testified that they had purchased illegal drugs from Sanchez-Cervantes. While the fact that all the other defendants were convicted without testifying does not prove that such evidence would have convicted Sanchez-Cervantes, it makes a strong case that his testimony did not affect the outcome of the proceeding. Sanchez-Cervantes cannot establish that, but for the advice to testify, there is a reasonable probability that the result of the trial would have been different. Thus, there was no ineffective assistance of counsel.
We hold that Apprendi does not apply retroactively to cases on initial collateral review, and therefore, Sanehez-Cervantes’ Apprendi claim is barred. His ineffective assistance of counsel claim fails because his counsel’s performance was not deficient and did not prejudice Sanehez-Cervantes. Therefore, we affirm the district court’s denial of Sanehez-Cervantes’ § 2255 petition.
AFFIRMED.
. 530 U.S. 466, 120 S.Cl. 2348, 147 L.Ed.2d 435 (2000).
. United States v. Chacon-Palomares, 208 F.3d 1157, 1158 (9th Cir.2000).
. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.
. The maximum sentence for cases like this one, in which the jury does not find a specific quantity of drugs, is 240 months. 21 U.S.C. § 841(b)(1)(C). Nevertheless, Sanchez-Cervantes was sentenced to 295 months on the basis of the drug quantity found by the judge during sentencing.
. 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
. Id. at 310-11, 109 S.Ct. 1060.
. Id. at 307, 109 S.Ct. 1060 (internal quotation marks and citation omitted).
. See United States v. Judge, 944 F.2d 523, 525 (9th Cir.1991) (denying claim in § 2255 petition because new Supreme Court rule did not fit within Teague’s second exception and therefore was not retroactive on collateral review); United States v. Garcia, 210 F.3d 1058, 1059-60 (9th Cir.2000) (applying general rule of Teague to determine timeliness of § 2255 petition).
. Gilberti v. United States, 917 F.2d 92, 94-95 (2d Cir.1990); United States v. Martinez, 139 F.3d 412, 416 (4th Cir.1998); Van Daalwyk v. United States, 21 F.3d 179, 181-83 (7th Cir.1994); Daniels v. United States, 254 F.3d 1180, 1193-94 (10th Cir.2001). All of these cases cite concerns of finality and consistency, as well as the fact that Teague was based on Justice Harlan's approach, which was developed in the context of § 2255 petitions.
. See Teague, 489 U.S. at 309, 109 S.Ct. 1060 ("Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.”).
. See Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgment in part and dissenting in part); Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting).
. 231 F.3d 1227 (9th Cir.2000).
. Id. at 1236-38. Jones was a § 2254 petition so it did not decide the issue addressed in the previous paragraph.
. Id. at 1232.
. Id. at 1236.
. Id. at 1238 (holding that, regarding Teague’s second exception, "the omission of particular key words from the written information neither increases the risk that an innocent person will be convicted nor hinders the fundamental fairness of the trial”).
. Teague, 489 U.S. at 307, 109 S.Ct. 1060.
. See United States v. Sanders, 247 F.3d 139, 148 (4th Cir.2001), cert. denied, — U.S.—, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001) ("The first exception clearly does not apply here because Apprendi did not place drug conspiracies beyond the scope of the state’s authority to proscribe.”); United States v. Moss, 252 F.3d 993, 997 n. 3 (8th Cir.2001), cert. denied, — U.S. —, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002) (noting that first exception is not relevant in this type of case); McCoy v. United States, 266 F.3d 1245, 1256-57 (11th Cir.2001) (agreeing that the first exception is inapplicable to the rule announced in Apprendi).
. Jones, 231 F.3d at 1237 (citing Teague, 489 U.S. at 312, 109 S.Ct. 1060).
. See id.
. Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (internal citation, quotation marks, and emphasis omitted).
. 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. See O’Dell v. Netherland, 521 U.S. 151, 167, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). In Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001), the Supreme Court noted the extreme narrowness of Teague's second exception. It stated that "it is unlikely that any of these watershed rules has yet to emerge.” Id. at 2484 n. 7 (internal quotation marks and citation omitted). It also stated that not all new rules relating to due process or the fundamental requirements of due process alter our understanding of bedrock procedural elements. Id. In fact, the Supreme Court has not found any rule to qualify under the second exception since Teague came out. See Sanders, 247 F.3d at 148.
. Sanders, 247 F.3d at 149-51; Moss, 252 F.3d at 999-1000; McCoy, 266 F.3d at 1258.
. United States v. Buckland, 277 F.3d 1173, 1184 (9th Cir. Jan. 18, 2002) (en banc) (holding that 21 U.S.C. § 841(a) was constitutional and stating that, under Apprendi, a jury conviction without a drug quantity finding exposes the defendant to a maximum term of twenty years for each count).
. See O’Dell, 521 U.S. at 167, 117 S.Ct. 1969 ("Unlike the sweeping rule of Gideon ... the narrow right of rebuttal that Simmons [v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)7 affords to defendants in a limited class of capital cases has hardly altered our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” (internal quotation marks, citation and emphasis omitted)).
In addition, Buckland established that in cases involving multiple counts of drug violations, such as this one, the judge is required to impose consecutive sentences under U.S. Sentencing Guideline § 5G1.2(d). 277 F.3d at 1184-85. Therefore, many sentences that violate the Apprendi rule would be upheld because of mandatory stacking under the Sentencing Guidelines, further limiting the applicability of Apprendi.
. See Buckland, 277 F.3d at 1185 ("Apprendi does not alter the authority of the judge to sentence within the statutory range provided by Congress.”).
. Id. at 1183-87 (upholding sentence under plain error review); United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir.2000), cert. denied, 532 U.S. 984, 121 S.Ct. 1629, 149 L.Ed.2d 490 (2001) (finding that Apprendi error was harmless); United States v. Antonakeas, 255 F.3d 714, 727 (9th Cir.2001) (holding that, under plain error review, defendant's substantial rights were not affected); United States v. Saya, 247 F.3d 929, 942 (9th Cir.2001), cert. denied, - U.S. -, 122 S.Ct. 493, 151 L.Ed.2d 404 (2001) (subjecting Ap-prendi claim to plain error review).
. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
. Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
. Our conclusion that Apprendi errors do not create a fundamentally unfair trial is supported by the Supreme Court's decision in Neder. In that case, the Court held that, unlike a jury instruction that was defective as to all the elements of a crime, an instruction that omitted one element of the offense did not create a structural error. Neder, 527 U.S. at 15, 119 S.Ct. 1827.
. Teague, 489 U.S. at 312, 109 S.Ct. 1060.
. 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001).
. Id. at 2484 n. 7.
. 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
. Id. at 364, 90 S.Ct. 1068.
. Ivan V. v. City of New York, 407 U.S. 203, 205, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972).
. 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
. Id. at 704, 95 S.Ct. 1881.
. Hankerson v. North Carolina, 432 U.S. 233, 242-44, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977).
. Id. at 243, 97 S.Ct. 2339.
. Tyler v. Cain lends support to the conclusion that not all extensions of Winship are automatically retroactive. The Supreme Court held in Tyler that it had not yet made Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), which was a straightforward extension of Winship, retroactive to cases on collateral review. Tyler, 121 S.Ct. at 2484.
. 231 F.3d 1227 (9th Cir.2000).
. Id. at 1238.
. We express no opinion as to whether the Supreme Court’s holding in Arizona v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001), cert. granted, - U.S. -, 122 S.Ct. 865, 151 L.Ed.2d 738 (2002) (considering whether allowing a judge to impose a death sentence violates Apprendi), would apply retroactively if the petitioner in that case prevails.
. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
.Id. at 687, 104 S.Ct. 2052.
. Id. at 689, 104 S.Ct. 2052.
. Id. at 694, 104 S.Ct. 2052.
Concurrence Opinion
concurring.
I concur in the opinion because I believe it is compelled by our en banc decision in United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc). However, were it not for the majority opinion in Buckland, I would see the case differently. Sanehez-Cervantes was indicted only for violating 21 U.S.C. § 841(a)(1) with no quantity of drugs specified. Thus, the sentence under § 841(b)(1)(C) was applicable. The quantity of drugs found by the judge exceeded the amount the jury could have found under the indictment and instructions to the jury for a violation of § 841(a)(1). In order for the jury to find these quantities the indictment would have to charge violations of § 841(b)(1)(A) or (B) with an appropriate instruction to the jury. As I contended in my concurring and dissenting opinion in Buckland,
. See United States v. Buckland, No. 99-30285, 2002 WL 63718, at *11 (9th Cir. Jan. 18, 2002) (en banc) (Hug, J., concurring in part and dissenting in part).
