The opinion of the court was delivered by: Shirley Wohl Kram, United States District Judge
Pro se petitioner Myles Coker moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence for conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Coker argues that the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), should be applied retroactively to his case. For the reasons set forth below, Coker's petition is denied.
On October 5, 1992, Coker was charged in Indictment S9 91 Cr. 685 (SWK) with participating in a narcotics distribution conspiracy. The Indictment charged a total of forty defendants in seventeen counts. Count One charged Coker with participation in a heroin conspiracy from 1986 to 1992, in violation of 21 U.S.C. § 846. Count Eight charged Coker with possession with intent to distribute in excess of one hundred grams of heroin, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(B) and (c), and 18 U.S.C. § 2. Count Nine charged Coker with using and carrying firearms in relation to narcotics trafficking crimes, in violation of 18 U.S.C. § 924(c).
On March 8, 1993, shortly before the jury was sworn in at the first trial of this case, Coker pled guilty to three counts pursuant to a plea agreement with the Government. In the agreement, Coker agreed to plead guilty to the narcotics conspiracy charged in Count One, a substantive heroin possession count (Count Eight), and a firearm charge (Count Nine). The plea agreement also contained a series of stipulations between Coker and the Government regarding the drug quantity for which Coker could be held responsible as a member of the conspiracy.
On April 16, 1993, the Court declared a mistrial in the trial of Coker's co-defendants, and, on July 30, 1993, granted Coker's motion to withdraw his guilty plea. See 829 F. Supp. 620, 634-36 (S.D.N.Y. 1993). The mistrial was based upon the revelation that several of the agents who had participated in the investigation of this case would themselves be indicted for corrupt activities.
Coker and his co-defendants then went to trial on these charges in November 1993. The evidence introduced at trial proved that Coker was a wholesale supplier of heroin to the "Blue Thunder" heroin organization run by Eric Millan and managed his own retail drug organization, distributing heroin on the street under the brand name "Exxon." When arrested by members of the New York Drug Enforcement Task Force on August 1, 1991, Coker was alone in his apartment in Manhattan and consented to a search of his residence. Therein, agents found more than 7000 glassines of heroin, an assortment of narcotics paraphernalia, narcotics records, two bags of cash containing more than $123,000, telephone records, business cards, photographs linking Coker to other members of the drug conspiracy charged in Count One of the Indictment, and a cellular telephone that had been tapped during the investigation. Dozens of witnesses testified at trial about Coker's drug dealing activities and his role in the larger drug conspiracy. On July 8, 1994, the jury convicted Coker on the narcotics conspiracy charge. The jury was unable to reach a verdict as to the narcotics possession and firearms charges against Coker. Coker was then sentenced on October 12, 1994 to a term of life imprisonment, five years of supervised release, and the mandatory special assessment of $50.00. The Court determined that Coker should be held accountable for 501 kilograms of heroin distributed by the conspiracy, based upon a finding that this amount was reasonably foreseeable to Coker in light of his role as a supplier to the organization. The Court held oral argument concerning the propriety of holding Coker responsible for the 501 kilograms of heroin distributed by the conspiracy, and held that Coker himself participated in the distribution of more than 300 kilograms of heroin and that he could reasonably foresee the full extent of the conspiracy's narcotics distribution. The base offense level of 42 was also adjusted upward by two points, in accordance with U.S.S.G. § 2D1.1(b)(1), for his possession of several firearms at the time of his arrest. The Court declined Coker's request for an adjournment so that he could take advantage of a pending reduction in the sentencing guidelines regarding drug quantity.
The Second Circuit rejected all of Coker's claims on appeal and affirmed his conviction and sentence in a published opinion and an accompanying summary order. See United States v. Rosario, et al., 111 F.3d 124 (2d Cir. 1997) (table); United States v. Rosario, et al., 111 F.3d 293 (2d Cir. 1997). Coker then filed a petition for a Writ of Certiorari with the United States Supreme Court, which was denied on November 10, 1997, Coker v. United States, 522 U.S. 969, 118 S.Ct. 418 (1997). On May 18, 2001, Coker filed the instant petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing (1) the federal narcotics statute, 21 U.S.C. § 841, is unconstitutional under Apprendi (2) his conviction for narcotics trafficking constitutes a violation of the rule announced in Apprepdi because of the failure to submit the issue of drug quantity to the jury and the failure to allege a specific drug quantity in the Indictment; and (3) his sentence was illegal because the Court declined to adjourn his sentencing date so that he could benefit from a proposed Guidelines amendment. Coker also filed a supplemental petition on November 19, 2001, in which he makes several additional claims in addition to reiterating his arguments based upon Apprendi, namely that the Indictment should have been dismissed because of misconduct by Government agents, and that both his trial and appellate counsel were ineffective for failing to properly litigate the issues raised in his petition.
A. APPRENDI DID NOT RENDER 21 U.S.C. § 841 UNCONSTITUTIONAL
Coker first argues that the Supreme Court's decision in Apprendi v. New Jersey rendered 21 U.S.C. § 841 unconstitutional as written and applied to his case and, therefore, his conviction, not merely his sentence, should be vacated. However, the Second Circuit has recently joined every other circuit to have ruled on this issue in upholding the facial constitutionality of 21 U.S.C. § 841. See United States v. Outen, 286 F.3d 622, 634-36 (2d Cir. 2002) (collecting cases). Therefore, Coker's argument that the narcotics statute is unconstitutional is without any merit and is denied as a basis for vacating his conviction.
B. APPRENDI IS NOT A SUBSTANTIVE CHANGE IN THE LAW
Coker's next argument is that the new rule announced in Apprendi is a substantive, rather than a procedural, change in the law. Therefore, he argues, it must be applied retroactively to his petition.
Citing Concepcion v. United States, 181 F. Supp.2d 206 (E.D.N.Y. 2002), Coker argues that the analysis used to determine retroactivity of a new rule, as outlined in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), is not applicable in this case as Apprendi announces a substantive change in criminal law, not merely a new rule of criminal procedure. While substantive rules are automatically applied retroactively, holdings dictating methods of criminal procedure are presumptively non-retroactive. See Parrado v. United States, 207 F. Supp.2d 230, 233 (S.D.N.Y. 2002); Rosario v. United States, No. 00 Civ. 9695, 2001 WL 1006641, at *2 (S.D.N.Y. Aug. 30, 2001). The overwhelming majority of courts in this Circuit and those across the country have all agreed that the new rule announced in Apprendi is to be considered a new rule of criminal procedure and analyzed under the holding of Teague to determine its retroactivity. See, e.g., McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001) ("[W]e hold that the new constitutional rule of criminal procedure announced in Apprendi does not apply retroactively on collateral review."); United States v. Sanders, 247 F.3d 139, 146 (4th Cir.), cert. denied, 534 U.S. 1032, 122 S.Ct. 573 (2001); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert. denied, 534 U.S. 1097, 122 S.Ct. 848 (2002);; In re Clemmons, 259 F.3d 489, 491 (6th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000) ("[W]e find that the non-retroactivity principle pronounced in ...