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SOSA v. U.S.

United States District Court, Southern District of New York

April 3, 2003


The opinion of the court was delivered by: Patrick Leisure, United States District Judge:


Petitioner Frank Sosa, acting pro se, moves to vacate and set aside his judgment and sentence, or to be able to file a new appeal, pursuant to 28 U.S.C. § 2255. For the following reasons, Sosa's petition is denied in full.


On November 12, 1996, a forty-three-count indictment was filed against Sosa, charging him with various offenses involving racketeering, narcotics, and firearms. On April 10, 1997, a jury found Sosa guilty of Count Thirty of the indictment, charging him with conspiring to distribute heroin and crack cocaine in violation of 21 U.S.C. § 846; and Count Forty-Three,*fn1 charging him with a firearm offense in violation of 18 U.S.C. § 924 (c). Sosa filed a motion for judgment of acquittal with this Court, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. He claimed that his narcotics conspiracy conviction should be set aside because "(1) insufficient credible evidence exists to sustain the charge; (2) no evidence exists that [he] conspired to distribute crack; and (3) [he] suffered spillover prejudice from voluminous evidence relating to violent crimes committed by his codefendants," United States v. Muyet, 993 F. Supp. 229, 231 (S.D.N.Y. 1998); and that there was insufficient evidence supporting his firearms conviction. Id. at 233. This Court rejected both these claims and denied Sosa's motion. See id. On September 25, 1998, this Court sentenced Sosa to 151 months' imprisonment for his involvement with the narcotics conspiracy, and 60 months' imprisonment for the firearm offense, to run consecutively.

Sosa filed an appeal to the Second Circuit Court of Appeals on the following claims: (1) that the jury charge suggested a preponderance of the evidence standard rather than the requisite reasonable doubt standard; (2) that admission of his former co-defendant's guilty plea resulted in unfair prejudice; and (3) that his sentence was impermissibly enhanced based on the conclusion that he served a managerial role in the conspiracy. United States v. Muyet, Nos. 98-1421(L), 98-1538, 98-1550, 98-1565, 98-1633, 2000 WL 1275925, at *1-3 (2d Cir. Sept. 8, 2000). On September 8, 2000, the Second Circuit affirmed Sosa's conviction. Id. at *1. The United States Supreme Court denied Sosa's petition for a writ of certiorari on February 20, 2001. Sosa v. United States, 531 U.S. 1166 (2001).

Sosa filed the instant petition with the Pro Se Office of this Court on February 19, 2002. He claims that (1) he received ineffective assistance of appellate counsel because his counsel failed to appeal the district court's denial of motion for judgment of acquittal, and because his counsel did not raise on appeal the claim that the court's jury instructions constructively amended the indictment; and (2) that his sentence was impermissibly enhanced beyond the maximum range, inconsistent with the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000). See Petitioner's Memorandum of Law In Support of 28 U.S.C. § 2255 at 3, 8-9.


I. Sosa Received Effective Appellate Counsel Assistance

Sosa's claim that he did not receive effective appellate counsel assistance is not supported by convincing evidence of deficient counsel performance, and therefore, this claim is rejected. The Sixth Amendment right to the assistance of counsel is a "`right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)). To prove ineffective assistance of counsel, a petitioner must show (1) "that counsel's performance was deficient," and (2) "that the deficient performance prejudiced the defense." Id. at 687. This test applies equally to the evaluation of appellate counsel. See Evitts v. Lucey, 469 U.S. 387, 396-97 (1985) ("[T]he promise of . . . a right to counsel on appeal . . . would be a futile gesture unless it comprehended the right to the effective assistance of counsel."); Frederick v. Warden, 308 F.3d 192, 197 (2d Cir. 2002) (applying Strickland's two-prong test to determine if appellant received ineffective assistance of counsel on appeal); see also Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990). Sosa is unable to prove that his counsel's performance was deficient, and therefore, Sosa's ineffective assistance of appellate counsel claim fails.

The omissions on appeal of the two claims identified by the petitioner do not amount to deficient counsel performance. Deficient performance is defined as representation which, under the totality of the circumstances, "[falls] below an objective standard of reasonableness," measured by "prevailing professional norms." Strickland, 466 U.S. at 687-88. When reviewing attorney performance to determine if it was inadequate, there is a strong presumption that counsel acted reasonably, and that counsel's actions may be considered "sound trial strategy." Id. at 689 (citation omitted). Sosa argues that his appellate counsel's performance was deficient, and therefore was ineffective, based on two omissions: (1) counsel's failure to raise on appeal the claim that the district court amended the grand jury indictment through its jury instructions, and (2) counsel's failure to raise on appeal the argument that the district court relied on facts not supported by the record when the court denied Sosa's motion for acquittal. However, neither of these omissions constitute deficient performance.

The claims that Sosa's appellate counsel did not raise were without merit, and therefore, their omission from appeal does not constitute deficient performance. Although a petitioner may prove ineffective assistance of counsel by showing that counsel failed to pursue "significant and obvious issues," Mayo, 13 F.3d at 533 (2d Cir. 1994), "failure to make a meritless argument does not rise to the level of ineffective assistance." United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (denying an ineffective assistance of counsel claim, in part, because the motions not pursued by counsel were without merit) (emphasis added); see also Jones v. Barnes, 463 U.S. 745 (1983) (denying petitioner's ineffective assistance of appellate counsel claim because attorneys are not required to raise every claim suggested by their clients, and thus, failure to do so does not constitute ineffective assistance). Both bases for appeal that the petitioner offers as significant omissions were meritless claims, and therefore do not render his appellate assistance ineffective.

Wording the jury instructions in the disjunctive does not amend a grand jury indictment issued in the conjunctive, and thus, any challenge to this effect would be unsuccessful. The Second Circuit has held that "indictments worded in the conjunctive, charging violations of statutes worded in the disjunctive, can be supported by proof of either of the conjoined means of violating the act." United States v. Cioffi, 487 F.2d 492, 499 (2d Cir. 1973). Moreover, this rule extends to situations where the trial court's jury instructions for an indictment charged in the conjunctive are worded disjunctively. United States v. Rioux, 97 F.3d 648, 661 (2d Cir. 1996); see also United States v. McDonough, 56 F.3d 381, 390 (2d Cir. 1995). In the instant case, the statute that petitioner violated authorizes prosecution of any person who "in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm." 18 U.S.C. § 924 (c) (emphasis added). The indictment issued against Sosa charging him with this violation alleged that he "used and carried" a firearm, Indictment ¶ 95 (emphasis added), and the jury instructions with regard to this count articulated that defendant should be found guilty if, beyond a reasonable doubt, "he knowingly used or carried a firearm." Trial Transcript at 8797 (emphasis added). However, the fact that the jury in Sosa's case was charged in the disjunctive is not problematic, and therefore his claim that the jury should have been charged in the conjunctive (and that this should have been considered on appeal) is meritless. Omission of this claim on appeal does not constitute ineffective assistance.

The trial court also did not err in denying the petitioner's motion for acquittal on Count Forty-Three because there was sufficient evidence that he was using or carrying a firearm in connection with a drug trafficking offense, and therefore raising this claim on appeal would have been frivolous. "When a defendant moves for a judgment of acquittal, the Court must determine whether, upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (quoting United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972)). If the court finds that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," the conviction must stand. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A great amount of deference must be given to the jury's conclusions, see United States v. Dhinsa, 243 F.3d 635, 648-49 (2d Cir. 2001) ("`We defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence.'" (quoting United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998))); United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991) ("A reviewing court must draw all available inferences, and resolve all issues of credibility, in favor of the jury's verdict." (internal quotations omitted)), and the totality of the evidence must be reviewed "`in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government.'" Dhinsa, 243 F.3d at 648 (quoting United States v. Walker, 191 F.3d 326, 333 (2d Cir. 1999)); see also Jackson, 443 U.S. at 319 (noting that when reviewing the sufficiency of the evidence to support a conviction, "all of the evidence is to be considered in the light most favorable to the prosecution").

Evidence supporting Sosa's conviction for using or carrying a firearm in connection with a drug trafficking offense included testimony that Sosa was a manager for the drug operation, testimony that managers were responsible for giving drugs to the sellers and handing over guns and drugs to the next shift of managers, and the testimony of Juan Machin that he witnessed Sosa carrying a gun while he was acting as manager. See Muyet, 993 F. Supp. at 233. Given the high standard for succeeding on a motion for acquittal, coupled with the strong presumption in favor of the government, necessary deference to the jury's determinations, and the substantial amount of evidence against Sosa, the trial court likely did not err in denying his motion for acquittal. Because this argument probably would have failed on appeal, it was not deficient for appellate counsel to omit this argument.*fn2

II. Apprendi Claim Forfeited by Waiver

This Court cannot review the petitioner's claim based on the ruling in Apprendi — that his sentence should be reduced because facts increasing the penalty were not submitted to the jury — because, although Apprendi would have applied to the petitioner's case, this challenge was forfeited on appeal. The Government argues that an Apprendi claim should be barred because Apprendi does not apply retroactively on collateral review. See The Government's Memorandum of Law in Opposition to Frank Sosa's Petition Pursuant to 28 U.S.C. § 2255 at 20. Whether or not this premise is true need not be addressed here, however, because Apprendi was decided before Sosa's case became final, and therefore the issue is not one of retroactivity. "Final, in the context of retroactivity analysis, means that a judgment of conviction has been entered, the time for direct appeals from that judgment has expired, and the time to petition the United States Supreme Court for certiorari has expired." Diaz v. Scully, 821 F.2d 153, 156 (2d Cir. 1987) (Kearse, J.); see also Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987) ("By "final," we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied."). Any case that is not final at the time of a decision announcing a new rule may invoke that rule. Griffith, 479 U.S. at 322, 328 ("`[A]ll defendants whose cases were still pending on direct appeal at the time of the law-changing decision should be entitled to invoke the new rule.'" (quoting United States v. Johnson, 457 U.S. 537, 545 (1982))); United States v. Jackson, 196 F.3d 383, 384 (2d Cir. 1999) (applying a new Supreme Court decision to an appeal, notwithstanding the fact that the new decision was rendered one day after the circuit court's original opinion, because time to petition the court for rehearing and time to petition the United States Supreme Court for certiorari for the case in question had not yet expired when the new decision was delivered) (Kearse, J.); see also United States v. Joyner, 313 F.3d 40, 45 (2d Cir. 2002) (finding that Apprendi was applicable to a case on petition for a rehearing); United States v. Gutierrez Rodriguez, 288 F.3d 472, 476 n. 2 (2d Cir. 2002) ("[B]ecause Apprendi was decided while appellant's appeal was pending, its teachings apply."). Under this standard, Sosa's case did not become "final" until February 20, 2001, when the Supreme Court denied his writ for certiorari. Apprendi was decided on June 26, 2000, almost eight months prior thereto. Therefore, because his case was not yet final at the time Apprendi was decided, Sosa was entitled to invoke Apprendi.

Although Sosa was permitted to raise a claim based on Apprendi, he failed to do so, and because he does not demonstrate either cause for or prejudice from this default, he forfeited collateral review under a § 2255 petition of this claim. Failure to raise an issue on appeal constitutes a default, precluding collateral review, unless the defendant can show cause for the failure and prejudice resulting from the omission. See Murray v. Carrier, 477 U.S. 478, 491 (1986) (adopting the cause and prejudice test for collateral review of procedural defaults on appeal (citing Reed v. Ross, 468 U.S. 1, 10-11 (1984))); Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) ("[A] federal prisoner who fails to raise an issue on direct appeal cannot subsequently raise the issue in a § 2255 petition unless he can show cause for his failure . . . Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) (barring collateral review of a fourth amendment claim in a § 2255 petition because the defendant did not raise this claim on direct appeal, and was unable to show cause for this failure); United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001) (applying the cause and prejudice test to collateral review of a case where the petitioner failed to raise a claim based on Apprendi-type reasoning during both his trial and appeal); Raulston v. Menifee, No. 01 CIV. 0406 (DC), 2002 WL 826810, at *5 (S.D.N.Y. Apr. 30, 2002) (finding a procedural default resulting from a failure to raise an Apprendi claim on direct appeal, therefore requiring the petitioner to prove both cause and prejudice to justify § 2255 review of this claim). To overcome a procedural default, defendants must show cause based on "some objective factor external to the defense [that] impeded counsel's efforts," Murray, 477 U.S. at 488, and prejudice consisting of "actual and substantial disadvantage, infecting [the defendant's] entire trial with error of constitutional dimensions," United States v. Frady, 456 U.S. 152, 170 (1982). Sosa did not submit an Apprendi argument on appeal (or at any point prior to his § 2255 petition) and therefore, unless he can prove cause for and prejudice from this default, this court may not review such a claim.

There is no cause identified that would be satisfactory to justify collateral review of the petitioner's forfeited Apprendi claim. Although the Apprendi decision was almost contemporary to the time of Sosa's appeal, Apprendi was not sufficiently novel to establish cause for default because Apprendi was decided before Sosa's appeal concluded, and defendants commonly posed Apprendi-type arguments even before Apprendi was decided. The fact that "a constitutional claim is so novel that its legal basis is not reasonably available to counsel" at the time of the appeal is sufficient to constitute cause for failure to raise the claim. Reed, 468 U.S. at 16. However, "[w]here the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default." Engle v. Isaac, 456 U.S. 107, 134 (1982); see Smith, 241 F.3d at 548 ("[T]he foundation for Apprendi was laid long before 1992. Other defendants had been making Apprendi-like arguments ever since the Sentencing Guidelines came into being, and in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court addressed on the merits an argument along similar lines."); Raulston, 2002 WL 826810, at *5 (noting that because Apprendi was "`percolating' in the courts" at the time of a default, and because Apprendi-type arguments were made long before the case at hand was actually decided, there was insufficient cause for petitioner's failure to raise an Apprendi claim); Clarke v. United States, No. 01 Civ. 9040 RCC, 2002 WL 31207338, at *4 (S.D.N.Y. Oct. 2, 2002) (refusing to review petitioner's defaulted Apprendi claim, even though Apprendi was not yet decided at the time of petitioner's appeal, because "arguments positing sentence-enhancing factors as questions for a jury are not novel and were raised well before Apprendi."). Sosa's appeal was not decided until after Apprendi concluded, and long after Apprendi-type arguments had been made before courts. Therefore, he cannot rely on the novelty of the Apprendi decision as cause justifying collateral review of a defaulted claim.

It is also insufficient to justify Sosa's default on either the fact that his attorney is to blame for the omission, or that counsel purposefully omitted this argument because its novelty rendered it futile. "[I]gnorant or inadvertent attorney error" resulting in a failure to recognize a legal claim "does not constitute cause for a procedural default." Murray, 477 U.S. at 486. Moreover, [f]utility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.'" Clarke, 2002 WL 31207338, at *4 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Therefore, neither redirecting the blame nor relying on a futility argument constitute sufficient cause for allowing collateral review of the petitioner's forfeited claim. Similarly, this default cannot be overcome by cause based on the fact that the petitioner may have been unaware of this legal basis for appeal himself. "[T]he requirement that `cause' be external to the petitioner does not encompass a petitioner's alleged belated understanding of his rights." Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993). Thus, Sosa's own ignorance does not amount to cause justifying an exception to his default. In conclusion, because Sosa cannot prove cause for the procedural default of his Apprendi claim, this Court cannot now review this argument.*fn3


For the foregoing reasons, Sosa's petition pursuant to 28 U.S.C. § 2255 is HEREBY DENIED.


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