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 ...