The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
On July 12, 2001, Petitioner Terrence Anderson ("Petitioner")
pled guilty to distributing crack cocaine in violation of
21 U.S.C. § 841(a)(1), which makes it "unlawful for any person
knowingly or intentionally to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance." 21 U.S.C. § 841(a)(1) (2002).
As a result of this violation, on November 8, 2001, Petitioner
was sentenced to 70 months imprisonment, followed by 5 years of
supervised release. Petitioner now files a petition, pursuant to
28 U.S.C. § 2255, seeking to vacate his conviction and sentence.
(a) Basis of the instant petition
First, Petitioner contends that his attorney, Terrence Kindlon,
failed to provide effective assistance. Petitioner relies on
Strickland v. Washington, 466 U.S. 668 (1984), which requires
satisfaction of a two prong test to demonstrate counsel's
To satisfy the first prong requires a "show[ing] that counsel's
performance was deficient[,]" which means "that counsel made errors so serious that counsel was
not functioning as the `counsel' guaranteed the defendant by the
Sixth Amendment." Strickland, 466 U.S. at 687. In support of
the first prong, Petitioner states that Mr. Kindlon's assistance
was deficient because he failed to inform the Petitioner that the
court lacked subject matter jurisdiction over his violation
because "21 U.S.C. Food & Drugs, is not positive law."
To satisfy the second prong requires a petitioner to
demonstrate "that the deficient performance prejudiced the
defense . . . [by] showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose result
is reliable." Strickland, 466 U.S. at 687. In support of the
second prong, Petitioner states that Mr. Kindlon provided
ineffective assistance "by allowing the District Court Judge Khan
[sic] to pass judgement [sic] on the petitioners [sic] case that
was lacking subject matter jurisdiction, and for non enacted
positive law 21 U.S.C. Food & Drugs." As a result, Petitioner
states that he was substantially prejudiced.
Second, Petitioner argues that his conviction is unlawful
because the court lacked subject matter jurisdiction because "21
U.S.C. Food and Drugs was not enacted in positive law."
Although Petitioner states that he received ineffective
assistance of counsel and that his conviction was unlawful, the
legal rationale he puts forth for both claims is the same,
namely, that "21 U.S.C. Food and Drugs was not enacted in
positive law." Consequently, the Court need only address this one
1 U.S.C. § 204(a) states, "The matter set forth in the edition
of the Code of Laws of the United States current at any time
shall, together with the then current supplement, if any,
establish prima facie the laws of the United States . . . Provided,
however, That whenever titles of such Code shall have been
enacted into positive law*fn2 the text thereof shall be
legal evidence of the laws therein contained, in all the courts
of the United States, the several States, and the Territories and
insular possessions of the United States." 1 U.S.C. § 204(a)
(2004). When a title has not been enacted into positive law, the
underlying legislation of that title, as set forth in the
Statutes at Large, provides legal evidence of the law.
1 U.S.C. § 112 (2004); see also United States Nat'l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 & n. 3
(1993). Therefore, where there is an inconsistency or conflict
between the Code and the Statutes at Large, the Statutes at Large
prevail over the Code. See United States v. Welden,
377 U.S. 95, 98-99 n. 4 (1963); Stephan v. United States, 319 U.S. 423,
426 (1943); United States Nat'l Bank of Or., 508 U.S. at 448.
In fact, "Congress's failure to enact a title into positive law
has only evidentiary significance and does not render the
underlying enactment invalid or unenforceable." Ryan v. Bilby,
764 F.2d 1325, 1328 (9th Cir. 1985) (citing 1 U.S.C. § 204(a)
The title at issue here, Title 21, Food and Drugs, has not been
enacted into positive law. See 1 U.S.C. § 204 note (United
States Code Titles as Positive Law, not listing Title 21);
Henriquez v. United States, 2003 WL 21242722, *2 (S.D.N.Y.
2003); United States v. Almonte-Nunez, 1999 WL 1215922, *1
(D.C. Cir. 1999). However, the text of the section in question,
21 U.S.C. § 841(a), is identical to that of the original statute, and "the fact that
Congress has not enacted Title 21 into positive law has no
bearing on this Court's jurisdiction in this matter."
Henriquez, 2003 WL 21242722 at *2; see also Pub.L. No.
91-513, 84 Stat. 1260 (1970). In United States v. Zuger, the
defendant claimed precisely what the Petitioner here now claims
that unless Congress enacts a title of the United States Code
into positive law, the title and all provisions contained therein
are of no legal force. 602 F. Supp. 889, 891 (D. Conn. 1984). The
court rejected this argument, concluding that "the failure of
Congress to enact a title as such and in such form into positive
law . . . in no way impugns the validity, effect, enforceability
or constitutionality of the laws as contained and set forth in
the title." Id. at 891-92; see also Henriquez, 2003 WL
21242722 at *2.
Specifically, at least one other court, when faced with the
question of whether 21 U.S.C. § 841 is valid despite the fact
that it has not been enacted into positive law, clearly stated
that the "argument is frivolous." See Almonte-Nunez, 1999 WL
1215922 at *1.
As Title 21, United States Code, § 841, was enacted by Congress
as part of the Comprehensive Drug Abuse Prevention and Control
Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236 (codified as
amended at 21 U.S.C. § 801 et seq.), it is the law of the United
States. See, e.g., Proyect v. United States, 101 F.3d 11,
12 (2nd Cir. 1996) (noting enactment and constitutionality of
this statute); United States v. Terry, 1999 WL 20911, *3
(N.D.N.Y. 1999) (holding that 21 U.S.C. § 841 is constitutional,
a violation of which is an offense against the United States, ...