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ANTWI v. U.S.

December 9, 2004.

JOSEPH ANTWI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

In a timely petition signed on June 15, 2004, received by the Pro Se Office of this Court on June 16, and filed on July 9,*fn1 Joseph Antwi ("Antwi") challenges his conviction following trial and his sentence on eight grounds. His challenges concern his extradition from Ghana to distribute heroin, various ineffective assistance of counsel claims, and a claim based on the Supreme Court's ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004). For the following reasons, Antwi's petition is denied on all grounds.

  BACKGROUND

  On May 10, 2001, the Government signed an affidavit to support a request for Antwi's extradition from Ghana based on a sealed indictment charging him with one count of conspiracy to distribute or to possess with the intent to distribute one kilogram or more of heroin and more than five kilograms of cocaine, 21 U.S.C. § 846, and two counts of distribution or possession with the intent to distribute more than 100 grams of heroin, 21 U.S.C. §§ 841 (a) (1), (b) (1) (B). The affidavit was transmitted to Ghanaian law enforcement authorities, providing a summary of the facts and procedural history of the case as well as a legal explanation of the charges brought against Antwi, including clarifications that conspiracy is separate from substantive crimes, and that a conviction may be validly obtained against a defendant for conspiracy without a conviction, or even commission, of the underlying substantive crimes.

  Antwi was arraigned in Ghana in June 2001, and was subsequently found extraditable for the crimes charged in his indictment by the Community Centre Tribunal in Accra, Ghana, on June 20, 2001. In its Certificate of Committal, the Tribunal found that the charged offenses constituted "an extradition crime that the fugitive criminal would have been committed for trial if the crime of which he is sought in the United States of America was committed in Ghana," and therefore "order[ed] that the fugitive criminal Joseph Antwi . . . be committed in prison and await the warrant of the Minister for the Interior for his (Joseph Antwi) surrender." Antwi did not appeal this decision within the allotted fifteen day period, and was subsequently extradited to this District for trial.

  Antwi's trial began on June 10, 2002, and on June 20, Antwi was convicted by a jury of conspiracy to distribute or to possess with the intent to distribute one kilogram or more of heroin, and was acquitted of two counts of distribution or possession with the intent to distribute heroin. The evidence at Antwi's trial established that he and his co-conspirators transported heroin from Ghana to New York on numerous occasions in 1998 and 1999, and included eyewitness testimony, travel records and recorded conversations between Antwi and his co-conspirators. At the close of the trial, the jury was instructed, in relevant part:
In order to find the defendant guilty of the conspiracy charged in Count One of the indictment, you must find beyond a reasonable doubt:
First: That the conspiracy charged in Count One of the indictment existed from in or about 1997 to December 1999, that is, an agreement or understanding among two or more persons to unlawfully, intentionally, and knowingly distribute or possess with the intent to distribute heroin; and
Second: That the defendant unlawfully, intentionally, and knowingly became a member of the conspiracy.
(Emphasis supplied). The jury was also given specific instructions with respect to the quantity of heroin involved in the conspiracy:
If you find the defendant guilty on Count One, there is one more issue you must decide. You must also decide whether the Government has proven each of the following beyond a reasonable doubt: (1) that it was an object of the conspiracy to distribute or to possess with the intent to distribute at least a certain quantity of heroin, and (2) that the defendant knew or should have known that that was an object of the conspiracy, or that it was reasonably foreseeable to the defendant that that was an object of the conspiracy.
You must answer this question with respect to two different quantities: Did the Government prove beyond a reasonable doubt that this was true with regard to one kilogram or more of heroin? If not, did the Government prove beyond a reasonable doubt that this was true with regard to 100 grams or more of heroin?
(Emphasis supplied). Following the instructions, the jury was given a verdict form that stated, in relevant part:
I. Count One: Conspiracy to Violate the Narcotics Laws
_____ Not Guilty _____ Guilty
[Proceed to Question I.A only if you have found the defendant guilty with respect to Count One.]
I.A In connection with Count One, has the Government proven beyond a reasonable doubt that the defendant conspired to distribute or to possess with the intent to distribute one kilogram or more of heroin?
_____ No _____ Yes
[Proceed to Question I.B only if you have answered "No" to question I.A.]
I.B In connection with Count One, has the Government proven beyond a reasonable doubt that the defendant conspired to distribute or to possess with the intent to distribute 100 grams or more of heroin?
_____ No _____ Yes
Following his conviction on Count One with a jury finding of a heroin quantity of one kilogram or more, which carries a maximum prison term of life, see 21 U.S.C. §§ 841 (b) (1) (A) (i) and 846, Antwi was sentenced to a prison term of 188 months. At sentencing, Antwi's base offense level was calculated to be 34, but he received a two-level enhancement, pursuant to Section 3C1.1 of the United States Sentencing Guidelines, based on a finding that Antwi had lied repeatedly about material issues in his trial testimony, and therefore had intentionally obstructed justice. Antwi took a direct appeal from his conviction, and his conviction and sentence were affirmed. United States v. Amadu, No. 02-1559, 2003 WL 22002671 (2d Cir. Aug. 21, 2003). In his direct appeal, where Antwi was represented by his trial counsel, James A. Cohen, Antwi did not raise any of the claims he raises here.

  In his habeas petition filed on July 9, 2004, including his supplemental Blakely claim filed on August 12, Antwi challenges his conviction and sentence with arguments that he divides into six categories. Construing his papers liberally as courts are required to do with pro se submissions, see Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004), it is apparent that Antwi is raising as many as eight distinct claims. Consequently, this Opinion addresses each of the following eight claims in turn: (1) that Antwi's presence in the United States was secured by the Government in violation of the bilateral extradition treaty governing relations between the United States and Ghana, and its associated extradition law principles of specialty and dual criminality,*fn2 and therefore his conviction should be vacated; (2) that his counsel provided ineffective assistance by failing to object to his extradition, which was allegedly in violation of the bilateral extradition treaty governing relations between the United States and Ghana, and its associated extradition law principles of specialty and dual criminality; (3) that his counsel provided ineffective assistance by failing to object to a violation of the bilateral extradition treaty governing relations between the United States and Ghana, and its associated extradition law principles of specialty and dual criminality at sentencing when he received an offense level enhancement for obstruction of justice; (4) that his counsel provided ineffective assistance by failing to notify Antwi of an outstanding plea offer by the Government and by otherwise failing to advise Antwi to plead guilty; (5) that his counsel provided ineffective assistance by failing to object to a jury charge that allegedly did not instruct the jury to decide whether heroin was the substance whose distribution was the object of the conspiracy; (6) that his counsel provided ineffective assistance by failing to object to a special verdict form that Antwi calls "suggestive"; (7) that his counsel provided ineffective assistance by failing to advise him that testifying at trial could lead to a sentence enhancement if he were convicted; and (8) that the Supreme Court's ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004), which held that a state trial court's sentencing of a defendant above the statutory maximum of the standard range for the offense based on the judge's own factual findings violated the defendant's Sixth Amendment right to a jury trial, id. at 2537, requires a sentence reduction of two offense levels because this Court enhanced his offense level based on its own factual findings.

  DISCUSSION

  1. Extradition Treaty

  Antwi asserts that his extradition violated the treaty between the United States and Ghana. A habeas petition brought pursuant to Section 2255 "is not a substitute for an appeal," and a defendant who did not raise his claims on appeal will be barred from raising them for the first time in a habeas petition unless he "can demonstrate either: (1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence." Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (citation omitted). Cause "must be something external to the petitioner, something that cannot fairly be attributed to him," such as administrative interference. Coleman v. Thompson, 501 U.S. 722, 753 (1991) (emphasis in original). Attorney error "that constitutes ineffective assistance of counsel is cause." Id. at 754.

  On direct appeal, Antwi did not raise the claim that his presence in the United States was secured by the Government in violation of extradition law principles of specialty and dual criminality, and that therefore his conviction should be vacated. As discussed below in the context of his ineffective assistance claims, Antwi is unable to demonstrate that his attorney was ineffective, nor any other type of cause for failing to raise this claim on appeal. Consequently, his extradition law claim is procedurally barred.

  Antwi's claim also fails on its merits for reasons discussed later. It is not possible to reach the merits of his claim, however, without resolving the question of whether Antwi has standing to raise the claim in the first instance. The obligation that courts must resolve threshold questions of jurisdiction and standing before proceeding to consider the merits of a claim at any stage of a proceeding is "inflexible and without exception." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998) (citation omitted).

  The Second Circuit has not decided whether defendants have standing to raise claims based on alleged violations of extradition treaty provisions relating to the principles of specialty*fn3 and dual criminality.*fn4 Those circuit courts that have addressed the question with respect to the principle of specialty are split, as are the courts in this District that have addressed it. Compare United States v. Kaufman, 874 F.2d 242, 243 (5th Cir. 1989) (per curiam), Demjanjuk v. Petrovsky, 776 F.2d 571, 583-84 (6th Cir. 1985), cert. denied, 475 U.S. 1016, vacated on other grounds by 10 F.3d 338, United States v. Nosov, 153 F. Supp. 2d 477, 480 (S.D.N.Y. 2001), and United States ex. rel. Cabrera v. Warden, Metropolitan Correctional Center, 629 F. Supp. 699, 701 (S.D.N.Y. 1986), with United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir. 1995), United States v. Levy, 905 F.2d 326, 328 n. 1 (10th Cir. 1990), United States v. Thirion, 813 F.2d 146, 151 n. 5 (8th Cir. 1987) United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986), and United States v. Martonak, 187 F. Supp. 2d 117, 122 (S.D.N.Y. 2002). The two circuit courts that have considered the question of standing with respect to the principle of dual criminality are also split, while it appears that no court in this District has addressed it. Compare Gallo-Chamorro v. United States, 233 F.3d 1298, 1306 (11th Cir. 2000), with Casey v. Department of State, 980 F.2d 1472, 1475-76, 1479 (D.C. Cir. 1992). For the following reasons, Antwi has standing to raise a claim grounded on an alleged violation of the doctrine of specialty, but does not have such standing for a claim based on dual criminality.

  In order for a plaintiff or petitioner to have standing under Article III of the Constitution, he must demonstrate injury in fact, causation, and redressability. Citizens for a Better Environment, 523 U.S. at 103. "Injury in fact" is a harm that is "concrete" and "actual or imminent," not "conjectural" or "hypothetical." Id. (citation omitted). The question here is whether Antwi can demonstrate an injury in fact by the alleged violation of an extradition treaty provision, or whether the rights created by an extradition treaty extend solely to the state parties that entered into the treaty.

  In the absence of an extradition treaty, a state is generally under no legal obligation to transfer a fugitive to a state seeking custody of that individual, because such an obligation would infringe upon the state's sovereign right to exercise jurisdiction over objects within its territory. Among other things, this default rule allows states to protect their political interests by retaining the option not to transfer individuals who may be prosecuted purely for their political beliefs. States are free to diverge from this rule simply by transferring individuals to states requesting custody for the purpose of prosecution in an ad hoc manner, see United States v. Merit, 962 F.2d 917 (9th Cir. 1992), or by concluding extradition treaties with other states. Extradition treaties modify this principle by creating mechanisms for states to extradite individuals accused of ...


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