The opinion of the court was delivered by: Trager, J.
Petitioner Rafael Lopez ("petitioner") brings this motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence after he was convicted by a jury of distribution and possession with intent to distribute cocaine base and conspiracy and attempt to distribute cocaine base after having previously been convicted of a drug felony. Petitioner bases his motion on:
(1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3) the prejudicial admission into evidence of a prior felony conviction and (4) the application of a two-point sentencing enhancement for obstruction of justice in violation of the doctrine of judicial estoppel. For the reasons set forth below, the motion is denied.
Petitioner was charged with and convicted of several offenses arising from his participation in a conspiracy to traffic cocaine base. In this case, the type of cocaine base was crack cocaine. On June 17, 1999, an undercover police officer purchased crack from petitioner and his supplier after having been introduced to petitioner by petitioner's friend, Victor Cruz. Nearly two weeks later, the undercover officer met with petitioner and two of his suppliers and purchased another quantity of crack. The undercover officer met with petitioner another three times to purchase crack from him and at least one other person. At the last meeting, on September 8, 1999, petitioner was arrested before completing the transaction.
Petitioner was charged with one count of conspiring to distribute and to possess with intent to distribute a substance containing cocaine base in violation of 21 U.S.C. § 846 and five counts of distributing and possessing with intent to distribute a substance containing cocaine base in violation of § 841(a)(1). On June 2, 2000, petitioner pled guilty to all the charges in the indictment without a plea agreement. According to petitioner's counsel, Alan Seidler, a plea agreement would have waived petitioner's ability to argue that the substance he had sold to the undercover officer was cocaine rather than crack. To that end, trial counsel requested the Government's laboratory reports analyzing the substances petitioner sold to the undercover officer. The sentencing hearing was adjourned to give trial counsel an opportunity to review the reports.
At the continued sentencing hearing, trial counsel asserted that petitioner should be given a sentence pursuant to the Federal Sentencing Guidelines for cocaine offenses, instead of the Guidelines range corresponding to offenses involving crack.*fn1
Trial counsel based this assertion on the fact that the laboratory analyses concluded only that cocaine had been present in the samples.
The Government explained that the samples had been tested only to determine whether they contained cocaine and that it did not request a test for crack because petitioner had pled guilty to selling crack. At the Court's suggestion, the Government agreed to conduct an additional test on one of the samples that had already been tested for the presence of cocaine. Accordingly, the substance involved in the attempted sale of September 8, 1999, was tested and was found to be a 92.5 percent match when compared to a sample of cocaine base. Nonetheless, petitioner insisted that he should not be sentenced under the crack Guidelines and wished to withdraw his plea.
The Government then obtained a superseding indictment. It charged petitioner with (1) conspiring to distribute and to possess with intent to distribute a substance containing cocaine base, having previously been convicted of a felony drug offense, pursuant to § 846, (2) four counts of distribution, pursuant to § 841(a)(1), and (3) one count of attempted distribution, pursuant to § 846. Petitioner moved to dismiss the indictment on the basis that the Government had presented the perjured testimony of an FBI agent to the grand jury indicating that the substances petitioner sold were crack. Trial counsel later withdrew the motion because the superseding indictment was not based on this testimony.
Petitioner had been convicted of felonious possession of a controlled substance in 1991 by a New York State court. Before trial, the Government filed a prior felony information pursuant to 21 U.S.C. § 851 stating that it sought to rely on that conviction to increase his sentence. During a pretrial conference, the Government argued that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the Supreme Court held that any factor which increases the sentence must be determined by a jury, the prior conviction must be presented to the jury out of "an abundance of caution." Trial counsel refused to stipulate to the prior felony conviction, stating that it was an element of the offense, which the government had the burden of proving.
The Government presented several relevant pieces of evidence at trial. The chemists who tested the samples testified about the presence of crack in the substances petitioner sold to the undercover officer. In addition, the FBI agent who questioned petitioner soon after he was arrested testified that petitioner confessed to selling crack after having been read his Miranda rights and signing an "advice of rights" form. The agent also testified that the agent himself identified the substance as crack because of its yellowish color and solid, rocky shape. Lastly, the Government entered into evidence a certified copy of petitioner's New York State conviction on December 20, 1991, of felonious possession of a controlled substance. The conviction identified petitioner as "Rafael Perez a/k/a Rafael Lopez."
Petitioner testified in his defense. He insisted that the substance he sold was cocaine rather than crack. He also admitted that he sold drugs on the five occasions alleged in the indictment, but claimed that he was entrapped into doing so. According to petitioner, Cruz and the undercover officer seized on petitioner's financial difficulties to entrap him. He testified that at the time of the drug sales he was in debt to a funeral home for expenses arising out of the burials of his twin daughters. Indeed, he could not afford tombstones for his daughters' graves. Moreover, he was struggling to keep his flower shop afloat, he worked nights cleaning offices and he was evicted from his apartment for failure to pay rent. Petitioner had been using his BMW as a cab, but Cruz borrowed it and crashed it. The repairs were estimated to cost between $1,500 and $2,700.
According to petitioner's testimony, Cruz suggested that they raise the money by selling drugs at a much higher price than what they paid, or as petitioner called it, "cracking the neck." To that end, Cruz called petitioner to aide him in selling crack to the undercover police officer. In his summation, trial counsel reiterated petitioner's entrapment defense, explaining that it was Cruz's idea to sell the drugs to the undercover officer and that it was Cruz who ...