(Argued: December 13, 2012
28 Before: WESLEY, HALL, Circuit Judges, Goldberg, Judge.*fn1
Appeal from the district court's judgment of August 9,
32 2011, entered pursuant to its ruling and order of August
4, 2011, denying Petitioner-Appellant Tranell McCoy's
for writ of habeas corpus and issuing a certificate
of appealability as to McCoy's ineffective assistance
of counsel claim. In its ruling and order, the district
held, inter alia, that McCoy's trial counsel was
38 constitutionally defective for failing to challenge a
39 offender notice filed by the government, see 21 U.S.C.
851, which caused the five year mandatory minimum
for McCoy's convictions to increase to ten years, see
21 U.S.C. § 841(b)(l)(B). We affirm.
22 Petitioner-Appellant Tranell McCoy appeals from the 23 district court's judgment of August 9, 2011, entered 24 pursuant to its ruling and order of August 4, 2011, denying 25 his petition for writ of habeas corpus and issuing a 26 certificate of appealability as to McCoy's ineffective 27 assistance of counsel claim. In its ruling and order, the 28 district court held, inter alia, that McCoy's trial counsel 29 was not constitutionally defective for failing to challenge 30 a second offender notice filed by the government, see 21 31 U.S.C. § 851, which caused the five year mandatory minimum 32 sentence for McCoy's convictions to increase to ten years, 33 see 21 U.S.C. § 841(b)(l)(B). McCoy v. United States, No. 1 3:09-cv-1960 (MRK), 2011 WL 3439529, at *1 (D. Conn. Aug. 4, 2 2011). For the following reasons, we affirm.
4 In August 2006, a jury convicted McCoy on charges 5 contained in two separate indictments, including conspiracy 6 to possess with intent to distribute five grams or more of 7 cocaine base; possession with intent to distribute five 8 grams or more of cocaine base; possession with intent to 9 distribute marijuana; and possession of a firearm in 10 furtherance of a drug trafficking crime. Id.
11 Before trial, the government filed a second offender 12 notice pursuant to 21 U.S.C. § 851. In that notice, the 13 government indicated its intent to rely on a prior felony 14 drug conviction that would subject McCoy to a sentencing 15 enhancement under 21 U.S.C. § 841(b). The offense 16 identified by the government was McCoy's 1996 conviction for 17 the sale of narcotics in violation of Connecticut General 18 Statutes § 21a-277(a). In that 1996 case, McCoy entered an 19 Alford plea, i.e., McCoy never admitted to the facts 20 underlying his conviction. See North Carolina v. Alford, 21 400 U.S. 25 (1970). McCoy's trial counsel did not object to 22 the second offender notice, which caused McCoy's five year 23 mandatory minimum sentence to increase to ten years. See 21 1 U.S.C. § 841(b)(l)(B). The district court ultimately 2 imposed a non-Guidelines sentence of 181 months' 3 imprisonment and eight years supervised release. On direct 4 appeal, McCoy's appellate counsel did not object to the 5 second offender enhancement or any other aspect of his 6 sentence. McCoy, 2011 WL 3439529, at *6.
7 On March 17, 2011, McCoy filed an amended petition for 8 writ of habeas corpus pursuant to 28 U.S.C. § 2255 alleging 9 that (1) his sentence was illegal insofar as it was based on 10 a second offender enhancement under § 851; and (2) his trial 11 counsel was ineffective for failing to object to the second 12 offender enhancement.*fn2 McCoy argued, and the government now 13 concedes, that because he entered an Alford plea, the plea 14 transcript and other court documents did not provide a 15 sufficient basis for finding a predicate "felony drug 16 offense." See 21 U.S.C. § 841(b)(l)(B).
17 The district court rejected both of McCoy's claims. 18 With respect to his claim that his sentence was illegal, the 19 district court concluded that McCoy failed to establish 20 either cause or prejudice to excuse his failure to object to 1 the second offender enhancement on direct appeal. McCoy, 2 2011 WL 3439529, at *6-7. It reasoned that the legal basis 3 for his claim was "reasonably available at the time of Mr. 4 McCoy's direct appeal," and that he was not prejudiced 5 because "whether or not the second offender enhancement 6 applied, Mr. McCoy's sentence was in fact far below the 7 applicable Guidelines range." Id. at *6-8. The district 8 court also rejected McCoy's ineffective assistance of 9 counsel claim, concluding that he did not meet the 10 requirements of the Strickland standard. Id. at *9-10; see 11 Strickland v. Washington, 466 U.S. 668 (1984).
12 Nevertheless, the district court issued a certificate of 13 appealability as to the ineffective assistance of counsel 14 claim. McCoy, 2011 WL 3439529, at *10. Although the court 15 was "confident that the performance of Mr. McCoy's trial 16 counsel was not constitutionally deficient," it concluded 17 that "reasonable jurists could debate the Court's 18 assessment" of this claim. Id. 19 II.*fn3 20 To prevail on an ineffective assistance of counsel 21 claim, a habeas petitioner must demonstrate that: (1) his 1 counsel's representation fell below an objective standard of 2 reasonableness; and (2) there is a reasonable probability 3 that, but for counsel's unprofessional errors, the result of 4 the proceeding would have been different. See Strickland, 5 466 U.S. at 687-88, 694. McCoy's petition fails at both 6 steps.
7 McCoy bears a "heavy" burden to establish that trial 8 counsel's performance was unreasonable under "'prevailing 9 professional norms.'" Harrington v. United States, 689 F.3d 10 124, 129-30 (2d Cir. 2012) (quoting Harrington v. Richter, 11 131 S. Ct. 770, 788 (2011)). In this vein, he argues that 12 trial counsel's failure to object to the second ...