UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012
January 30, 2012
TRANELL MCCOY, PETITIONER-APPELLANT,
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.
McCoy v. United States
(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 offender 13 notice fell below prevailing professional norms and was 14 constitutionally deficient.
15 McCoy premises his claim on a discrepancy between the 16 Connecticut and federal drug schedules. When McCoy entered 17 an Alford plea in 1996, Connecticut General Statutes 18 § 21a-277(a) criminalized some conduct that did not fall 19 within the federal definition of a "felony drug offense."
20 Specifically, Connecticut criminalizes conduct involving two 21 obscure opiate derivatives, thenylfentanyl and 22 benzylfentanyl, that no longer fall within the federal 23 definition of a "felony drug offense." Compare Conn. 1 Agencies Regs. § 21a-243-7(a)(10), para. 52, with 21 U.S.C. 2 § 811(a)(1),(h)(2); 51 Fed. Reg. 43025 (Nov. 28, 1986); 50 3 Fed. Reg. 43698 (Oct. 29, 1985). Thus, to establish that 4 McCoy's state conviction qualified as a predicate offense 5 triggering a § 851 sentence enhancement, the government 6 concedes that it needed to rely on court documents "in which 7 the factual basis for [McCoy's] plea was confirmed by the 8 defendant." Shepard v. United States, 544 U.S. 13, 26 9 (2005). Instead, the government categorically relied on 10 McCoy's 1996 Alford plea.
11 We agree with the district court that trial counsel's 12 failure to object to the second offender enhancement does 13 not constitute constitutionally deficient performance. As 14 the court explained, at the time of McCoy's trial and 15 sentencing the District of Connecticut "had proceeded with 16 the long-held belief that prior Connecticut convictions for 17 sale of narcotics qualified categorically as . . . felony 18 drug offenses under 21 U.S.C. § 841(b)(1)." McCoy, 2011 WL 19 3439529, at *9 (internal quotation marks and citation 20 omitted); see also Sarah French Russell, Rethinking 21 Recidivist Enhancements: The Role of Prior Drug Convictions 22 in Federal Sentencing, 43 U.C. Davis L. Rev. 1135, 1199-1202 23 (2010) (same). Accordingly, the performance of McCoy's 1 trial counsel did not "amount to incompetence under 2 prevailing professional norms" as examined from counsel's 3 perspective at the time. Harrington v. Richter, 131 S. Ct. 4 at 788 (internal quotation marks and citation omitted).
5 McCoy does not contest that this was the prevailing 6 professional norm at the time of his trial and sentencing. 7 Instead, he argues that trial counsel should have objected 8 to the second offender enhancement based on developments in 9 the law that occurred after his trial. We disagree.
10 Several weeks after trial, a district court in 11 Connecticut held, for the first time, that a conviction 12 under Connecticut General Statute § 21a-277(a) was not 13 categorically a conviction for a "serious drug offense" 14 under 18 U.S.C. § 924(e) because of the criminalization in 15 Connecticut of benzylfentanyl and thenylfentanyl.*fn4 United 16 States v. Madera, 521 F. Supp. 2d 149, 154-55 (D. Conn. 17 2007); see also United States v. Lopez, 536 F. Supp. 2d 218, 18 221-222 (D. Conn. 2008) (same); United States v. Cohens, No. 19 3:07-cr-195 (EBB), 2008 WL 3824758, at *4-5 (D. Conn. Aug. 20 13, 2008) (same). A year after Madera, we held that a 1 conviction under § 21a-277(b) was not categorically a 2 conviction for a "controlled substance offense" as that term 3 is defined in U.S.S.G. § 4B1.2(b), the career offender 4 guideline. United States v. Savage, 542 F.3d 959, 960 (2d 5 Cir. 2008).
6 But "[a]n attorney is not required to forecast changes 7 or advances in the law" in order to provide effective 8 assistance. Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 9 2001) (internal quotation marks and citation omitted). 10 Rather "counsel's performance must be assessed . . . as of 11 the time of counsel's conduct without the benefit of 12 hindsight." Id. (internal quotation marks omitted).
13 Moreover, even after Madera, Lopez, Cohens, and Savage, it 14 was not immediately apparent to the defense bar that an 15 Alford plea to Connecticut's controlled substance laws could 16 not categorically serve as the basis to enhance a sentence 17 under 21 U.S.C. § 841(b). These cases did not address the 18 long-accepted use of the categorical approach to determine 19 whether a defendant has been convicted of a prior felony 20 drug offense under § 841(b). Indeed, it was not until June 21 29, 2009 that the government acknowledged § 21a-277(a) 22 criminalized conduct involving narcotic substances not 23 covered by the federal definition of a "felony drug offense" 1 used in 21 U.S.C. §§ 802(44) and 841(b)(1). See Sentencing 2 Mem. of United States at 6-8, United States v. Jackson, No. 3 3:06-cr-151 (MRK) (D. Conn. June 29, 2009) (ECF No. 96). We 4 should not fault trial counsel for failing to raise an 5 objection to the second offender enhancement the legal basis 6 for which was not sustained until almost three years after 7 trial. See Sellan, 261 F.3d at 315.
8 McCoy counters that the district court placed him in a 9 "Catch 22" by finding that his claim did not overcome the 10 "cause" portion of the procedural default standard, while 11 also concluding that counsel was not deficient because the 12 argument was novel at the time of the sentencing. But McCoy 13 ignores the differences between determining whether cause 14 exists to excuse a procedural default and whether counsel's 15 performance was constitutionally deficient. As the district 16 court carefully explained, the reason that McCoy failed to 17 establish cause for failing to raise the challenge below is 18 because the argument was "reasonably available" to McCoy and 19 nothing external prevented him from making it. McCoy, 2011 20 WL 3439529, at *6-7. But given the defense bar's long-held 21 position that Connecticut narcotics convictions 22 categorically qualified under § 851, it did not constitute 23 ineffective assistance for trial counsel to fail to 24 challenge the second offender notice. Id. at *9.
1 Finally, even if trial counsel's performance was 2 deficient, there is not a reasonable probability that, but 3 for counsel's unprofessional errors, the result of the 4 proceeding would have been different. See Strickland, 466 5 U.S. at 694. The district court made it exceedingly clear 6 in its original written judgment and in its ruling on the 7 habeas petition that a lower mandatory minimum sentence 8 would not have changed McCoy's sentence.*fn5 McCoy, 2011 WL 9 3439529 at *8-9.
11 For the foregoing reasons, the judgment of the district 12 court, entered pursuant to its thorough and thoughtful 13 ruling and order, is AFFIRMED.