McCoy v. United States, No. 11-3457 (2d Cir. 2013)
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Petitioner appealed from the district court's denial of his petition for writ of habeas corpus. The district court held that petitioner's trial counsel was not constitutionally defective for failing to challenge a second offender notice filed by the government, which caused the five year mandatory minimum sentence for petitioner's convictions to increase to ten years. Given the defense bar's long-held position that Connecticut narcotics convictions categorically qualified under 21 U.S.C. 851, it did not constitute ineffective assistance for trial counsel to fail to challenge the second offender notice. Even if trial counsel's performance was deficient, there was not a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Accordingly, the court affirmed the judgment.
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11-3457 McCoy v. United States 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: December 13, 2012 Decided: January 30, 2012) Docket No. 11-3457 TRANELL MCCOY, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. Before: WESLEY, HALL, Circuit Judges, Goldberg, Judge.* Appeal from the district court s judgment of August 9, 2011, entered pursuant to its ruling and order of August 4, 2011, denying Petitioner-Appellant Tranell McCoy s petition 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 court held, inter alia, that McCoy's trial counsel was not constitutionally defective for failing to challenge a second offender notice filed by the government, see 21 U.S.C. § * The Honorable Richard W. Goldberg, of the United States Court of International Trade, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 851, which caused the five year mandatory minimum sentence for McCoy's convictions to increase to ten years, see 21 U.S.C. § 841(b)(l)(B). We affirm. AFFIRMED. STEVEN B. RASILE, Law Offices of Mirto & Rasile, LLC, West Haven, CT for Petitioner-Appellant. ROBERT M. SPECTOR, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney of Counsel, on the brief), for David B. Fein, United States Attorney for the District of Connecticut, New Haven, CT for Respondent-Appellee. PER CURIAM: 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. 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). In its ruling and order, the McCoy v. United States, No. Page 2 of 11 1 3:09-cv-1960 (MRK), 2011 WL 3439529, at *1 (D. Conn. Aug. 4, 2 2011). For the following reasons, we affirm. 3 I. 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 11 furtherance of a drug trafficking crime. Id. 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). 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). 19 Alford plea, i.e., McCoy never admitted to the facts 20 underlying his conviction. 21 400 U.S. 25 (1970). 22 the second offender notice, which caused McCoy s five year 23 mandatory minimum sentence to increase to ten years. The offense In that 1996 case, McCoy entered an See North Carolina v. Alford, McCoy s trial counsel did not object to Page 3 of 11 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. 4 appeal, McCoy s appellate counsel did not object to the 5 second offender enhancement or any other aspect of his 6 sentence. On direct 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.1 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. McCoy argued, and the government now 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 McCoy filed his original § 2255 petition in December 2009. He amended his petition in January 2010. The claims raised in his original and January 2010 amended petition, as well as the district court s disposition of those claims, are not relevant to this appeal. Page 4 of 11 1 the second offender enhancement on direct appeal. McCoy, 2 2011 WL 3439529, at *6-7. 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." 8 court also rejected McCoy s ineffective assistance of 9 counsel claim, concluding that he did not meet the It reasoned that the legal basis Id. at *6-8. The district 10 requirements of the Strickland standard. 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. 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. McCoy, 2011 WL 3439529, at *10. Id. at *9-10; see Although the court Id. 19 II.2 20 To prevail on an ineffective assistance of counsel 21 claim, a habeas petitioner must demonstrate that: (1) his 2 We review de novo a district court s denial of a § 2255 petition. Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004). Page 5 of 11 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. 6 steps. McCoy s petition fails at both 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)). 12 trial counsel s failure to object to the second offender 13 notice fell below prevailing professional norms and was 14 constitutionally deficient. 15 In this vein, he argues that McCoy premises his claim on a discrepancy between the 16 Connecticut and federal drug schedules. 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. Page 6 of 11 When McCoy entered 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). 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. 9 (2005). 10 11 Thus, to establish that Shepard v. United States, 544 U.S. 13, 26 Instead, the government categorically relied on McCoy s 1996 Alford plea. 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. 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). 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). McCoy, 2011 WL Accordingly, the performance of McCoy s Page 7 of 11 As 1 trial counsel did not amount[] to incompetence under 2 prevailing professional norms as examined from counsel s 3 perspective at the time. 4 at 788 (internal quotation marks and citation omitted). 5 Harrington v. Richter, 131 S. Ct. 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.3 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). United A year after Madera, we held that a 3 A serious drug offense under § 924 includes any offense that qualifies as a felony drug offense under § 841. See 18 U.S.C. § 924(e)(2); 21 U.S.C. § 802(44). Page 8 of 11 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. 5 Cir. 2008). 6 United States v. Savage, 542 F.3d 959, 960 (2d But [a]n attorney is not required to forecast changes 7 or advances in the law" in order to provide effective 8 assistance. 9 2001) (internal quotation marks and citation omitted). Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 10 Rather counsel s performance must be assessed . . . as of 11 the time of counsel s conduct without the benefit of 12 hindsight. 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). 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). 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 Id. (internal quotation marks omitted). These cases did not address the Indeed, it was not until June Page 9 of 11 1 used in 21 U.S.C. §§ 802(44) and 841(b)(1). 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). 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. 8 See Sentencing We See Sellan, 261 F.3d at 315. 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. 13 ignores the differences between determining whether cause 14 exists to excuse a procedural default and whether counsel s 15 performance was constitutionally deficient. 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. 20 WL 3439529, at *6-7. 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. But McCoy As the district McCoy, 2011 But given the defense bar s long-held Page 10 of 11 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. 5 U.S. at 694. 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.4 9 3439529 at *8-9. 10 11 See Strickland, 466 The district court made it exceedingly clear McCoy, 2011 WL III. For the foregoing reasons, the judgment of the district 12 court, entered pursuant to its thorough and thoughtful 13 ruling and order, is AFFIRMED. 4 We decline to consider whether the performance of McCoy s appellate counsel was constitutionally deficient as this claim was not included in the certificate of appealability. See Armienti v. United States, 234 F.3d 820, 824 (2d Cir. 2000). 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