Petition for Writ of Certiorari — Whitt v. United States

Supreme Coun, U.&.

/ FILED

041418 APR 20 2005

OFFI@E OF THE CLERK

No.

in the

Supreme Court

of the

United States

SAMUEL WHITT,

Petitioner,

LAS

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Kevin M. Schad

8240 Beckett Park Dr.

Indian Springs OH 45011

513.870.4980

kevinschad @ yourattorneys.net

Counsel for Petitioner

ii

QUESTIONS PRESENTED

I.

Does the Petitioner’s life sentence, based upon judicial

findings regarding the amount of drugs involved in the offense and

prior convictions, violate United States v. Booker?

I].

Did counsel render ineffective assistance when he failed to

present a fingerprint expert, given that one fingerprint was the sole

physical evidence tying the Petitioner to the offense?

III.

Did counsel labor under an actual conflict of interest which

prevented him from adequately representing the Petitioner?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ore il

TABLE OF AUTHORITIES ....... iv

OPINION BELOW............ 2 .

FURIE Pe ns dc eaeweas 2 |

CONSTITUTIONAL PROVISION INVOLVED. . 3 |

STATEMENT OF THE CASE........ 4 |

REASON FOR GRANTING THE WRIT....

1. The Petitioner is entitled to a new sentencing

hearing based upon United States v. Booker

6

2. Counsel rendered ineffective representation by failing

to obtain a fingerprint expert 10

x Counsel labored under a conflict of interest which

violated the Petitioner’s right to a fair trial 13

XIU AISONY < cvaevuvenen 16

APPRINGIEM. 6. 66c44xaenaegu X |

iv

TABLE OF AUTHORITIES

Almendarez-Torres v. United States,

523 U.S. 224 (1998) 8

Blakely v. Washington, 124 S.Ct. 2531 (2004) 7

Bryant v. Scott, 28 F.3d 1411 (5" C. 1994) 11

Cox v. Norris, 133 F.3d 565 (8" C. 1997) 10

Crawford v. Head, 311 F.3d 1288 (11" C. 2002) 10

Francis v. United States, --- U.S. ---,

125 S.Ct. 1400 (2005) 8

Gordon v. United States, --- U.S. ---,

125 S.Ct. 1592 (2005) 8

Guy v. Cockrell, 343 F.3d 348 (5" C. 2003) 13

Hall v. United States, 371 F.3d 969 (7" C. 2004) 13

Luna v. Cambra, 306 F.3d 954 (9" C. 2002) 10

Malik v. United States, --- U.S. --- (2005) 7

Mitchell v. Mason, 325 F.3d 732 (6" C. 2003) 10

Olden v. United States, 224 F.3d 561 (6" C. 2000) 10

Pavel v. Hollins, 261 F.3d 210 (2™ C. 2001) 10

Rice v. United States, --- U.S. --- (2005) 8

Shepard v. Uniied States, 125 S.Ct. 1254 (2005) 8,9

United States v. Booker, 543 U.S. ---- (2005) 6

United States v. Ettinger, 344 F.3d 1149 (11" C. 2003) 13

Vv

United States v. Garcia, 517 F.2d 272 (5" C. 1975)

United States v. Hughes, 396 F.3d 374 (4" C. 2005)

United States v. Oliver, 397 F.3d 369 (6" C. 2005)

Vega v. Johnson, 149 F.3d 354 (5"C. 1998)

13

in the

Supreme Court

of the

United States

SAMUEL WHITT

Petitioner,

A)

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

t

Fy

cca,

2

The Petitioner, Samuel Whitt, respectfully prays that a

writ of certiorari issue to review the judgement of the United

States Court of Appeals for the Seventh Circuit, entered in the

above-entitled proceeding on September 3, 2003. A Petition

for Rehearing En Banc was denied on January 21, 2005.

OPINION BELOW

The opinion of the Court of Appeals for the Sixth

Circuit is unreported (Case Nos. 03-1974 & 03-2367) That

determination is attached hereto in Appendix 1. The denial of a

Petition for Rehearing En Banc is attached as Appendix 2. The

Petitioner's 28 U.S.C. § 2255 motion was initially denied by

the United States District Court for the Northern District of

Indiana in an unpublished decision, attached heretc as

Appendix 3.

JURISDICTION

The judgment of the United States Court of Appeals for

the Seventh Circuit was entered on September 3, 2003. A

petition for rehearing en banc was denied on January 21, 2005.

This petition for a writ of certiorari has been filed and docketed

within the time prescribed. The jurisdiction of this Court is

invoked under 28 U.S.C. §1291 and Supreme Court Rule 12.

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3

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation; to

be confronted with the witnesses against him, that have

compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

The Fifth Amendment to the United States Constitution

provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

‘ndictment of a Grand Jury, except in case arising in the land or

naval forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty or property, without due

process of law; nor shall private property be taken for public

use, without just compensation.

4

STATEMENT OF THE CASE

The Petitioner, Samuel Whitt, was convicted in 1996 in

a one count indictment charging him with conspiracy to

distribute cocaine. Prior to trial, the Government filed a 21 ¥

U.S.C. § 851 enhancement, based upon a prior conviction. At

trial, the jury did not pass on the prior enhancement, nor did

they determine the amount of drugs involved in the offense.

On October 7, 1997, the district court determined that the

amount of cocaine involved in the offense was in excess of 150 |

kilograms, that a firearm enhancement was applicable, and that ;

the Petitioner was a leader/organizer. The court was therefore

duty bound under the Guidelines to impose a sentence of life

without parole. j

The Petitioner appealed his sentence and conviction to

the Seventh Circuit, challenging the jury instructions, and

challenging the fact that the judge, and not the jury, determined

the type and quantity of cocaine involved in the offense. This

appeal was denied on May 1, 2000 (211 F.3d 1022); however,

on November 6, 2000, this Court remanded in light of the

Apprendi decision for further review of Petitioner’s claims. 531

U.S. 975 (2000) On February 7, 2001, the Seventh Circuit

issued an opinion again re-affirming the life sentence: The

court found that the prior conviction did not need to be

determined by a jury, and that the admission of appellate

counsel that at least 3.5 kilograms of cocaine were involved F

was sufficient to support the life sentence. 248 F.3d 1161 (7"C.

2001) A subsequent appeal back to this Court was denied on

October 1, 2001. 534 U.S. 887 (2001)

TT Sone? oy

Subsequently, on September 3, 2002, the Petitioner,

acting pro-se, filed a motion in the district court pursuant to 28

U.S.C. § 2255, raising the following issues:

I. That the Petitioner was constructively denied the

right to counsel by counsel’s inability to raise an

Apprendi type claim at trial

5

2. That counsel was ineffective on appeal for

conceding to 3.5 kilograms of cocaine

3. That counsel was ineffective on appeal for

failing to argue an Apprendi type claim

4. That trial counsel labored under a conflict of

interest

> That counsel was ineffective for failing to obtain

a fingerprint expert

This motion was denied without a hearing on February 3, 2003.

(Appendix 3) A subsequent appeal to the Seventh Circuit was

denied on September 3, 2003 (Appendix 1), and a petition for

rehearing en banc request was denied on January 21, 2005.

REASONS FOR GRANTING THE WRIT

The Petitioner submits that his life sentence was

imposed in violation of his Sixth Amendment right to a jury

determination of issues which raised his sentencing exposure.

Further, the Petitioner suffered from conflicted counsel through

the trial process, in violation of his Sixth Amendment right to

counsel. Finally, the Petitioner’s right to the effective

assistance of counsel was abridged by counsel’s failure to

obtain a fingerprint expert.

6

1. The Petitioner is entitled to a new sentencing

hearing based upon United States v. Booker

The Petitioner first submits that his life sentence must

be vacated, as the sentencing judge, and not the jury, made

findings which enhanced his sentence to life without parole not

based upon the jury’s verdict, and not based upon a beyond a

reasonable doubt standard.

A. Booker

In the recent case of United States v. Booker, 543 U.S. -

--- (2005), this Court determined that the United States

Sentencing Guidelines, which required judges to impose a

sentence within a particular range based upon findings made

using a preponderance of the evidence standard at sentencing,

were unconstitutional. The Court determined that “Any fact

(other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a

reasonable doubt” /d. at ---

Based upon this ruling, the various courts of appeal

have ruled that where a sentence is enhanced under the

Guidelines based upon conduct not supported by the jury’s

verdict, a remand for resentencing must occur. In the case of

United States v. Oliver, 397 F.3d 369 (6" C. 2005), the Sixth

Circuit Court of Appeals determined that where the sentencing

court, and not the jury, found facts which enhanced the

defendant’s sentence under U.S.S.G. § 3C1.1, that this

constituted a Booker error, and required resentencing, using

only those Guidelines ranges authorized by the jury’s verdict.

Id. at 380

In the case of United States v. Hughes, 396 F.3d 374 (4"

C. 2005), the Fourth Circuit considered a district court’s

calculation of a sentence in light of Booker. The Fourth Circuit

concluded that the district court did not error in its findings on

7

Sentencing Guidelines enhancements, but held that, because

those enhancements were based upon conduct not supported by

the jury’s verdict, that it was improper to base a sentence on

those enhancements. Therefore, instead of a base offense level

22, as found by the court at sentencing, the defendant properly

faced a level 10, which comported with the jury’s verdict. The

Court therefore remanded for resentencing. /d. at 384

In the present case, the jury’s verdict supported 4

finding of 500 grams of cocaine being involved in the offense.

Pursuant to the Sentencing Guidelines, this would support a

base offense level of 26. At sentencing, however, the

Government encouraged the sentencing court to use the figure

of 150 kilograms of cocaine to base the sentence. The court

held two days worth of hearings on sentencing, and then filed a

31 page sentencing memorandum, in which it explained why

the term of 150 kilograms of cocaine could be supported by a

preponderance of the evidence. The court also added two

points for presence of of a firearm, and four points under 3B1.1

for leadership role. This resulted in a base offense level of 43

(capped out), which combined with the Petitioner’s criminal

history category, required a life sentence.

The Petitioner’s sentence is the classic case of where

the Sentencing Guidelines have served to become the tail which

“wags the dog” of the substantive offense. See Blakely v.

Washington, 124 S.Ct. 2531,2539 (2004) Without such

enhancements (and including the Petitioner’s criminal history

category), the sentencing range authorized by the jury would

have been 92 to 115 months. The Petitioner is serving a life

term of imprisonment. As such, he is entitled to relief, as his

Sixth Amendment right to a jury trial has been clearly violated.

The Petitioner would note, since Booker, this Court has

been consistently granting certiorari and remanding for further

proceedings based upon the Booker decision when such issue is

raised in certiorari petitions. See, for example, Malik v. United

8

States, --- U.S. ---, 73 U.S.L.W. 3593 (2005); Rice v. United

States, --- U.S. ---, 73 U.S.L.W. 3555 (2005); Gordon v. United

States, --- U.S. ---, 125 S.Ct. 1592 (2005); Francis v. United

States, --- U.S. ---, 125 S.Ct. 1400 (2005) The Petitioner asks

for similar treatment for his case.

Finally, the Petitioner would note that, although his case

is currently postured under 28 U.S.C. § 2255, his case presents

a unique situation, in that he timely raised an

Apprendi/Blakely/Booker type claim on direct review. Indeed,

in light of Apprendi, his case was remanded for further review.

In addition, during his 2255 litigation, he has contended that

external forces presented his trial counsel from timely raising

such a claim. Therefore, this is not a circumstance where a

defendant has belatedly attempted to “jump on the

bandwagon”, but instead, is a situation where the issue has been

constantly and consistently raised and preserved by the

Petitioner. It is only at this point, however, where now the

issue will not fall on deaf ears. On this basis, this Court should

grant certiorari, and remand on this issue.

B. Shepard

The Petitioner further submits that this Court’s

decisions in Apprendi, Blakely, and Booker have served to

undercut this Court’s decision in the case of Almendarez-Torres

v. United States, 523 U.S. 224 (1998), such that the judge’s

determination, at sentencing, which raised the statutory

maximum sentence in this case based upon the fact of a certain

prior conviction, no longer comports with the Sixth

Amendment standard.

In the recent case of Shepard v. United States, 125 S.Ct.

1254 (2005), Justice Thomas, in his concurrence, opined that,

in light of this Court’s recent Sixth Amendment/jury trial

jurisprudence regarding sentencing matters, that the Court’s

decision in Almendarez-Torres may no longer be good law.

Justice Thomas noted that a majority of justices recognize that

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9

the Almendarez-Torres decision, which allowed a judge, and

not the jury, to determine enhancing factors based upon prior

convictions, “was wrongly decided”. Shepard at 1264 Justice

Thomas then suggested “in an appropriate case, this Court

should consider Almendarez-Torres' continuing viability.

Innumerable criminal defendants have been unconstitutionally

sentenced under the flawed rule of Almendarez-Torres, despite

the fundamental ‘imperative that the Court maintain absolute

fidelity to the protections of the individual afforded by the

notice, trial by jury, and beyond-a-reasonable-doubt

requirements.” Jd. (Internal cite omit)

The Petitioner’s situation presents such an appropriate

case. The Petitioner's statutory maximum sentence was

increased from 40 years to life based upon a district court’s

finding, at sentencing, that the Petitioner had a prior sentence

which qualified for such an enhancement. Further, the

Petitioner was clearly prejudiced by this judicial finding, as the

Petitioner in fact received a life sentence, instead of the 40 year

sentence he would have been exposed to without such a

finding. On this basis, a writ of certiorari should issue.

10

Be Counsel rendered ineffective representation by

failing to obtain a fingerprint expert

The Petitioner submits that his counsel rendered

ineffective representation prior to trial by failing to investigate

and obtain an expert fingerprint analysis, which resulted in

prejudice, depriving the Petitioner of a reliable jury verdict.

In order to prove ineffective assistance of counsel, the

defendant must prove (1) that counsel’s conduct was not within

the wide range of reasonable professional assistance, and (2)

that counsel’s deficiencies probably changed the outcome of

the proceeding. Olden v. United States, 224 F.3d 561,565 (6"

C. 2000)

As part of counsel’s function in providing the effective

assistance of counsel during the pre-trial phase of litigation,

counsel has a duty to made adequate pre-trial investigation of

defenses. Mitchell v. Mason, 325 F.3d 732,743 (6" C.

2003) “Reasonable performance [by counsel] includes an

adequate investigation of the facts, consideration of viable

theories, and development of evidence to support those

theories.” Cox v. Norris, 133 F.3d 565,573 (8" C. 1997)

While counsel’s decision to not pursue a certain line of

defense will not be second guessed after counsel has made

investigation into that line of defense, no such “benefit of the

doubt” to counsel’s decision making will be given when

counsel wholly fails to investigate. Pavel v. Hollins, 261 F.3d

210 (2 C. 2001) Counsel has a duty to at least make an

investigation into the reasonable options in a case and it can

never be a reasonable choice to fail to investigate such options.

Crawford v. Head, 311 F.3d 1288,1316 (11" C. 2002)

In the case of Luna v. Cambra, 306 F.3d 954 (9"" C.

2002), the defendant argued that his counsel was ineffective

where he failed to investigate certain witnesses. The defendant,

prior to trial, had informed his counsel that he was not at the

location of the crime during the offense, and that he had two

11

witnesses to corroborate this alibi. Despite this, counsel failed

to interview these witnesses. The Ninth Circuit held that such

conduct constituted deficient performance, and, had the jury

heard independent corroboration of the alibi the defendant

testified to, it may have resulted in an acquittal. Thus, the

petition for habeas relief was granted on this basis. /d. at 962-

963

In the present case, the only physical evidence tying the

Petitioner to the offense was one fingerprint found on a plastic

baggy. The Government presented the testimony of a

fingerprint expert to determine that the print was that of the

Petitioner. Counsel did not challenge this assertion, but merely

challenged, through cross-examination, the timing of when

such print could have been placed on the baggy. There was no

challenge to the reliability of the fingerprint analysis, how

many points were used to determine the identity, or how the

print was obtained. Counsel presented no counter witness as to

this crucial physical evidence.

The district court denied this claim, holding that

counsel’s act in cross examining the Government’s expert was

sufficient to overcome any lack of investigation or presentation

into a separate witness. However, in the case of Bryant v.

Scott, 28 F.3d 1411 (5" C. 1994), the court reversed a

conviction on the basis of ineffective assistance of counsel

under circumstances not unlike the Petitioner’s case. The court

held that counsel’s failure to investigate witnesses amounted to

ineffective representation. On appeal, the government had

argued that because trial counsel effectively cross-examined the

two witnesses. The court found, however, that “assuming

[counsel’s] cross examination to be effective, that is not to say

it could not have been improved by prior investigation.” Jd. at

1419

The Petitioner submits that, had counsel done at least

minimal independent investigation, it would have resulted in

the defense being able to present an expert who could have

refuted the only physical evidence in this case. On that basis, a

12

petition should issue on the claim of ineffective representation.

de On tt ei

13

3. Counsel labored under a conflict of interest which

violated the Petitioner’s right to a fair trial

The Petitioner finally submits that certiorari should

issue on his claim that his counsel’s hiring, as a private

investigator, of one of the main Government witnesses against

him in his case created an actual conflict of interest which

rendered the conviction in this case unreliable.

An attorney suffers under a conflict of interest when “he

is prevented, from his own self interest or by his interest in

another’s welfare, from vigorously promoting the welfare of his

client.” Vega v. Johnson, 149 F.3d 354,360 (S" C. 1998) “In

order to show an actual conflict, [the defendant] must make a

factual showing of inconsistent interests or point to specific

instances in the record to suggest that an actual impairment of

his interests exists.” United States v. Ettinger, 344 F.3d

1149,1161 (11" C. 2003)(internal cite omit) “A petitioner

demonstrates an adverse effect by showing that there is a

reasonable likelihood that his counsel's performance would

have been different had there been no conflict of interest.” Hall

v. United States, 371 F.3d 969,974 (7" C. 2004)

In the case of Guy v. Cockrell, 343 F.3d 348 (5" C.

2003), the court remanded for an evidentiary hearing on the

defendant’s claim that his main investigator was conflicted, and

thus, that conflict passed to counsel. In that case, the

investigator had established a relationship with the victim’s

family; in fact, the investigator was eventually named in the

victim’s family will. The Fifth Circuit determined that there

was at least a prima facie issue with regards to a conflict which

could not be resolved on the record alone, and therefore, a

remand for a hearing was necessary.

In Petitioner’s case, his trial counsel utilized a private

investigator named John McGauley for his cases on a regular

basis. The problem with this is that it came to light, the week

14

before trial, that McGauley, who was a former FBI investigator,

was to testify at the Petitioner’s trial against the Petitioner as a

factual witness. This raised serious conflict issues, as counsel

needed to maintain McGauley’s credibility for other cases, and

counsel and McGauley obviously had fostered a working

relationship which would have presented counsel from

seriously undermining McGauley.

The district court, in denying this conflict claim,

determined that the Petitioner knowingly waived this conflict

prior to trial. Certainly, this issue did arise prior to trial.

However, the inquiry made by the district court was not

adequate to address the concern. Specifically, during the

inquiry, the court asked the Petitioner “You’ve had adequate

opportunity to discuss all of these issues with Mr. Swanson and

you’re satisfied as far as you’re concerned that there’s no

conflict of interest with respect to Mr. Swanson’s relationship

with Agent McGauley?”, to which the Petitioner replied “No.”

(Appendix 3, p.20) .

Clearly, instead of alleviating or serving to waive the

conflict, the Petitioner’s response indicated that he did have an

issue with Swanson’s representation. Despite this, the court

took no steps to ensure the Petitioner’s rights, but instead went

on as if the Petitioner never questioned the issue.

In the case of United States v. Garcia, 517 F.2d 272 (5"

C. 1975), the Court indicated that there were several

requirements/inquiries which a court must follow in order to

ensure a proper waiver of any conflict of interest:

[T]he district court should address each

defendant personally and forthrightly advise him

of the potential dangers of representation by

counsel with a conflict of interest. The defendant

must be at liberty to question the district court as

to the nature and consequences of his legal

representation. Most significantly, the court

should seek to elicit a narrative response from

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each defendant that he has been advised of his

right to effective representation, that he

understands the details of his attorney's possible

conflict of interest and the potential perils of

such a conflict, that he has discussed the matter

with his attorney or if he wishes with outside

counsel, and that he voluntarily waives his Sixth

Amendment protections. [cite omit] It is, of

course, vital that the waiver be established by

clear, unequivocal, and unambiguous language.

[cite omit] Mere assent in response to a series of

questions from the bench may in some

circumstances constitute an adequate waiver, but

the court should nonetheless endeavor to have

each defendant personally articulate in detail his .

intent to forego this significant constitutional

protection. Recordation of the waiver colloquy

between defendant and judge will also serve the

government's interest by assisting in shielding

any potential conviction from collateral attack,

either on Sixth Amendment grounds or on a

Fifth or Fourteenth Amendment "fundamental

fairness" basis.

Id. at 17-18

In the present case, there is no indication any of these

safeguards were used. The Petitioner only had the benefit of

conflicted counsel to assist him; the court did not detail the

conflict; and the Petitioner was not afforded a continuance.

The inadequate inquiry by the district court cannot therefore

serve aS a waiver to this issue. On this basis, a writ of certiorari

should issue.

CONCLUSION

The Petitioner requests that this Court reverse the :

findings of the Court of Appeals and the district court, and

remand for further proceedings consistent with this Court’s

opinion.

Respectfully submitted,

Kevin M. Schad

Attorney for Petitioner

Schad & Cook

8240 Beckett Park Dr.

Indian Springs OH 45011

APPENDIX

COURT OF APPEALS DECISION

SEPTEMBER 3, 2003

COURT OF APPEALS DECISION

JANUARY 21, 2005

DISTRICT COURT DECISION

FEBRUARY 3, 2003

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 25, 2003

Decided September 3, 2003

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. LANA DIAMOND ROVNER, Circuit Judge

Nos. 03-1974 & 03-2367

Appeals from the United

SAMUEL L. WHITT, States District Court for

Petitioner-Appellant, the Northern District of

Indiana, Fort Wayne

v. Division

UNITED STATES OF AMERICA, No. 1:02-CV-285

Respondent-Appellee.

William C. Lee,

Judge.

ORDER

Samuel Whitt has filed a notice of appeal from the denial of his

petition under 28 U.S.C. § 2255, which we construe as an

application for a certificate of appealability. This court has

reviewed the final order of the district court and the record of

appeal. We find no substantial showing of a constitutional right.

See 28 U.S.C. § 2253(c)(2).

Accordingly, the-request for a certificate of appealability is

DENIED.

reer ee eee ee es

2005 U.S. App. LEXIS 1362, *

SAMUEL L. WHITT, Plaintiff-Appellant,

UNITED STATES OF AMERICA, Defendant-Appellee.

Nos. 03-1974 & 03-2367

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

2005 U.S. App. LEXIS 1362

January 21, 2005, Decided

PRIOR HISTORY :[*1] Appeal from the United States

District Court for the Northern District of Indiana, Fort Wayne

Division. No. 1:02-CV-285. William C. Lee, Judge.

DISPOSITION: Rehearing and rehearing en banc denied.

JUDGES: Before Hon. JOHN L. COFFEY, Circuit Judge, Hon.

ILANA DIAMOND ROVNER, Circuit Judge.

OPINION: ORDER

‘

On October 21, 2003, the plaintiff-appellant filed a petition for

rehearing en banc. All of the judges on the original panel have

voted to deny the petition for rehearing en banc and no judge in

regular active service has requested a vote on the petition. Thus,

the petition for rehearing en banc is DENIED.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

SAMUEL L. WHITT, ) Filed

Petitioner, ) 2003 FEB-3 PH 2:30

v. ) Stephen R. Ludwig, Clerk

UNITED STATES OF ) USS. District Court

AMERICA, ) For The Northern District

Respondent. ) Of Indiana

)

) 1:95-CR-33

) 1:02-CV-285

MEMORANDUM OF DECISION AND ORDER

This matter is before the Court on a "Petition Under 28

U.S.C. § 2255to Vacate, Set Aside or Correct Sentence by a

Person in Federal Custody" which was filed by Samuel L. Whitt

on September 3, 2002. The government responded to that petition

on November 2, 2002, to which petitioner filed a "Traverse in

Response to Government’s Response" on December 6, 2002.

Because the government had neglected to address one of the issues

which was raised in the initial petition, further briefing was

ordered. The briefing having now been completed,' the petition

will be denied for the following reasons.

Factual Background and Procedural Posture

This case has a lengthy procedural history and is well

known to the Court. In fact, the Court wrote several lengthy

opinions throughout the pendency of the criminal case prior to it

being appealed. Procedurally, the record reflects the following:

On December 20, 1995, Samuel L. Whitt was charged in

a one count indictment alleging that from December 1990 up

'/The final brief was filed on January 21, 2003.

oOo

to and including September 1991, he conspired to distribute more

than 500 grams of cocaine. The United States filed a notice of

penalty enhancement, based upon a prior conviction, on March 28,

1996. A trial was then held on June 18 and 19, 1996, at the

conclusion of which defendant was found guilty as charged.

The Court then held sentencing hearings on July 9 and

October 7, 1997 and, after extensive briefing, the Court issued a

31 page Sentencing Memorandum and Order. In that Order, it was

concluded that defendant was responsible for distributing in excess

of 150 kilograms of cocaine, that he was a leader or organizer of

the conspiracy, and that he utilized a firearm in his drug trafficking

ventures. After a sentencing hearing was set, defendant was

granted leave to file any additional motions relating to sentencing.

On January 5, 1999, he filed a “Motion for Downward

Departure/Request for Medical Evaluation" which was denied by

Order dated March 22, 1999. On April 16, 1999, defendant was

sentenced to life in prison.

He appealed. The United States Court of Appeals for the

Seventh Circuit affirmed both the conviction and sentence on May

1, 2000. Defendant filed a Writ of Certiorari on June 21, 2000, a

little over one month after the United States Supreme Court

decided Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).

Certiorari was granted on November 6, 2000 and the decision was

vacated and remanded to the Seventh Circuit for further

consideration in light of Apprendi. After the parties filed their

position statements, the Seventh Circuit, on February 7, 2001,

reaffirmed both conviction and sentence. A subsequent petition

for Writ of Certiorari was denied by the Supreme Court on

October 1, 2001, and the present petition followed.

As indicated, petitioner was convicted of conspiring to

distribute more than 500grams of cocaine for which he was

convicted and sentenced to life imprisonment. The facts

underlying his conviction and supporting his sentence have been

thoroughly reviewed in past Orders of this Court and in decisions

by the Court of Appeals. Nothing is to be gained by trying to

reword those findings again.

1997 which related to petitioner’s

Court wrote:

In a Memorandum of decision and Order dated November 20,

In the present matter, there was substantial

relevant evidence introduced from which a jury

could reasonably find the defendant guilty beyond

a reasonable doubt.

Two co-conspirators, Nicole Lamb and

Helen Jackson, testified about their participation in

the conspiracy. Lamb testified regarding her

participation with the defendant in drug

distribution wherein she made deliveries, turned

over money, and was paid by defendant.’ / Helen

Jackson testified that the defendant paid her to

store drugs for him in her home and that the day

before her house was raided by agents, the

defendant had brought cocaine to her home to be

stored for later distribution. She also indicated that

defendant instructed her to keep a ledger of the

cocaine acquired from him and the person(s) to

whom she was directed to give cocaine.’ / The

ledger showed the days defendant came to

Jackson’s house and the amount of drugs he left on

those occasions.*/ Although certainly not required

to do so, defendant offered no affirmative evidence

to rebut the government’s case. Clearly such

evidence supports the jury’s verdict that defendant

had been proven guilty of participating in a

conspiracy beyond a reasonable doubt.

motion for a new trial, this

*/She also testified about her knowledge of the defendant’s

participation in drug transactions with her mother, Ruby Lamb.

*/That ledger was introduced into evidence.

‘/The amounts left at the house, e.g. 1/8th, 1/4th and 1/2 ounces,

correspond to the amounts seized by the agents in the raid on her home. A

laboratory examination revealed the fingerprint of the defendant on at least one

of the seized bags of cocaine.

(Rec. 121, pp. 4-5)(footnotes in original). With regard to the

amount of drugs attributable to the defendant, this Court in the

lengthy Sentencing Memorandum and Order dated July 27, 1998

wrote:

In the present matter, as indicated, the

government has indicated that the defendant is

responsible for approximately 111 kilograms of

cocaine for the period between the Summer of

1990 and September of 1991 together with 1.6

kilograms of marijuana, 262 grams of cocaine and

44.6 grams of heroin seized from his residence. */

‘/ Those were the figures given to the probation office

which it used to calculate the offense level. Subsequent to the most

recent hearing, however, the govern has indicated that defendant

is responsible for distributing at least 607 kilograms of cocaine

based upon Ruby Lamb’s testimony about her trips with defendant

to Florida to purchase cocaine. As the government argued in its

most recent brief, Ruby Lamb indicated that between 1989 and

1992, she traveled on thirty occasions with defendant to south

Florida to purchase cocaine and that "on each trip the defendant

would purchase between 15 and 20 kilograms of cocaine." The

government then indicates that "for sentencing purposes the

government would split the difference between these two numbers

for an average of 17.5 kilograms of cocaine per each trip."

Because Lamb testified that on one trip they purchased 100

kilograms, the total amount of cocaine is 607 kilograms (17.5

kilograms x 29 trips = 507 kilograms + 100 kilograms = 607

kilograms). The government further asserts that the amount of

cocaine distributed by the defendant during 1990 and April

1991-about 108 kilograms—in a part of the 607 total kilograms

purchased on the trips with Ruby Lamb.

Defendant, on the other hand, in his response to the

presentence report and in a brief to this Court has

indicated that, "on the generous side" he should be

attributed 3.5 kilograms.*/ Under the government’s

calculation, the base offense level would be thirty-

six: under defendant’s calculation, the base offense

level would be at the demarcation line between

levels 28 and 30.

In this Court’s view, conservatively,

defendant is responsible for delivering in excess of

150 kilograms. That calculation is based upon the

following.

Defendant sold 1/8 ounce quantities of

cocaine to confidential informants on May 15,

1991, June 6, June 7, June 13, June 26, Juiy 2, July

19, and September 3, 1991. In his letter to the

probation office in response to the presentence

report, the defendant has acknowledged that "the

undercover buys by the informants...could form a

reliable basis for determining the drug quantity in

this case" and he has not subsequently argued

otherwise. Those undercover buys total one ounce

(8 x 1/8 oz.).

Additionally, the Court finds that the

preponderance of the evidence shows that

defendant was responsible for at least 21.26

kilograms of cocaine given to Ruby Lamb, Helen

Jackson and Nicole Lamb for the period of the

conspiracy and a brief time thereafter.

*/ Defendant in his objection to the presentence report indicated that

"the undercover buys by the informants, the amount of drugs estimated in the

ledger, the amount of drugs seized in the raids, and the one statement by Ms.

Lamb could form a reliable basis for determining the drug quantity in this case.

Using that information, the drug quantity would be approximately 3.5

kilograms—on the generous side."

That calculation, which is undoubtedly quite

conservative, is based on his delivering, once-a-

week, a load containing 10 one-ounce, 10 1/2-

ounce, 10 1/4-ounce, and 10 1/8-ounce bags to

those individuals over 40 weeks. That amount is

wholly supported by the following.

In statement to officers investigating this

matter, Helen Jackson indicated that defendant

brought the following to her home for storage:

I kept WHITT’s drugs at my house

from the end of 1990 through

September 1991, and recall that

WHITT delivered approximately

one bag of drugs per week at my

house. The drugs delivered

contained the following

approximately [sic] amounts of

cocaine; 10 to 30 ounce bags, 10 to

30 half-ounce bags, 10 to 30

quarter-ounce bags, and 10 to 30

one-eighth ounce bags.

Additionally, during the sentencing hearing, Helen

Jackson testified that approximately once a week

from the end of 1990 until "Wwe got busted"

(September 5, 1991), defendant would bring by

"30 halves, 30 quarters, 30 eightballs" to her house.

Thus, by her testimony, defendant for at least an

eighth month period brought to her house weekly,

anywhere from ten to thirty ounce, half-ounce,

quarter ounce and eight ounce bags.

In a statement which she confirmed at the

sentencing hearing, Nicole Lamb spoke to both her

own, her mother’s (Ruby Lamb’s) and her aunt’s

Helen Jackson’s dealings with the defendant:

SAM WHITT had been supplying

my mother with bags of drugs

during 1989, but I do not know the

amount. WHITT averaged

providing three to four bags of

drugs per week to my mother from

1990 through April 1991. A typical

bag contained the following

amounts of cocaine: 10-one ounce

containers, 10-one-half ounce

containers, 10-quarter ounce

containers and 10-one-eighth ounce

containers. From approximately

May 1991 through September

1991, WHITT provided the above

approximate amounts to my Aunt,

HELEN JACKSON.

* * ok * * ox *

In the Summer of 1990, WHITT

brought over a kilo brick size of

cocaine to my mother’s house and

broke it up in the following

amounts: Ounces, half ounces,

quarter ounces, and one-eighth

ounces. He then placed them in

plastic bags. This occurred in my

presence.

$e ¢ 2 & ee Ss

In the Fall of 1992, I started

working for WHITT again, selling

cocaine to his customers. | did this

for approximately two months and

made approximately $100 per day.

I conducted the drug deals the same

way as before except that I kept the

drugs at my house during this time.

WHITT also’ provided the

approximate same amount of drugs

as before. After two months, |

decided that I did not want to be

involved with drugs and stopped

selling them for WHITT.

Thus, Nicole Lamb’s statement indicates that

either her mother, or her aunt would receive (on a

thrice weekly basis) 10-one ounce containers, 10-

one-half ounce containers, 10-quarter ounce

containers and 10-one-eighth ounce containers and

that later she received the same amount in lieu of

her aunt or mother.’/

Having concluded that defendant was

responsible for 10 one-ounce, 10 1/2-ounce, 10

1/4-ounce, and 10 1/8-ounce bags per week during

this period, that amounts to 18.75 ounces per week.

’/ Both the drug ledger and Ruby Lamb’s testimony generally support

such amounts. Ruby Lamb testified at the sentencing hearing that when

defendant would bring drugs to her or her sister’s (Helen Jackson’s) house, it

would be in quantities of “eight balls, quarters and half ounces." She also

indicated that the amouonts of drugs supplied by defendant yielded from $7,000

to $8,000 a day. A review of the ledger which accounted for deliveries from the

end of June to the beginning of November indicates that "Sam" or "Jake" (which

Helen Jackson indicated that defendant was also known as) came by on at least

four times (6/27/91 "30 1/2, 30 qt. & 30 8b"; 7/6/91 "12 qt., 10 1/2 & 16 8b";

7/28/91 "16 1/2, 16 qt. & 16 ob"; 8/10/91 "30, 30, 30). Although on cross-

examination during the sentencing hearing Helen Jackson conceded that the

drug ledger accounted for the times that defendant came by, during trial she

indicated that he had come by the day before the raid with a new load but that

for some reason she did not note that in the ledger. Further, while the ledger

contains entry of smaller amounts generally followed by names or initials, there

are other quite large amounts, with no namese next to them for which no

explanation has been given (e.g. 6/3091 "19 1/2, 25 qt, 23 8ball, 3R"). The

discrepancies do noSt, in this Court’s view, support the conclusion that the

preponderance of the evidence would show a lesser amount.

Given (at a minimum) th eight months from

January until August of 1991 (when Helen Jackson

or Ruby Lamb were storing the drugs) coupled

with the two months in the Fall of 1992 (when

Nicole Lamb indicated she resumed working for a

brief stint for the defendant) and assuming four

weeks per month, that totals 40 weeks. For that

period, therefore, defendant is conservatively

responsible for approximately 21.2 kilograms. °/

Additionally, defendant is responsible for the

amount seized in the raid. Thus to the above sums,

must be added 44.6 grams of heroin, along with 1.6

kilograms of marijuana and 262 grams of cocaine

which converts to total approximately 21,5

kilograms of cocaine.

Actually, this amount of cocaine, although

it is supported by a preponderance of the evidence

is probably far less than that actually involved

during this period. As indicated, Helen Jackson

indicated in her statement that defendant would

bring by 10 to 30 ounce, half-ounce, quarter ounce

and eighth ounce bags. Nicole Lamb indicated that

the 10 ounce, half-ounce, quarter ounce, and ei ghth

ounce bags were brought thrice weekly. Moreover,

it does not account for the tar heroin purchased in

Los Angeles or the tar heroin which Nicole Lamb

indicated in her statement that she sold.

*/ That calculation is based on the following. Forty weeks times 18.75

ounces equals 750 ounces. There are approximately 28.35 grams in an ounce

and approximately 35 ounces in a kilogram. Hence for forty weeks at 18.75

ounces per week, defendant was responsible for approximately 21.2 kilograms

(18.75 x 40=750 x 28.35=21,262/1000=2 1.2 or 18.75/35.25=53, 53 x 40=21 .2).

That figure, however, only takes into

account the actual charged period of the conspiracy

and a two month period when Nicole Lamb

resumed working for defendant after the raid on

Lafayette Street. It does not, however, account for

other relevant conduct.

* + * * * * *

Ruby Lamb testified that she traveled to

Florida with Sam Whitt on approximately 30

occasions from 1989 to 1991 to purchase cocaine.

Generally, they would purchase 15 to 20 kilos at

$18,500 per kilo. °/ She also testified that she went

with defendant to Los Angeles on five occasions in

1990 to purchase 10 to 15 balls of black tar heroin

from Mary Evans. This court believes Ruby

Lamb’s testimony in these regards.

The Court is not unmindful that some of

Ruby Lamb’s testimony was shown to be incorrect.

'°/ For example, she testified about sending back

100 kilogram via UPS. That amount (assuming 2.2

pounds per kilo) would weigh way above the limits

that UPS would ship at that time. Nevertheless, the

Court finds that she was attempting to be forthright

and the Court has no doubts that she did in fact

travel with defendant on numerous occasions in

1989, 1990 and early 1991 to purchase large sums

of cocaine with the defendant and did, on a handful

of occasions, travel with him to Los Angeles to

purchase tar heroin.

9/ The money would be shipped down ahead of time to defendant’s uncle Sam

Hatch.

'°/ The Court is also fully cognizant that in 1991 Ruby Lamb suffered a nervous

breakdown which she attributed to friction with the defendant. This Court does

not find that fact as negatively affecting her credibility.

10

Even given defendant every benefit of the doubt

that amount was in excess of 150 kilograms.

That defendant was dealing in cocaine in

such a large amount is further borne out by other

evidence which suggests that he had the financial

wherewithal to purchase kilo quantities on a

regular basis. For example, there is the matter of a

traffic stop in Florida in which Lavon Chandler

and Fred Starkes are stopped and some $340,000

is found in the trunk of the car. There is no doubt

in this Court’s view that that money was the

defendants. There is also the matter of the time that

defendant along with Ruby Lamb were stopped at

the Miami airport and $119,000 was found: the

reason for carrying such a large sum has yet to be

credibly explained. ''/

Although defendant argues that he should

not be held accountable for any conduct other than

that for which he was convicted, this Court is of

the view that there is a sufficient link between the

transactions to which Ruby Lamb referred and the

count of conviction...

From all indications, the trips about which

Ruby Lamb testified were ongoing event and

occurred right up until at least the beginning of

1991. That is, there is at least somewhat of a

temporal connection.

* * * * * * *

Further, there is a similarity of conduct and

regularity. Helen Jackson and the two Lambs

testified about receiving a significant amount of

cocaine on a weekly basis from the defendant and

a lessor amount of heroin.

''/ Those episodes are discussed in detail in the section titled "Enhancement for

Role in the Offense,” infra.

11

Ruby Lamb’s_testimony explains the basis for

defendant’s possession of such narcotics.

In sum, with respect to the amount of drugs

attributable to the defendant, this Court is of the

view that defendant was responsible for

distributing in excess of 150 kilograms of cocaine

(let along whatever the amount of heroin) which,

for purposes of the sentencing guidelines is all that

really matters since the guidelines top off at that

level. As such, his base offense level is 38.

(Rec. 133, pp.6-14)(footnotes in original, internal legal discussions

omitted).

The foregoing facts set forth the basis for a discussion of

the legal arguments raised by the petitioner with the exception of

one issue. In his petition, the petitioner alleges that he was denied

"the right to conflict free representation" and that this Court failed

to make an adequate inquiry into the alleged conflict.

The record relating to the "conflict" shows that counsel for

the government brought to the attention of the Court a potential

conflict of interest concerning the employment of former Federal

of Bureau Investigator John McGauley by defendant's trial

attorney. McGauley, who was the case agent in defendant’s case,

had been hired as a private investigator by defendant's counsel in

United States v. Martz, a case which was then being prosecuted by

government’s counsel in defendant’s case and in no way involved

or in any way implicated present defendant. Nevertheless, when

the potential conflict was brought to the attention of the Court, the

Court held a hearing and addressed defendant along with his

counsel and counsel for the government and conclude that there

was no conflict. '?/

'2/ Excerpts from the colloquy are set forth in this Memorandum of

Decision and Order in subsection IV, infra.

12

Application of Law

In his petition; petitioner raises five claims of error. First,

he asserts that there was a per se violation of his right to counsel

secured by the Sixth Amendment to the Constitution of the United

States. His second and third claims assert a lack of effective

assistance of counsel on direct appeal. Fourth, petitioner contends

that he was constructively denied the assistance of counsel due to

a conflict of interest which was not waived by defendant before

this Court. Fifth, defendant asserts that counsel was ineffective in

failing to acquire an independent fingerprint examiner. After a

review of the general standards which govern post-conviction

collateral relief claims, and in particular allegations of ineffective

assistance of counsel, this Court will address petitioner’s claims

in turn under separate sub-headings.

A § 2255 motion must be granted when a defendant’s

"sentence was imposed in violation of the Constitution or laws of

the United States." 28 U.S.C. § 2255. It is well-established,

however, that a § 2255 motion is not a substitute for direct appeal.

See Barnickel v. United States, 113 F.3d 704, 706 (7" Cir. 1997).

Thus, before a petitioner can obtain relief under § 2255, he must

satisfy the requirements for obtaining collateral relief, namely that

the alleged errors are "jurisdictional, constitutional, or [are]

fundamental defect[s] which inherently result[] in a complete

miscarriage of justice." Oliver v. United States, 961 F.2d 1339,

1341 (7" Cir.1992).

Where a constitutional challenge is not raised on direct appeal, for

such a challenge to be properly brought under a § 2255

proceeding, petitioner must make a showing of good cause for,

and prejudice from, the failure to raise the issues on direct appeal.

Theodorou v. United States, 887 F.2d 1336, 1339 (7" Cir. 1989).

13 /

Whenever any claim of constitutionally inadequate

representation by counsel is raised by a criminal defendant (as is

the case here with respect to a couple of petitioner’s claims),

Strickland v. Washington, 466 U.S. 668 (1984) provides the

seminal ruling and analysis. Under Strickland, counsel is

ineffective in a constitutional sense only when the representation

was so deficient that it "fell below an objective standard of

reasonableness" and was prejudicial. Strickland, 466 U.S. at 687-

88. In assessing claims of ineffective assistance of counsel, a

strong presumption exists in the attorney’s favor and that counsel

gave "reasonably professional assistance." Strickland v. United

States, 466 U.S. 668, 689, 104 S.Ct. 2052 (1984). Further, under

the stringent test set forth in Strickland, a court must examine a

claim of ineffective assistance of counsel under the totality of the

circumstances, and in order to prevail, a defendant’s claim has to

survive a two prong test:

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment. Second, the

defendant must show that the deficient

performance prejudiced the defense.

13 The dismissal of a § 2255 petition without holding an evidentiary hearing is

appropriate, if not required, when "the motion and the files and records of the

case conclusively show that the prison is entitled to no relief..." 28 U.S.C. §

2255; Olmstead v. United States, 55 F.3d 316, 318 (7" Cir. 1995); Dugan v.

United States, 18 F.3d 460, 464 (7" Cir.1994); Ebbole v United States, 8 F.3d

530, 534 (7" Cir. 1993). That is the case here.

14

This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.

Strickland v. Washington, 466 U.S. at 687. Because one must

show both deficient performance and prejudice to prevail on an

ineffective assistance of counsel claim, a failure to show one or the

other will defeat the claim.

I. Constructive Denial of Counsel

In his first claim, petitioner asserts a Sixth Amendment

violation in that there was a per se violation of his right to counsel.

His argument here is that he was constructively denied the

assistance of counsel pretrial and during trial because of "official

interference" and that said interference caused a conflict of

interest. The upshot of the argument on this score is that at the

time of petitioner’s trial the circuit courts had consistently held

that drug quantities under 21 U.S.C. § 841 were a sentencing

factor to be determined by a judge by a preponderance of evidence

after a jury had determined defendant’s underlying guilty.

Petitioner then asserts that the Supreme Court’s opinion in

Apprendi changed all that. Since his trial was held before the

decision in Apprendi, petitioner claims that his counsel was

constrained from raising the drug quantity issue based not only on

prevailing case law but also under "American Bar Association

Standards and the like which govern the conduct of professional

lawyers" by "proscribing frivolous defenses/arguments...". (Rec.

166, p.7 fn. 6). He therefore was constructively denied counsel

inasmuch as "petitioner (and like defendants) are entitled to, and

always should have been, the assistance of counsel at the critical

pretrial and trial stages of the proceedings for purposes of

defending against, challenging, and ‘adversarially testing’ drug

quantity and any evidence presented in support thereof by the

Government." (Rec. 159, p. 5(d), bold in original). This Court

cannot conclude that petitioner was constructively denied his Sixth

Amendment right to counsel.

A presumption of prejudice is warranted when a defendant

has been actually or constructively denied counsel at a critical

stage of his trial. United States v. Oliver, 118 F.3d

15

562, 565 (7" Cir. 1997). Generally, this occurs if counsel is

completely absent, or prevented form assisting at a critical point.

'47 Constructive denial of counsel exists in such cases because

counsel has "entirely failed[ed] to subject the prosecution’s case

to meaningful adversarial testing, "Cronic, 466 U.S. at 659, 104

S.Ct. 2039, and so prejudice is presumed. '”/

"It is also possible to find a structural error where

‘although counsel is available to assist the accused during trial, the

likelihood that any lawyer, even a fully competent one, could

provide effective assistance is so small that a presumption of

prejudice is appropriate without inquiry in the actual conduct of

the trial.’" United States v. Chiappetta, 289 F.3d 995, 1000 (7"

Cir. 2002)(quoting, Cronic, at 659-60, 104 S.Ct. 2039). "Yet there

are limitations to the application of this principle." Jd. "Indeed this

court [the Seventh Circuit] has opined that the structural rule may

be confined to the complete denial of counsel or its equivalent."

Id. Here, counsel’s supposed inability

'4/ That is, cases finding an inherently prejudicial constructive absence

of counsel mostly involve egregious conduct that is the functional equivalent of

actual absence of counsel. See,)e.g., Hull v. Kyler, 190 F.3d 88, 112 (3d Cir.

1999) (prejudice presumed where counsel conceded that defendant was

competent to stand trial despite strong evidence to the contrary); Tucker v. Day,

969 F.2d 155, 159 (5" Cir. 1992) (failure of defendant’s attorney to provide any

assistance at resentencing hearing was constructive denial of right to counsel0;

Martin v. Rose, 744 F. 2d 1245, 1250-51 (6" Cir. 1984) (prejudice presumed

where counsel was present but refused to participate in defendant’s trial).

'5/ See. United States v. Morrison, 946 F.2d 484, 500 n. 3 (7"" Cir.

1991) (prejudice not presumed despite counsel’s failure to pursue and present

an alibi defense, where he did cross-examine witnesses, impeaching them based

on their prior testimony and their potential for bias); Smith v. United States, 182

F. 3de 1023, 1026 (8 Cir. 1999) (an ineffectiveness claim alleging "a

deficiency in attorney performance" is subject to the general requirement that

the defendant affirmatively prove prejudice); Cooks v. Ward, 165 F. 3d 1283,

1296 (10" Cir. 1998) (despite counsel’s failures at trial, prejudice could not be

presumed where he was present in the courtroom, conducted limited cross-

examination, made objections, and gave a closing argument); Houchin v.

Zavaras, 107 F. 3d 1465, 1471 (10" Cir. 1997)(prejudice could not be

presumed despite trial errors of counsel).

16

to argue pre-Apprendi that the amount of drugs should be

determined by the jury beyond a reasonable doubt hardly rises to

that level.

The Supreme Court in Apprendi v. New Jersey, 530 U.S.

466 (2000), held that a jury must decide the amount of drugs

involved in section 841-typw case beyond a reasonable doubt if

the sentence to be imposed is going to exceed a default statutory

mandatory cap. “Before Apprendi, only those elements contained

in § 841 (a) needed to be proven beyond a reasonable doubt; the

[sentencing] factors in 841(b) could be found by a preponderance

of the evidence [,]” United States v. Martinez, 301 F.3d 860, 864

(7" Cir. 2002) and this was generally done, as here, by the trial

court at the time of, or in anticipation of, sentencing.

Notwithstanding, the general consensus pre-Apprendi'*/

'6/ Even post-Apprendi, the Seventh Circuit has reiterated its long-held

position that drug type and quantities are not elements of a section 84 | offense:

In reading § 841, it is clear that drug type and quantity are not

elements of the offense. Generally, when reading a statute, ‘we can presume

that its principal paragraph defines a single crime and its subsections identify

sentencing factors.’ Harris, 122 S.Ct. At 2412. Accordingly, we have

repeatedly held that § 841's elements are contained in subsection (a);

subsection (b) contains the considerations which determine the maximum and

minimum sentence. See United States v. Bjorkman, 270 F.3d 482, 491-92 (7"

Cir.2001), cert. denied, —U.S. —, 122 S.Ct. 2290, 152 L.Ed.2d 1049 (2002);

Brough, 243 F.3d at 1079; see also United States v. Duvall, 272 F.3d 825, 830

(7"" Cir.2001). Therefore, while it is clear knowledge is an element of § 841,

all that its principal paragraph, §84 1 (a), requires is that a defendant knowingly

possess a controlled substance. Drug type is not specified and therefore is not

an element of § 841 (a). Furthermore, all that § 841(b) requires is that the

offense involve certain types and quantities, not that the defendant know the

type and quantity. Accordingly, a defendant may be convicted under

§841(a)(1) even if he does not know the type or quantity of the controlled

substance. See Bjorkman, 270 F.3d at 490-91; Brough, 243 F.3d at 1080;

Duvall, 272 F.3d at 830.

United States v. Martinez, 301 F.3d 860, 865 97" Cir. 2002). That said, the

Seventh Circuit has also pointed out “‘the possible or even likely view of the

[Supreme] Court that Apprendi does change the traditional interpretation that

drug quantity is always a sentencing factor...””. United States v. Westmoreland,

240 F.3d 618, 632 (7" Cir. 2001), quoting, United States v. Angle, 230 F.3d

113, 123 (4™ Cir. 2000).

17

that the amount of drugs involved was to be determined by the

court as a matter of sentencing, counsel certainly was not

precluded from raising the argument that the amount of drugs

should be submitted to the jury.'’ As the Seventh Circuit has

indicated, “the foundation for Apprendi was laid long before

1992" and in fact, “[o]ther defendants had been making the

Apprendi-like arguments ever since the Sentencing Guidelines

came into being, and in McMillan v. Pennsylvania, 477 U.S. 79,

106 §.Ct. 2411, 91 L.Ed.2d 67 (1986), the Court addressed the

merits of an argument along similar lines.” United States v. Smith,

41 F.3d 546,548 (7" Cir. 2001). Petitioner “could have invoked

the themes in McMillan, and for that matter Jn re Winship, 397

U.S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970) just as the

Justices themselves did in Apprendi.” Id.

Quite obviousiy then, counsel was not constrained from

rasing an Apprendi-like argument on behalf of petitioner pretrial

or during trial-circuit precedent to the contrary notwithstanding.

Nor would the rules of professional conduct preclude such an

argument. The rules of Professional Conduct which governs the

practice of Indiana lawyers specifically allows for counsel to made

“a good faith argument for an extension, modification or reversal

of existing law” and, indeed in even stronger language provides

that a lawyer representing a defendant in a criminal proceeding

“may...so defend the proceeding as to require that every element

of the case be established.” Rule 3.1.'* Those

'7/ The Court recognizes petitioner’s argument to the effect that

counsel was impeded from making the challenge. See, Rec. 166, p. 15 &

fn.8. What this Court cannot do, though petitioner does, is equate a

theoretically potential impediment with the requisite “complete denial of

counsel or its equivalent” threshold for a constructive denial of counsel

claim.

'8/ As the comment to that rule points out, sometimes there is the

“potential for change” as “the law is not always clear and never is static.”

18

Rules of Professional Conduct provide the standards of conduct

for counsel practicing in this Court. See, N.D. Ind. L.R. 83.5(f).'°/

Quite clearly then, the professional conduct rules were no

impediment to making an Apprendi-type claim.

Neither precedent nor conduct rules prohibited counsel

from raising the claim at trial that the amount of drugs should

have been determined by the jury. That being so, petitioner’s

claim of the constructive denial of counsel “by official

interference” must be rejected.?°/

II. Ineffectiveness of Counsel on Direct Appeal

Petitioner claims that counsel was ineffective on direct

appeal. This was so, petitioner asserts, because counsel conceded

that petitioner was responsible for distributing 3.5 kilograms of

cocaine.

As indicated in the prefatory statement of governing law,

'°/ The Federal Rules of Criminal Procedure specifically provide for

a district court to “make and amend rules governing its practice.”F.R.Crim.P.

57(a)(1).

**/ Insofar as “[p]etitioner has defined and characterized the nature of

the ‘official interference’ as Congress’ intent to unconstitutionally remove the

assessment of facts (drug quantity pursuant to § 841) from the jury” that

characterization too must be rejected: Apprendi and Nance do not establish that

anything in §841 is unconstitutional or require its severance. If Congress had

specified that only judges may make the findings required by § 841(b), or that

these findings must be made by preponderance of the evidence, then §

841 would create a constitutional problem. But the statute does not say who

makes the findings or which party bears what burden of persuasion. Instead the

law attaches effects to facts, leaving it to the judiciary to sort out who

determines the facts, under what burden. It makes no constitutional difference

whether a single subsection covers both elements and penalties, whether these

are divided across multiple subsections (as § 841 does), or even whether they

are scattered across multiple statutes (see 18 U.S.C. §§924(a), 1963). Apprendi

holds that the due process clauses of the fifth and fourteenth amendments make

the jury the right decision maker (unless the defendant elects a bench trial), and

the reasonable-doubt standard the proper burden, when a fact raises the

maximum lawful punishment. How statutes are drafted, or implemented, to

fulfil that requirement is subject to which the Constitution does not speak.

United States v. Brough, 243 F.3d 1078, 1079 (7" Cir. 2001).

19

0 cael

aclaim of ineffective assistance of counsel requires a showing that

counsels performance fell below an objective standard of

reasonableness and that but for counsel’s errors the result of the

proceeding would have been different-a tough row to hoe given

the deference afforded the strategic choices of counsel. To be sure,

ineffective assistance can be claimed against appellate counsel and

“(g]enerally speaking, the performance of appellant counsel is

assessed using the same standards applied to trial counsel under

Strickland....,” including the “strong presumption that petitioner’s

counsel was constitutionally effective.” Mason v. Hanks, 97 F.3d

887, 892 (7" Cir. 1996).

Importantly, “Strickland builds in an element of deference

to counsel’s choices in conducting litigation...”. Holman v.

Gilmore, 126 F.3d 876,881 (7" Cir. 1997). Likewise, the “process

of ‘winnowing out weaker arguments on appeal and focusing on

‘those more likely to prevail, far from being evidence of

incompetence, is the hallmark of effective appellate advocacy.”

Smith v. Murray, 106 S.Ct. 2661, 2667 (1986) quoting, Jones v.

Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3312-13 (1983).

Hence, “strategic choices made after thorough investigation of the

law and facts relevant to the plausible options are virtually

unchallengeable....”. Strickland, at 690-91, 104 S.Ct. at 2066.

This Court can hardly fault counsel, let alone find him

ineffective, '/ for conceding to 3.5 kilograms. Evidence to support

that amount was overwhelming—almost to the extent of being a

given. It is to be recalled that this Court found petitioner

responsible for more than 150 kilograms of cocaine. Leaving aside

testimony which showed the Ruby Lamb was supplied with 108

kilograms of cocaine, testimony from Nicole Lamb established

that petitioner dealt at least in one kilogram of cocaine and the

drug ledger demonstrated that petitioner was responsible for

another three kilograms Faced with such findings it is quite clear

21/ In his filings, petitioner asserts that his claim should be addressed

under the Strickland standard as well as the prejudice per se standard of

Cronic. This Court finds no basis to make ans analysis under Cronic since, like

in the last section, there is no support for the proposition that counsel was

absent, his actions failed to subject the prosecution’s case to the adversarial

process, or the functional equivalent of either.

20

that the appellate counsel was attempting to limit the drugs

attributed to defendant and thereby attempt to limit his exposure

to prison time. It was a strategic attempt and, though it failed,

counsel cannot be deemed ineffective.

In his briefs, petitioner asserts that counsel was

nevertheless incompetent by admitting to the 3.5 kilograms

without petitioner’s approval because doing so was a mistake. The

theory is that by admitting to that amount, counsel was admitting

that petitioner was required to be sentenced at a higher statutory

range than the up-to-twenty years provision of 21 U.S.C. § 841

(b)(1)(A).”/

This court can hardly classify counsel’s action as mistake.

A trial court has discretion to sentence anywhere within the

guideline range. See, United States v. Byrd, 263 F.3d 705, 707 (7"

Cir. 2001). Here, as indicated, the amount of 3.5 kilograms was

well-established and it was therefore prudent for counsel to admit

to that amount. The strategy was obvious-with a far lower amount

(3.5 kilograms as opposed to 150 kilograms) the possibility of

receiving a lower sentence within the guideline range would be

much greater. Hence, counsel certainly was not incompetent in

making the concession that he did.

Ill. Ineffectiveness of Counsel in Failing to Make Official

Interference Argument

Petitioner’s third claims is really an off-shoot of his first

claim in that he asserts counsel was incompetent on direct appeal

”/ Petitioner also suggests that his counsel was mistaken by pointing

to the following passage from the Seventh Circuit’s February 7, 2001 Order:

Whitt’s appellate lawyer seems to be under the impression that

Apprendi requires not just 500 grams, but the whole 150 kilograms, to be

proved to the jury beyond a reasonable doubt. That is not so. All Apprendi

governs is the amount that affects statutory maximum sentences.

That passage and the language following it does not show that counsel was

mistaken in regard to the threshold amount required to increase the statutory

range. All it shows is that counsel was arguing that since the finding by the

Court was that petitioner distributed 150 kilograms of cocaine, the jury would

have to determine the same amount-a proposition for at least 500 grams to

bump up the statutory range, something which incidentally the Court of

Appeals said the jury was “bound to find.”

21

because counsel failed to argue that constructive denial of the

assistance of counsel. This Court must reject that argument under

the same analysis as set forth with regard to claim one.

This Court would also point out that on direct appeal

counsel argued that the Indictment was constitutionally defective

because it did not specifically allege the type and quantity of

controlled substance. The Seventh Circuit addressed that

argument writing that “because such argument has specifically

been rejected on numerous occasions by this court...we decline to

consider this issue any further.” United States v. Whitt, 211 F.3d

| 1022, 1026 (7 Cir. 2000)(internal citations omitted).

Nevertheless, by raising the argument, counsel was able to

preserve the issue for appeal, resulting in the granting of certiorari

by the Supreme Court, the judgement being vacated, and the case

being remanded to the Seventh Circuit for further consideration.

United States v. Whitt, 121 F.3d 423 (2000). Counsel on appeal

can hardly be said to have been ineffective within the meaning of

Strickland.

IV. Alleged Conflict of Interest

In his fourth claim, petitioner asserts that there was a

conflict of interest on the part of his trial counsel which petitioner

did not waive. As indicated in the recitation of facts, the alleged

conflict of interest related to defense counsel’s employment of an

ex-FBI agent (who had been the primary investigator in

defendant’s case) as a private investigator in a wholly unrelated

case. Upon being informed of this matter by government’s

counsel,

the Court held a hearing during which the following took place:

MR. MILLER [counsel for the government]: Your honor, there

was a matter the Government wanted to take up, we mentioned it

the other day in the telephone conference, and | just wanted to

make sure a record here in open court in regard to what the

Government raised as a potential conflict of interest and have the

Court address Mr. Whitt as to his pleasure in that regard.

THE COURT: You’re referring to the matter of Mr. Swanson

[defendant’s counsel] having employed in some other case the

22

former FBI agent who in fact was the agent in charge in this case

and who at least indicated at that time you intend to call as a

witness?

MR. MILLER: Yes, sir.

THE COURT: Very well.

MR. MILLER: If I, just for the record, your honor, the

government’s concern is there may be a conflict of interest or an

appearance of conflict of interest in this regard. A, number one,

that former Agent McGauley is now a witness for the government

and we are concerned that should the Government prevail in some

post-trial proceeding, an allegation would be made that somehow

confidences may have been shared.

The second is that because Agent McGauley—former Special

Agent McGauley is currently employed by Mr. Swanson, that on

cross examination Mr. Swanson may not cross examine as

vigorously as he would have had that relationship not existed.

THE COURT: Well, I think the point is well taken that you should

have on the record Mr. Whitt’s acknowledgment of this

information as an indication of whether or not he finds anything

wrong with that.

Mr. Whitt, do you understand the point Mr. Miller has raised?

THE DEFENDANT: Yeah.

THE COURT: Do you understand Special Agent McGauley who

is now retired from the FBI, was the agent in charge of this case

when it was investigated?

THE DEFENDANT: Yes.

THE COURT: Since he is retired from the FBI, as I understand it,

he has started his own investigative agency and at least one case

in this court and perhaps others, Mr. Swanson can tell us that, Mr.

Swanson has engaged Mr. McGauley as a private investigator to

assist him in the preparation of those cases.

Do I accurately state the matter, Mr. Swanson?

MR. SWANSON: Yes, your honor, and going a little further if

you like. |

THE COURT: All right. Why don’t do you [sic] that.

MR. SWANSON: To further delineate the relationship. I have

indeed in United States versus Martz employed Agent McGauley.

He and I have discussed this particular case. I did not know that

23

PUBLISHER'S NOTE:

Page 24 _ is missing in original document.

Special Agent because in the past when we do these 2255's, these

are issue that come up.

THE COURT: Yes, and | take it that is clearly the case, Mr.

Swanson?

MR. SWANSON: This is clearly the case. He knows more about

it than I do.**/

(Transcript, 7/18/1996, pp. 3-8). Quite clearly the Court

thoroughly addressed the potential conflict of interest.

In his petition, petitioner disputes that he had discussed the

matter with his counsel the Friday before the colloquy in Court as

suggested in the above excerpt and also assert that when “the

Court inquired of the petitioner whether he was satisfied with Mr.

Swanson’ representations notwithstanding: Petitioner adamantly

stated ‘no’ he was not .” (Receive. 169, p. 6a). The Court rejects

the former unadorned assertion and, as for the latter, finds it to be

belied when the colloquy is read as a whole.

As for the petitioner’s claim that he did not discuss the

matter with counsel the Friday before, if that were so he was free

to make assertion in open Court when the matter was being

23 / Petitioner reads this last line as suggesting that Mr. Swanson, his

counsel, was indicating that former-FBI agent McGauley knew more about the

underlying prosecution than did defense counsel. That clearly is a

mischaracterization. The statement “(h]e knows more about it than | do” is

either in response to government’s counsel assertion that conflict of interest

issues often arise in the context of collateral 2255 proceedings ro is a statement

that government counsel knew from former-Agent McGauley that no

confidences had been shared by defense counsel.

25

discussed in his presence. That he did not do so suggests that he

did in fact talk with his counsel about the matter prior to going to

Court that day. Besides, even if he did not talk with counsel about

the potential conflict prior ro the colloquy, the record make clear

that a pause in the proceedings was held so that petitioner could

talk about the matter at that point in time.

As for petitioner’s assertion that he adamantly stated he

was not satisfied with Mr. Swanson’s representation, that is a

mischaracterization of the question posed to him for he was being

asked only whether he thought in light of the conflict Mr.

Swanson could adequately carry out his function as defense

counsel. True, petitioner’s negative response to the questions

“[y]ou’ve had adequate opportunity discuss all of theses issues

with Mr. Swanson and you’re satisfied as far as you’re concerned

that there’s no conflict of interest with respect to Mr. Swanson’s

relationship with Agent McGauley?” could be read as suggesting

that petitioner was not satisfied that there was no conflict. It could

also be read quite differently in that the response “no” was in

regard to the portion of this Court’s questions “there’s no conflict

of interest with respect to Mr. Swanson’s relationship with Agent

McGauley” with the “no” meaning no conflict.

This latter reading is undoubtedly the correct one when the

colloquy is read as a whole. The question which elicited the

negative response came right after petitioner spoke with counsel

about the potential conflict and then informed the court “yeah, we

can go forward.” Moreover, the colloquy went on and defendant

never one voiced any suggestion that he had any problem with

defense counsel representing him even in spite of the potential

conflict.

That aside, petitioner has again failed to show prejudice.

Even without Agent McGauley’s testimony there was a plethora

of evidence to convict the defendant including the testimony of

26

Nicole Lamb, Helen Jackson and the drug Ledger. 7“/

V. Ineffectiveness of Counsel in Failing to Employ Fingerprint

Examiner

Petitioner’s final contention is that trial counsel was

ineffective in failing to retain an independent fingerprint

examiner. This argument related to government’s exhibit 7 which

was a baggie which had been found in Helen Jackson’s home after

it had been raided by drug agents. Government’s exhibit 7 was

admitted at trial and the government’s fingerprint expert testified

that defendant’s fingerprints had been found on the bag.

Prior to trial, counsel sought leave under the Criminal

Justice Act to retain a fingerprint expert. The request was granted.

However, an examiner was apparently no employed and no

independent evidence was presented by the defense about the

fingerprint on the baggie.

Petitioner contends that this was ineffectiveness on his

counsel’s behalf, particularly when on considers that the jury sent

out one note during trial and that note related to the fingerprint

evidence. In the Court’s view, however, petitioner places way too

much stock in the note from the jury.”°/

*4/Petitioner also claims that the Court erred in failing to conduct an

inquiry into an alleged conflict of interest which arose as a result of defendant’s

counsel having previously represented co-defendant Ruby Lamb in a previous

state court drug case. To say that this was underdeveloped at trial and now is

an overstatement. Although a court should hold a hearing when it becomes

aware a conflict of interest, the Court must be aware of the conflict for a court

cannot “be charged with a duty to keep track of the conflicts of every

practitioner appearing before it.” Berry v. United States, 293 F.3d 501, 504 (8"

Cir. 2002).

?*/The note from the jury read: “We have a questions [sic] about

the type of fingerprints (discernable, undiscernable [sic] or unidentifiable)

other than Samuel Whitts. Please clarify the issue of fingerprints found as in

regards to the evidence (Government exhibit 7).”

27

As indicated, for a claim of ineffectiveness to be

successful, petitioner must show that counsel’s performance was

deficient to the extent that he was not functioning as counsel

guaranteed by the Sixth Amendment and he must show that that

deficient performance prejudiced the defense because it was so

serious as to deprive defendant of a fair trial. Implicit in the

Strickland standard is that a good deal of deference must be given

to counsel’s choices in conducting litigation.

A review of the record relative to the fingerprint evidence

makes clear that counsel most likely undertook the strategy of not

engaging a fingerprint expert in favor of cross-examining the

expert put on by the government. That much is borne out by his

cross-examination of the government’s expert with the thrust of

the questions being that sandwich baggies were common items in

households throughout the country; that the examiner could not

tell when the prints were made on the baggie and hence could not

tell if it contained cocaine at the time petitioner touch it; and that

although there exemplars were given by Helen Jackson, the —

fingerprint examiner could not positively identify her prints on the

baggie.

The government surmises, and probably quite properly so,

that counsel strategically chose not to have a second comparison

made between the petitioners fingerprints and those found on the

baggie so as to not rick having a second expert confirm that the

prints were the petitioner’s. Yet even if that were not the case, the

Court cannot say that counsel was ineffective. As indicated

before, the government presented testimonial evidence that

petitioner was supplying cocaine to Nicole Lamb, Ruby Lamb,-

and Helen Jackson. After a two day trial, it took the jury less than

three and one-half hours to return a verdict of guilty. Given the

evidence, even had a finger print examiner been hired by defense

counsel, and even if he had testified that petitioner’s fingerprints

were not on the baggie, the outcome would undoubtedly have

been the same.

28

Conclusion

On the basis of the foregoing, the “Petition Under 28

U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a

Person in Federal Custody” which was filed by Samuel L. Whitt

on September 3, 2002 is DENIED.

February

SO ORDERED this _3rd_ day of January 2003.

s/William C. Lee

William C. Lee, Ehtef Judge

United States District Court

29