The opinion of the court was delivered by: RICHEY
Before the Court are the defendant's Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255 and the government's Opposition thereto. The defendant was convicted of possessing with the intent to distribute five (5) grams or more of cocaine base, pursuant to 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On August 26, 1991, the Court sentenced the defendant to 108 months imprisonment. The defendant appealed his conviction to the United States Court of Appeals for the District of Columbia Circuit, which denied the appeal on August 27, 1993.
In the present Motion, the defendant argues that he was denied effective assistance of counsel in the sentencing phase of his criminal proceedings because his counsel failed to ensure that the government met its burden in establishing at sentencing by a preponderance of evidence that the cocaine he was arrested with was, in fact, "cocaine base," also known as "crack cocaine." Upon consideration of the defendants' Motion, the opposition thereto, the applicable law, the entire record herein, and for the reasons set forth below, the Court shall deny the defendant's Motion to Vacate, Set Aside, or Correct his Sentence.
I. The Defendant's § 2255 Motion to Vacate, Set Aside, or Correct His Sentence Must be Denied Because the Defendant Has Not Shown Cause Why His Claim Was Not Asserted At Sentencing or on Direct Appeal and Has Not Shown That Actual Prejudice Resulted From a Failure By the Government to Proffer Testimony At Sentencing That the Substance Possessed By the Defendant Was Cocaine Base.
When a defendant has failed to raise a claim at sentencing and on direct appeal, that claim is barred from collateral review on a 28 U.S.C. § 2255 petition unless the defendant demonstrates "cause" for his procedural default and "actual prejudice" from the alleged error on which the claim is based. See United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982) (applying "cause and actual prejudice" standard to § 2255 motion to vacate sentence based on defective jury instructions when defendant failed to raise objection at trial or on direct appeal); United States v. Kleinbart, 307 U.S. App. D.C. 136, 27 F.3d 586, 590 (D.C. Cir.) (same), cert. denied, 130 L. Ed. 2d 365, 115 S. Ct. 456 (1994); Garvin v. United States, 882 F. Supp. 68, 70 (S.D.N.Y. 1995) (applying "cause and actual prejudice" standard to collateral attack by the defendant of the term of his incarceration when defendant failed to raise issue on direct appeal).
A. The Defendant Has Not Shown Cause Why This Claim Was Not Raised at Sentencing or On Appeal.
The defendant argues that his § 2255 claim was not raised earlier in his criminal proceedings due to the error of his counsel. Attorney error short of ineffective assistance of counsel, however, "does not constitute cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 486, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). Therefore, to show such cause, the defendant must establish that he was deprived of his right to effective assistance of counsel. To do so, he must show: (1) that the performance of counsel was deficient, i.e., "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); and (2) that he was so prejudiced by the errors that there is a reasonable probability of a different outcome upon retrial. Id. at 694.
During the defendant's trial, the government elicited the testimony of Mr. Steven M. Demchuk, a forensic chemist with the U.S. Drug Enforcement Agency ("DEA"), who testified that the substance found on the defendant relating to Count I of the indictment -- the count on which the defendant was convicted -- was cocaine base, known on the street as "crack cocaine." In fact, Mr. Demchuk testified extensively as to the difference between the 35.55 grams of cocaine base, marked as Government's Exhibit 2, which the defendant was convicted of possessing and the 18.21 grams of cocaine hydrochloride, marked as Government's Exhibit 3, which the defendant was found not guilty of possessing with intent to distribute. The following colloquy occurred at the defendant's trial:
PROSECUTOR: ...What's the difference between the cocaine base, as you found in Government's Exhibit 2, and cocaine hydrochloride, as you found in Government's Exhibit 3?
PROSECUTOR: Now if I may summarize --
PROSECUTOR: Excuse me, Your ...