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U.S. v. ELI

September 5, 2002

UNITED STATES OF AMERICA,
V.
ALFRED ELI, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

  OPINION

Defendant Alfred Eli has filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. He contends that his court appointed counsel was constitutionally ineffective during the plea proceedings and at sentencing in this case. Defendant also has filed two motions raising issues based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). After the Court appointed new counsel for Mr. Eli, the parties appeared before the Court for an evidentiary hearing and for argument on defendant's motions. Upon consideration of the arguments raised by the parties in their briefs and at the hearing, the Court grants defendant's Section 2255 motion in part and denies it in part, and denies defendant's two Apprendi motions.

I. BACKGROUND

Defendant Alfred Eli was charged in a three count indictment with unlawful distribution of 50 grams or more of a mixture and substance containing a detectable amount of cocaine base, also known as crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The charges arose out of three undercover sales of what the government contends was crack cocaine on March 6, 1997 (Count One), March 13, 1997 (Count Two), and April 2, 1997 (Count Three). David Howard, a defense attorney who then was with the Office of the Federal Public Defender for the District of Columbia, represented Mr. Eli at the time of the plea and at sentencing. On December 12, 1997, the defendant entered a plea of guilty to Count One of the indictment pursuant to a written plea agreement. On April 2, 1998, the Court sentenced the defendant on Count One to 121 months in prison followed by a five year period of supervised release, the defendant having agreed pursuant to the plea agreement that he was accountable for at least 150 grams of cocaine base.*fn1 The government moved to dismiss the remaining counts of the indictment.

The defendant filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. After the Court appointed new counsel to assist him with his motion, Mr. Eli's new attorney then supplemented the Section 2255 motion and filed two motions raising arguments based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant contends that his former attorney was constitutionally ineffective because (1) he failed to contest at sentencing that the drugs he admitted selling were in fact crack cocaine within the meaning of the Sentencing Guidelines, and (2) he failed to file a notice of appeal on defendant's behalf. In his first Apprendi motion, defendant argues that if the Court orders a resentencing in this matter, Apprendi requires that at the re-sentencing the government must prove beyond a reasonable doubt that Mr. Eli sold crack cocaine, in his second motion, defendant argues that the Court should hold 21 U.S.C. § 841 unconstitutional based on Apprendi.

The parties appeared before the Court for a two-day hearing on defendant's motions. On the first day of the hearing, the Court heard testimony from the defendant, his prior counsel, and three experts (two for defendant, one for the government) on the issue of whether the drugs sold by the defendant were crack cocaine. On the second day, the Court heard argument from both counsel on all of defendant's motions.

II. DISCUSSION

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees a defendant in a criminal case the effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court announced the standard that a defendant must meet to prevail on an ineffective assistance of counsel claim:

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. 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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

Because a court must assume that there is a wide range of sound strategy that a constitutionally effective attorney might choose, it is up to the defendant to overcome a presumption that counsel acted reasonably and to demonstrate that the challenged action was not the result of sound strategy. See Strickland v. Washington, 466 U.S. at 689-90, 104 S.Ct. 2052. Furthermore, even if counsel's errors are substantial and objectively unreasonable, a defendant still must make an affirmative showing of prejudice. See id. at 692-93, 104 S.Ct. 2052. Under the Strickland test:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 694., 104 S.Ct. 2052

In the context of a plea, the Supreme Court has held that a defendant must show: (1) that counsel's advice was not within the range of competence demanded in criminal cases, and (2) that as a result of counsel's advice or conduct the defendant was prejudiced in that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, ...


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