United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
This matter is before the court on defendant Verdale Handy's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 772). Defendant claims that his appellate attorney provided ineffective assistance of counsel by not raising an issue on appeal. For the reasons stated below, the court denies defendant's motion.
I. BACKGROUND FACTS
On March 24, 2010, defendant was charged with nine drug-related offenses, including conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin with death and serious bodily injury resulting (Count 1); six counts of distributing heroin (Counts 2, 3, 5, 6, 7, and 8); one count of possession of heroin with the intent to distribute (Count 9); one count of maintaining a residence to facilitate drug trafficking (Count 4); one count of attempted murder of a government witness (Count 10); and one count of use and discharge of a firearm in relation to a crime of violence (Count 11). (Doc. 285.) From November 22, 2010, to December 16, 2010, defendant was tried on these charges. (Docs. 658-670.) On December 16, 2010, the jury found the defendant guilty on all counts. (Doc. 472.) On July 21, 2011, the court sentenced defendant to life imprisonment on Count 1; 360 months' imprisonment on Counts 2, 3, 5, 6, 7, and 8; 240 months' imprisonment on Counts 4 and 10; and 120 months' imprisonment on Count 11, with Counts 1 through 10 to run concurrently, and Count 11 to run consecutively. (Doc. 624 at 3.)
On August 18, 2011, defendant timely filed his Notice of Appeal. (Doc. 626.) Defendant argued the district court erred in denying his challenge under Batson v. Kentucky, 476 U.S. 79 (1986). On January 2, 2013, the Tenth Circuit denied defendant's Batson challenge and affirmed his conviction and sentence. (Doc. 765.) On April 16, 2013, defendant filed a Petition for Writ of Certiorari, which the Supreme Court denied on May 28, 2013. (Docs. 768 and 769.) On January 27, 2014, defendant filed the instant motion, arguing that his appellate counsel should have raised on direct appeal the issue of whether extrajudicial statements of co-conspirators were admissible.
II. LEGAL STANDARDS
Defendant claims that his counsel provided ineffective assistance on appeal for failing to argue that certain co-conspirator statements should not have been admitted. In these circumstances, Strickland v. Washington, 466 U.S. 668 (1984), governs the inquiry. Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001) (citations omitted). As such, defendant must establish both that his counsel's performance was deficient and that his defense was thereby prejudiced. See Strickland, 466 U.S. at 687. Here, the relevant questions are whether appellate counsel was "objectively unreasonable" in failing to raise this issue on direct appeal and, if so, whether there is a "reasonable probability that, but for his counsel's unreasonable failure" to raise the claim, defendant "would have prevailed on his appeal." Smith v. Robbins, 528 U.S. 259, 285-86 (applying Strickland, 466 U.S. at 687-91, 694).
"When considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, we look to the merits of the omitted issue." Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001) (citing Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999)). If the omitted issue is meritless, then counsel's failure to raise it does not amount to constitutionally ineffective assistance. See Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998) (citation omitted). If the issue has merit, the court must then determine whether counsel's failure to raise the claim on direct appeal was deficient and prejudicial. Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999). In the context of ineffective assistance of appellate counsel, this means a defendant must show a reasonable probability that, but for the failure to raise a particular nonfrivolous issue, the defendant would have won on appeal. Milton v. Miller, 744 F.3d 660, 669 (10th Cir. 2014) (quoting Smith, 528 U.S. at 285).
Defendant argues ineffective assistance counsel for failing to raise on direct appeal the admissibility of extrajudicial statements of co-conspirators pursuant to Federal Rule of Evidence 801(d)(2)(E). Specifically, defendant asserts that the evidence presented at his James  hearing did not establish the existence of a conspiracy. The court turns to whether defendant's attorney should have raised the issue on appeal.
Co-conspirator statements are properly admitted into evidence pursuant to Federal Rule of Evidence 801(d)(2)(E) if by a preponderance of the evidence, the trial court finds that 1) a conspiracy existed; 2) both the declarant and the defendant against whom the declaration is offered were members of the conspiracy; and 3) the statement was made in furtherance of the conspiracy. United States v. Johnson, 911 F.2d 1394, 1403 (10th Cir. 1990). Under Tenth Circuit law, the district court may satisfy the prerequisite for admission of co-conspirator statements by holding a James hearing or by provisionally admitting the statements with the caveat that the government prove the existence of the conspiracy through trial testimony or other evidence. United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). The preferred order of proof is first for the district court to hold a James hearing "outside the presence of the jury to determine by a preponderance of the evidence the existence of a predicate conspiracy." United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) (citing United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994)).
At a James hearing, the court may consider the hearsay statements sought to be admitted as well as independent evidence when making the requisite findings. Bourjaily v. United States, 483 U.S. 171, 179 (1987); Johnson, 911 F.2d at 1403. The court has the discretion to consider any hearsay evidence not subject to privilege, regardless of whether or not that evidence would be admissible at trial. Owens, 70 F.3d at 1124. The government may, in the court's discretion, call only the case agent to testify to the existence of the conspiracy pursuant to Federal Rule of Evidence 104(a). Id.
Some independent evidence of the conspiracy is required. The Tenth Circuit has held that Bourjaily requires "at most, there... be some independent evidence linking the defendant to the conspiracy." United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir. 1987). Independent evidence need not be substantial to be found sufficient. United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993). A co-conspirator's direct observations and contact with the defendant qualify as independent evidence of a conspiracy. United States v. Hernandez, 829 F.2d 988, 995 (10th Cir. 1987). Summary testimony by a case agent regarding factual statements by a co-conspirator to the agent during an investigation may be considered as independent evidence of a conspiracy. Owens, 70 F.3d at 1125.
In this case, most of defendant's arguments center around an attack on Detective Pamela Bennett, who testified during the James hearing. This court conducted the James hearing and found that the government had established the existence of a predicate conspiracy. (Doc. 675 at 103-106.) In ruling on defendant's instant motion, the court reviewed the James hearing transcript and considered the evidence presented by the government. Based on the court's review, the court believes that the government established by a preponderance of the evidence that 1) a conspiracy existed among many individuals to sell heroin from various residences; 2) both the defendant and the declarants-including (but not limited to) Scott Dawdy, Ferdinand Handy, and Henry Nelson-were members of the conspiracy; and 3) ...