11-3457 McCoy v. United States

1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 7 8 August Term, 2012 9 10 (Argued: December 13, 2012 Decided: January 30, 2012) 11 12 Docket No. 11-3457 13 14 15 TRANELL MCCOY, 16 17 Petitioner-Appellant, 18 19 –v.– 20 21 UNITED STATES OF AMERICA, 22 23 Respondent-Appellee. 24 25 26 27 28 Before: 29 WESLEY, HALL, Circuit Judges, Goldberg, Judge.* 30 31 Appeal from the district court’s judgment of August 9, 32 2011, entered pursuant to its ruling and order of August 4, 33 2011, denying Petitioner-Appellant Tranell McCoy’s petition 34 for writ of habeas corpus and issuing a certificate of 35 appealability as to McCoy's ineffective assistance of 36 counsel claim. In its ruling and order, the district court 37 held, inter alia, that McCoy's trial counsel was not 38 constitutionally defective for failing to challenge a second 39 offender notice filed by the government, see 21 U.S.C. §

* The Honorable Richard W. Goldberg, of the United States Court of International Trade, sitting by designation. 1 851, which caused the five year mandatory minimum sentence 2 for McCoy's convictions to increase to ten years, see 21

(b)(l)(B). We affirm. 4 5 AFFIRMED. 6 7 8 9 STEVEN B. RASILE, Law Offices of Mirto & Rasile, 10 LLC, West Haven, CT for Petitioner-Appellant. 11 12 ROBERT M. SPECTOR, Assistant United States 13 Attorney (Sandra S. Glover, Assistant United 14 States Attorney of Counsel, on the brief), for 15 David B. Fein, United States Attorney for the 16 District of Connecticut, New Haven, CT for 17 Respondent-Appellee. 18 19 20 21 PER CURIAM:

22 Petitioner-Appellant Tranell McCoy appeals from the

23 district court’s judgment of August 9, 2011, entered

24 pursuant to its ruling and order of August 4, 2011, denying

25 his petition for writ of habeas corpus and issuing a

26 certificate of appealability as to McCoy’s ineffective

27 assistance of counsel claim. In its ruling and order, the

28 district court held, inter alia, that McCoy's trial counsel

29 was not constitutionally defective for failing to challenge

30 a second offender notice filed by the government, see 21

, which caused the five year mandatory minimum

32 sentence for McCoy’s convictions to increase to ten years,

33 see

(b)(l)(B). McCoy v. United States, No. Page 2 of 11 1 3:09-cv-1960 (MRK),

, at *1 (D. Conn. Aug. 4,

2 2011). For the following reasons, we affirm.

3 I.

4 In August 2006, a jury convicted McCoy on charges

5 contained in two separate indictments, including conspiracy

6 to possess with intent to distribute five grams or more of

7 cocaine base; possession with intent to distribute five

8 grams or more of cocaine base; possession with intent to

9 distribute marijuana; and possession of a firearm in

10 furtherance of a drug trafficking crime.

11 Before trial, the government filed a second offender

12 notice pursuant to

. In that notice, the

13 government indicated its intent to rely on a prior felony

14 drug conviction that would subject McCoy to a sentencing

15 enhancement under

(b). The offense

16 identified by the government was McCoy’s 1996 conviction for

17 the sale of narcotics in violation of Connecticut General

18 Statutes § 21a-277(a). In that 1996 case, McCoy entered an

19 Alford plea, i.e., McCoy never admitted to the facts

20 underlying his conviction. See North Carolina v. Alford,

21

(1970). McCoy’s trial counsel did not object to

22 the second offender notice, which caused McCoy’s five year

23 mandatory minimum sentence to increase to ten years. See 21

Page 3 of 11

(b)(l)(B). The district court ultimately

2 imposed a non-Guidelines sentence of 181 months’

3 imprisonment and eight years supervised release. On direct

4 appeal, McCoy’s appellate counsel did not object to the

5 second offender enhancement or any other aspect of his

6 sentence. McCoy,

, at *6.

7 On March 17, 2011, McCoy filed an amended petition for

8 writ of habeas corpus pursuant to

alleging

9 that (1) his sentence was illegal insofar as it was based on

10 a second offender enhancement under § 851; and (2) his trial

11 counsel was ineffective for failing to object to the second

12 offender enhancement.1 McCoy argued, and the government now

13 concedes, that because he entered an Alford plea, the plea

14 transcript and other court documents did not provide a

15 sufficient basis for finding a predicate “felony drug

16 offense.” See

(b)(l)(B).

17 The district court rejected both of McCoy’s claims.

18 With respect to his claim that his sentence was illegal, the

19 district court concluded that McCoy failed to establish

20 either cause or prejudice to excuse his failure to object to

1 McCoy filed his original § 2255 petition in December 2009. He amended his petition in January 2010. The claims raised in his original and January 2010 amended petition, as well as the district court’s disposition of those claims, are not relevant to this appeal.

Page 4 of 11 1 the second offender enhancement on direct appeal. McCoy,

2

, at *6-7. It reasoned that the legal basis

3 for his claim was “reasonably available at the time of Mr.

4 McCoy’s direct appeal,” and that he was not prejudiced

5 because “whether or not the second offender enhancement

6 applied, Mr. McCoy's sentence was in fact far below the

7 applicable Guidelines range."

. The district

8 court also rejected McCoy’s ineffective assistance of

9 counsel claim, concluding that he did not meet the

10 requirements of the Strickland standard.

; see

11 Strickland v. Washington,

(1984).

12 Nevertheless, the district court issued a certificate of

13 appealability as to the ineffective assistance of counsel

14 claim. McCoy,

, at *10. Although the court

15 was “confident that the performance of Mr. McCoy's trial

16 counsel was not constitutionally deficient,” it concluded

17 that “reasonable jurists could debate the Court’s

18 assessment” of this claim.

19 II.2

20 To prevail on an ineffective assistance of counsel

21 claim, a habeas petitioner must demonstrate that: (1) his

2 We review de novo a district court’s denial of a § 2255 petition. Fountain v. United States,

(2d Cir. 2004).

Page 5 of 11 1 counsel’s representation fell below an objective standard of

2 reasonableness; and (2) there is a reasonable probability

3 that, but for counsel’s unprofessional errors, the result of

4 the proceeding would have been different. See Strickland,

5 466 U.S. at 687–88, 694. McCoy’s petition fails at both

6 steps.

7 McCoy bears a “heavy” burden to establish that trial

8 counsel’s performance was unreasonable under “‘prevailing

9 professional norms.’” Harrington v. United States,

(2d Cir. 2012) (quoting Harrington v. Richter,

11

(2011)). In this vein, he argues that

12 trial counsel’s failure to object to the second offender

13 notice fell below prevailing professional norms and was

14 constitutionally deficient.

15 McCoy premises his claim on a discrepancy between the

16 Connecticut and federal drug schedules. When McCoy entered

17 an Alford plea in 1996, Connecticut General Statutes

18 § 21a-277(a) criminalized some conduct that did not fall

19 within the federal definition of a “felony drug offense.”

20 Specifically, Connecticut criminalizes conduct involving two

21 obscure opiate derivatives, thenylfentanyl and

22 benzylfentanyl, that no longer fall within the federal

23 definition of a “felony drug offense.” Compare Conn.

Page 6 of 11 1 Agencies Regs. § 21a-243-7(a)(10), para. 52, with 21 U.S.C.

2 § 811(a)(1),(h)(2);

(Nov. 28, 1986); 50

(Oct. 29, 1985). Thus, to establish that

4 McCoy’s state conviction qualified as a predicate offense

5 triggering a § 851 sentence enhancement, the government

6 concedes that it needed to rely on court documents “in which

7 the factual basis for [McCoy's] plea was confirmed by the

8 defendant.” Shepard v. United States,

, 26

9 (2005). Instead, the government categorically relied on

10 McCoy’s 1996 Alford plea.

11 We agree with the district court that trial counsel’s

12 failure to object to the second offender enhancement does

13 not constitute constitutionally deficient performance. As

14 the court explained, at the time of McCoy’s trial and

15 sentencing the District of Connecticut “had proceeded with

16 the long-held belief that prior Connecticut convictions for

17 sale of narcotics qualified categorically as . . . felony

18 drug offenses under

(b)(1).” McCoy,

3439529, at *9 (internal quotation marks and citation

20 omitted); see also Sarah French Russell, Rethinking

21 Recidivist Enhancements: The Role of Prior Drug Convictions

22 in Federal Sentencing,

, 1199-1202

23 (2010) (same). Accordingly, the performance of McCoy’s

Page 7 of 11 1 trial counsel did not “amount[] to incompetence under

2 prevailing professional norms” as examined from counsel’s

3 perspective at the time. Harrington v. Richter,

at 788 (internal quotation marks and citation omitted).

5 McCoy does not contest that this was the prevailing

6 professional norm at the time of his trial and sentencing.

7 Instead, he argues that trial counsel should have objected

8 to the second offender enhancement based on developments in

9 the law that occurred after his trial. We disagree.

10 Several weeks after trial, a district court in

11 Connecticut held, for the first time, that a conviction

12 under Connecticut General Statute § 21a-277(a) was not

13 categorically a conviction for a “serious drug offense”

14 under

(e) because of the criminalization in

15 Connecticut of benzylfentanyl and thenylfentanyl.3 United

16 States v. Madera,

(D. Conn.

17 2007); see also United States v. Lopez,

,

18 221-222 (D. Conn. 2008) (same); United States v. Cohens, No.

19 3:07-cr-195 (EBB),

, at *4-5 (D. Conn. Aug.

20 13, 2008) (same). A year after Madera, we held that a

3 A “serious drug offense” under § 924 includes any offense that qualifies as a “felony drug offense” under § 841. See

(e)(2);

(44).

Page 8 of 11 1 conviction under § 21a-277(b) was not categorically a

2 conviction for a “controlled substance offense” as that term

3 is defined in U.S.S.G. § 4B1.2(b), the career offender

4 guideline. United States v. Savage,

(2d

5 Cir. 2008).

6 But “[a]n attorney is not required to forecast changes

7 or advances in the law" in order to provide effective

8 assistance. Sellan v. Kuhlman,

(2d Cir.

9 2001) (internal quotation marks and citation omitted).

10 Rather “counsel’s performance must be assessed . . . as of

11 the time of counsel’s conduct without the benefit of

12 hindsight.”

(internal quotation marks omitted).

13 Moreover, even after Madera, Lopez, Cohens, and Savage, it

14 was not immediately apparent to the defense bar that an

15 Alford plea to Connecticut’s controlled substance laws could

16 not categorically serve as the basis to enhance a sentence

17 under

(b). These cases did not address the

18 long-accepted use of the categorical approach to determine

19 whether a defendant has been convicted of a prior felony

20 drug offense under § 841(b). Indeed, it was not until June

21 29, 2009 that the government acknowledged § 21a-277(a)

22 criminalized conduct involving narcotic substances not

23 covered by the federal definition of a “felony drug offense”

Page 9 of 11 1 used in

(44) and 841(b)(1). See Sentencing

2 Mem. of United

, United States v. Jackson, No.

3 3:06-cr-151 (MRK) (D. Conn. June 29, 2009) (ECF No. 96). We

4 should not fault trial counsel for failing to raise an

5 objection to the second offender enhancement the legal basis

6 for which was not sustained until almost three years after

7 trial. See Sellan,

.

8 McCoy counters that the district court placed him in a

9 “Catch 22” by finding that his claim did not overcome the

10 “cause” portion of the procedural default standard, while

11 also concluding that counsel was not deficient because the

12 argument was novel at the time of the sentencing. But McCoy

13 ignores the differences between determining whether cause

14 exists to excuse a procedural default and whether counsel’s

15 performance was constitutionally deficient. As the district

16 court carefully explained, the reason that McCoy failed to

17 establish cause for failing to raise the challenge below is

18 because the argument was “reasonably available” to McCoy and

19 nothing external prevented him from making it. McCoy, 2011

, at *6-7. But given the defense bar’s long-held

21 position that Connecticut narcotics convictions

22 categorically qualified under § 851, it did not constitute

23 ineffective assistance for trial counsel to fail to

24 challenge the second offender notice. Id. at *9.

Page 10 of 11 1 Finally, even if trial counsel’s performance was

2 deficient, there is not a reasonable probability that, but

3 for counsel’s unprofessional errors, the result of the

4 proceeding would have been different. See Strickland, 466

5 U.S. at 694. The district court made it exceedingly clear

6 in its original written judgment and in its ruling on the

7 habeas petition that a lower mandatory minimum sentence

8 would not have changed McCoy’s sentence.4 McCoy,

3439529 at *8-9.

10 III.

11 For the foregoing reasons, the judgment of the district

12 court, entered pursuant to its thorough and thoughtful

13 ruling and order, is AFFIRMED.

4 We decline to consider whether the performance of McCoy’s appellate counsel was constitutionally deficient as this claim was not included in the certificate of appealability. See Armienti v. United States,

(2d Cir. 2000).

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