AVERN COHN, United States District Judge
I. Introduction
This is a habeas case under 28 U.S.C. § 2255. On November 9, 1990, Petitioner was convicted, following a jury trial, of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 841 (a)(1) and 846. Petitioner failed to appear for sentencing and an arrest warrant was issued on January 24, 1991. Almost eight years later, on September 21, 1998, Petitioner was arrested on the warrant while in federal custody on other charges. The government then charged Petitioner with failure to appear, in violation of 18 U.S.C. § 3146 (a)(1). On May 27, 1999, Petitioner was sentenced to 188 months on the drug charge and 21 months consecutive on the failure to appear charge.
Before the Court is Petitioner's motion under § 2255, essentially claiming that the United States Supreme Courts decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), which was decided during the pendency of Petitioner's appeal, entitles him to relief. For the reasons which follow, the motion will be denied.
II. Background
The general factual background of Petitioner's case is set forth in the Court of Appeals for the Sixth Circuit's opinion affirming Petitioner's, and his co-defendants' conviction on direct appeal. See United States v. Hernandez, 227 F.3d 686 (6th Cir. 2000). Briefly, Petitioner was indicted along with several others as being part of a large scale marijuana conspiracy spanning from Texas to Michigan. With respect to the quantity of drugs attributable to Petitioner, the Court found Petitioner and his co-defendants responsible for 1400 pounds of marijuana, which was accepted by the presentence investigation report in calculating Petitioner's sentence. The Court also found Petitioner a leader in the organization for purposes of sentencing.
At sentencing, the Court found Petitioner responsible for 1400 pounds of marijuana. The jury was not instructed to reach a finding as to quantity.
Petitioner's conviction and sentence were affirmed on direct appeal, noted above. The Supreme Court denied certiorari. Solis v. United States, 00-8435 (U.S. May 14, 2001).
III. Analysis A. Apprendi claim 1.
In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the proscribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Id. at 2362-2363. This standard has been widely applied in drug cases, and numerous courts, including the Sixth Circuit, have held drug quantity is "such a fact."
In cases such as here, if drug quantity is not charged in the indictment and subsequently found by the jury to be proved beyond a reasonable doubt, the sentence may not exceed the maximum penalty; here, that would be the catch-all provision of 21 U.S.C. § 841 (b)(1)(D), which provides that "[i]n the case of less than 50 kilograms of marijuana . . . such person . . . shall be sentenced to a term of imprisonment of not more than five years. . . . If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years. . . ."
2.
Petitioner first claims that the Sixth Circuit's decision was "arbitrary and capricious" because the court did not specifically consider his Apprendi claim. He also argues that his counsel was ineffective for not raising the issue sooner. Apprendi was decided during the pendency of Petitioner's direct appeal. Shortly before the Sixth Circuit issued its decision, Petitioner filed a motion to file a supplemental brief in order to raise the Apprendi issue. The Sixth Circuit's decision, however, does not mention Petitioner's motion or Apprendi, but it did address Petitioner's argument that the Court's quantity calculation was not supported by a preponderance of the evidence. The Sixth Circuit, after reviewing the entire record, found no error in the Court's quantity calculation:
Walden's
trips were not the only evidence available to the trial court. There was admissible testimony form Walden that Solis had been involved in the conspiracy for eight years, that other couriers had been used, and that monthly quantities exceeded 500 pounds. There was also a narcotics record book that showed large quantities of money going back to Texas. Finally, the court had before it evidence that while still at large following his trial in the instant case. Solis had been apprehended during a drug bust in Cameron County, Texas for which he had been sentenced on September 17, 1998 to 18 months [for possession with intent to distribute marijuana], the amount involved being approximately 72 pounds. Given this evidence, we believe the total quantity of marijuana attributed by the court to the original coconspirators is supportable and probably conservative.
Hernandez, 227 F.3d at 699 (emphasis added). Petitioner again raised the
Apprendi issue in a petition for rehearing and a petition for rehearing en banc, both of which were denied.
United States v. Hernandez, 98-2298 (6th Cir. Nov. 1, 2000);
United States v. Hernandez, 98-2298 (6th Cir. Nov. 30, 2000).
Petitioner's claim that because the Sixth Circuit did not specifically address his Apprendi claim, he was deprived of his right to due process, is without merit. Although the Sixth Circuit did not mention Apprendi in its decision, it is undisputed that Petitioner raised the issue. Having raised the issue, the Court is satisfied that the Sixth Circuit considered it, particularly after Petitioner raised the issue again in a petition for rehearing and petition for rehearing en banc. Petitioner also raised the issue in the Supreme Court. Under these circumstances, where the issue was raised and rejected on direct appeal, Petitioner cannot use a § 2255 to re-litigate issues raised on direct appeal except in highly exceptional circumstances which are not present here. See DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996); Oliver v. United States, 90 F.3d 177, 180 (6th Cir. 1996). As such, the Court need not revisit the issue here on collateral review.
It also follows that Petitioner's claim that he received ineffective assistance of counsel because counsel did not file a supplemental brief raising Apprendi until shortly before the Sixth Circuit issued it decision also fails, as the issue was in fact raised and considered by the Sixth Circuit.
3.
Even assuming that Petitioner's Apprendi claim was properly before the Court, Petitioner is still not entitled to relief. In order to prevail on an Apprendi claim, Petitioner must show, on collateral review, that the failure to submit the issue of quantity to a jury is an error of constitutional "magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). Petitioner cannot meet this standard. As noted by the Sixth Circuit, the Court's quantity calculation was "probably conservative." Given the evidence at trial as to quantity and the Sixth Circuit's decision regarding quantity, Petitioner cannot show that a properly instructed jury would have found Petitioner responsible for a lesser quantity such that he would have received a different sentence. See United States v. Sifuentes, 30 Fed. Appx. 555, 561, 2002 WL 358777 (6th Cir. Mar. 5, 2002).
B. Petitioner's failure to testify
Petitioner also claims that his trial counsel prevented him for testifying on his own behalf, despite his desire to do so. Petitioner says that because of this, this trial counsel was ineffective. Whether counsel's performance was constitutionally deficient under the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires that a petitioner first prove that counsel's performance was deficient. This "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. Prejudice also requires that a petitioner show that "there is a reasonable probability that, but far counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged errors have undermined the reliability of and confidence in the result." McQueen v. Scraggy, 99 F.3d 1302, 1311 (6th Cir. 1996).
Here, Petitioner claims that had he testified, he would have undercut the corroborative value of a tape-recorded conversation in which a codefendant Jesus Reyes discussed "Oscar" and Petitioner would have explained that the "Oscar" referred to someone else. However, as fully explained in the government's brief at p. 8-9, Petitioner's claim lacks merit. Jesus Reyes did testify that the "Oscar" was not Petitioner. Moreover, the Court carefully questioned Petitioner as to his right not to testify and informed him that it was his decision not to testify. Petitioner points to no evidence in the record to the contrary. Finally, the evidence against Petitioner was overwhelming. Thus, as the government notes, even if trial counsel improperly prevented him from testifying, Petitioner cannot show prejudice as a result of his failure to testify.
IV. Conclusion
Petitioner has failed to show that he is entitled to relief under 28 U.S.C. § 2255. Accordingly, Petitioner's motion is DENIED.
SO ORDERED.