JEFF KAPLAN, United States Magistrate Judge
Movant Abdul Satar has filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should be denied.
I.
Movant was convicted of possession with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. § 841 (a)(1). Punishment was assessed at 136 months confinement followed by supervised release for a period of four years. His conviction and sentence were affirmed on direct appeal, but the term of supervised release was modified to three years. United States v. Satar, No. 00-10533 (5th Cir. Apr. 20, 2001). Movant now seeks post-conviction relief under 28 U.S.C. § 2255.
Because the jury charge did not specify the quantity of heroin allegedly possessed by movant, the Fifth Circuit determined that the elements found by the jury satisfied only a conviction under 21 U.S.C. § 841 (b)(1)(C), a Class C felony. The term of supervised release for a Class C felony is three years. Satar, No. 00-10533, op. at 5-6, citing 18 U.S.C. § 3583 (b)(2). See also United States it Doggat, 230 F.3d 160, 165 n. 2 (5th Cir. 2000), cert. denied, 121 S.Ct. 1152 (2001).
II.
In three grounds for relief, movant contends that he received ineffective assistance of counsel at trial and on appeal.
A.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defendant must first demonstrate that counsel's performance fell below an objective standard of reasonableness. id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (defendant must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cen. denied, 110 S.Ct. 1311 (1990). A defendant must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
B.
Movant complains that his lawyer: (1) failed to challenge the consent search of his apartment which resulted in the seizure of contraband drugs; (2) did not object to a statement given by Abdul Halik to foreign authorities implicating movant in drug trafficking activities; and (3) should have attacked the jury charge on grounds other than Apprendi. The Court will address each argument in turn.
1.
Movant first contends that his attorney failed to challenge the consent search of his apartment which resulted in the seizure of a package containing heroin. According to movant, he "was denied the opportunity to have a full and fair evidentiary hearing" on the issue. (Mot. at 2). The Court disagrees. Prior to trial, defense counsel filed a motion to suppress the evidence found in movant's apartment. A suppression hearing was held on January 19, 2000. At this hearing, DEA Agent Don York testified that he set up the controlled delivery of a package containing drugs to movant. (Sup. Hrg. Tr. at 3-5). York and other agents observed movant pick up the package from his building manager and enter his residence. (Id. at 8). After approximately 45 minutes, York became concerned that an electronic transmitter inside the package had failed or been detected by movant. At that point, the surveillance team knocked on the door to movant's apartment and entered the premises with their weapons drawn. They conducted a protective sweep of the apartment "to make sure there is [sic] no other Threats to our safety at that time." (Id. at 8-11). Movant was briefly detained during this process. (Id. at 12). After the package was located in a front closet, the agents informed movant that the box contained narcotics and asked to discuss the contents, origin, and destination of the package with him. (id. at 15-16). York read movant his Miranda rights and asked to search the apartment for additional contraband. (Id. at 16). He also advised movant that he had a right to refuse the search. (Id.). Despite these admonishments, movant gave the agents both oral and written consent to search his apartment and the package. (Id. at 17-18; Gov't Exh. 16).
Movant presented a slightly different version of the facts during his testimony at the suppression hearing. He said that three or four agents entered his apartment with their guns pointed at him. (Id. at 30). The agents handcuffed movant and ordered him to the ground. (Id.). Although he admitted signing the consent form, movant "could not read what was on the paper" and did not realize That he had The right to require the agents to obtain a search warrant. (Id. at 31). The trial judge considered the evidence and denied the motion to suppress. In announcing his ruling, the judge stated:
The question is — and where the disagreement arises is whether [movant] was under some duress at the time or whether this consent was freely given. Despite the fact that Mr. Satar says that he was told to get down and handcuffed on the floor and That the officers were walking around with drawn handguns, he does not really say, as I understand his oral testimony today, that he felt threatened by any of that. Rather his claim is simply that he did not understand his right to refuse the request of the officers to search his apartment.
It seems to me unless there was an element of duress here, which I don't find any basis for in the evidence, Mr. Satar would naturally have questioned the officers about whether he had to do this or whether he was at liberty to refuse. So the fact that after this form was read to him which says "I freely consent to this search," that is an indication to me that he did freely consent.
(Id. at 41-42).
Clearly, the validity of The consent given by movant to search his apartment and open the package containing contraband drugs was fully litigated prior to trial. Counsel was not ineffective for failing to persuade the judge to grant his motion.
This issue was also addressed on direct appeal, albeit under a "plain error" standard of review. The Fifth Circuit held tat "[tihe district court was entitled to give more weight to the agent's version of the facts based on a finding that the agent was more credible than Satar." Satar, No. 00-10533, op. at 2-3.
2.
Next, movant criticizes his lawyer for failing to object to a statement given by Abdul Halik to foreign authorities implicating movant in drug trafficking activities. However, this statement was never offered into evidence at trial. Rather, DEA Agent Jeffrey Boobar testified that Halik, who had been arrested on drug charges in Turkmenistan, cooperated with DEA agents and facilitated the controlled delivery of a package containing heroin to movant. (Trial Tr. at 11-16). As such, this testimony did not constitute hearsay and was properly admitted.
Halik told law enforcement officials that, while visiting relatives in Afghanistan, he agreed to transport several embroidered dresses back to Turkmenistan and mail them to Dallas, Texas. According to Halik:
On 22 July, 1 left for Turkmenistan, I went alone and on the same day entered Turkmeinistan through the Customs point "Kushky." The customs officials, in the course of their inspection, discovered black opium seeds in the tea that Mi Abmat's wife gave to me, and also discovered heroin in the seams of the embroidery on 11 dresses that isa Muhainmed passed to me. I knew nothing of the fact that these narcotics were hidden in these items. I also did not know that Mi Abmad was in Afghanistan from 14 through 22 July 1999, since I myself did not see him in Afghanistan and did not know that he transported 1000.5 grams of heroin contraband.
(Mot., Exh. A). Although it is not clear from the record, the Court surmises that the package referenced by Halik was ultimately delivered to movant by DEA agents.
3.
Finally, movant contends That his trial and appellate counsel should have challenged the jury charge on grounds other than Apprendi. Although movant alleges that this failed strategy "doomed any opportunity to advance an otherwise meritorious claim" with respect to The jury charge, he does not suggest what this "other meritorious claim" might have been. (Mot. at 3). This conclusory assertion does not merit habeas relief. See Fahie v. Cornyn, 231 F.3d 193, 196-97 (5th Cir. 2000).
On direct appeal, the Fifth Circult held that the jury charge was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, because the sentence imposed did not exceed the statutory maximum punishment for the offense, such error did not warrant reversal. Satar, No. 00-10533, op. at 5, citing United States v. Mesliack, 225 F.3d 556, 575-76 (5th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001).
RECOMMENDATION
The motion to correct, vacate, or set aside sentence should be denied.