JOHN BISSELL, Chief Judge, District
This matter comes before the Court on a petition for writ of habeas corpus filed by Phyllis Hardy ("petitioner"), seeking to "vacate, set aside, or correct" her conviction and sentence pursuant to the provisions of 28 U.S.C. § 2255. Petitioner seeks relief for alleged violations of her fifth amendment right to due process and her sixth amendment right to effective assistance of counsel based on the following grounds:
I. Fifth amendment: petitioner alleges that
(1) the judge who adjudicated the matter in a bench trial was biased (a) as a result of hearing testimony regarding an alleged conspiracy by petitioner and her attorney to have witnesses give false testimony; (b) threats to witnesses, allegedly initiated by petitioner, and (c) petitioner's previous drug conviction.
(2) the Court did not notify the parties of its tentative findings before sentencing; and
(3) petitioner cannot be convicted of both "money laundering" and "conspiracy to import cocaine" under the facts proved at trial.
II. Sixth amendment: petitioner alleges that
(1) because of an alleged conflict of interest, her attorney did not rigorously defend her; and
(2) because of various alleged deficiencies in her attorney's performance at trial and sentencing, including his failure to interview her husband, Willie Lee Hardy, his failure to have petitioner take a lie detector test and have her testify at trial supported by the results of the lie detector test (assuming she did, indeed, pass), and his failure at sentencing to object to the four-level enhancement for aggravating role and the application of career offender status to petitioner.
This Court has jurisdiction to hear these claims pursuant to 28 U.S.C. § 2255.
FACTS AND BACKGROUND
Petitioner was indicted on three counts by a federal grand jury on April 10, 1992. She was charged with (i) conspiracy to import at least five kilograms of cocaine from Aruba into the United States, in violation of 21 U.S.C. § 963; (ii) conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846; and (iii) engaging in a monetary transaction in property derived from specific unlawful activity, in violation of 18 U.S.C. § 1957. Following petitioner's waiver of her right to a jury trial, a bench trial commenced before this Court on June 16, 1992. On July 20, 1992, the Court rendered a verdict of guilty on all three counts of the indictment.
On October 2, 1992, the Court sentenced Hardy to a term of imprisonment of 366 months on Counts One and Two, and a term of imprisonment of 120 months on Count Three, all terms to be served concurrently. Following a timely appeal, the Third Circuit affirmed petitioner's conviction in all respects, without opinion. United States v. Hardy, 9 F.3d 1542 (3d Cir. 1993).
The Court's findings of fact in the matter underlying this petition may be summarized as follows: Based on the testimony of cooperating participants and other corroborating information, the government learned that from about 1983 until 1989 petitioner and her husband, Willie Lee Hardy, imported multiple kilograms of cocaine into the United States and distributed the drugs throughout the country. The cocaine was imported to this country primarily from Aruba and Venezuela and smuggled into the country in the girdles of paid couriers. Petitioner recruited the couriers, maintained a cache of counterfeit birth certificates to facilitate the couriers' travel to and from Aruba, and occasionally housed them in residences she owned.
Once the cocaine was in the United States, it was distributed by Willie Lee Hardy and others. Petitioner participated in the importation, preparation and distribution of the cocaine once it arrived in the United States. Furthermore, petitioner acted as the "treasurer" for the proceeds garnered from these activities. She took the proceeds of the drug sales and placed them in bank accounts in the name of Denise Y. Jones, a relative, and in 1988, petitioner purchased two parcels of property in North Carolina using proceeds from these drug transactions.
ANALYSIS
I. Petitioner's Fifth Amendment Rights were not Violated
A. The Prosecutor's Purported Statements that Petitioner and Her Attorney Conspired to have Witnesses give False Testimony, Supposed Insistence that Petitioner had Threatened Witnesses, and Alleged Underscoring of the Fact that Petitioner had a Previous Drug Conviction did not Bias the Court.
Petitioner claims that her fifth amendment right to due process of law was violated because during the bench trial, the prosecutor raised certain matters that biased the bench, in its capacity as fact-finder, and that this compromised her right to a fair trial. The Court finds that no such bias resulted from any of the matters raised by the prosecutor during petitioner's trial.
First, petitioner argues that the Court was biased as a result of the prosecutor's insistence at trial that petitioner and her attorney were engaged in a conspiracy to have a key prosecution witness give false testimony and that petitioner had threatened prosecution witnesses. (See Petitioner's Br. at 10). Either of these would constitute an obstruction of justice. Indeed, in the Presentence Report, prepared by a U.S. Probation Officer, the government urged the Court to increase petitioner's offense level computation by two levels, pursuant to U.S.S.G. § 3C1.1, for obstruction of justice. However, the Court declined to apply this two-level enhancement. If the Court had been persuaded by the prosecutor's allegations that petitioner attempted to manipulate witnesses and had been convinced that, therefore, petitioner had obstructed justice, it would thereafter have applied the recommended two-level enhancement. Because the Court did not do so, petitioner's claim that the Court was biased by the prosecutor's allegations is without merit. Additionally this Court in fact, in adjudicating this matter, did not in any way rely upon any of the alleged conduct of the petitioner to which this aspect of her motion is directed.
Second, petitioner claims that the prosecutor underscored the fact that in the late 1970's, petitioner had been convicted of conspiracy to distribute heroin and that because such information would have been inadmissible in a jury trial, it was exceptionally prejudicial. This claim is also without merit. While it is true that, generally, the same rules that govern in jury trials govern as well, in bench trials, "the feeling of the inexpediency of these restrictions as applied to judges has caused courts to say that the same strictness will not be observed in applying the rules of evidence in judge-trials as in trials before a jury." 1 McCormick Evidence, § 60. See e.g. Clark v. United States, 61 F.2d 695 (8th Cir.), aff'd, 289 U.S. 1 (1933). Because of a judge's own professional experience in evaluating evidence, a judge in a bench trial will be presumed to have disregarded the inadmissible and to have relied only on the competent evidence. (Id.; see also General Metals, Inc. v. Truitt Manufacturing Co., 131 S.E.2d 360 (N.C. 1963); Lenahan v. each, 422 P.2d 683 (Oregon 1967)).
In the case at bar, there was an overwhelming amount of competent evidence to support petitioner's conviction, regardless of the prosecution's alleged underscoring of the fact that petitioner had a previous drug conviction. Furthermore, this Court explicitly stated in issuing its verdict that in its capacity as fact-finder, the bench did not consider this previous drug conviction. (Tr. Vol. 15 at 3:23-25) ("I did not take into consideration in any way whatsoever the supposed heroin trafficking conviction of the defendant that predated this proceeding.")
B. The Court Adequately Notified the Parties of Its Tentative Findings Before Sentencing, in Compliance with U.S.S.G. §6A1.3(b).
Petitioner claims that the Court failed to notify the parties of its tentative findings before sentencing, and that it did not give the parties an opportunity to contest these findings, thereby violating the requirements of U.S.S.G. § 6A1.3(b). Petitioner's argument is without merit. The Court did, in fact, notify the parties of its tentative findings, and it afforded both parties the opportunity to contest such findings.
U.S.S.G. § 6A1.3(b) states that:
The court shall resolve disputed sentencing factors in accordance with Rule 32(a)(1), Fed.R.Crim.P. [effective Nov. 1, 1997], notify the parties of its tentative findings and provide a reasonable opportunity for the submission of oral or written objections before imposition of a sentence.
Despite the suggestion in § 6A1.3(b) that the court issue tentative findings, case law indicates that issuing tentative findings is wholly discretionary. See e.g. United States v. Francisco, 35 F.3d 116 (4th Cir. 1994). A court must, however, permit defense counsel to comment at the sentencing hearing on the probation officer's sentencing recommendations.See United States v. Mylor, 971 F.2d 706 (11th Cir. 1992). Furthermore, in accordance with Fed.R.Crim.P. 32, any and all disputes over sentencing factors must be resolved before sentencing actually occurs. See United States v. Rosa, 891 F.2d 1063 (3d Cir. 1989).
No evidentiary hearing (concerning disputes raised at sentencing) is required when the sentencing judge was the trial judge. See United States v. Jones, 875 F.2d 674 (8th Cir.), cert. denied, 493 U.S. 862 (1989).
In the case at bar, the Court went beyond what is required by U.S.S.G. § 6A1.3(b). It issued a written Presentence Report ("PSR") to both parties in a very timely manner and allowed both parties ample time for oral arguments at the sentencing hearing. In fact, petitioner's counsel responded to the PSR in writing, and both petitioner's counsel and petitioner herself presented oral arguments at the sentencing hearing prior to the imposition of sentence. (See Sentencing Tr. at 481:7-12, 504-532). Furthermore, in accordance with Fed.R.Crim.P. 32, all disputes were resolved before the sentence was imposed.
C. The Elements used to Prove Money Laundering were not the Same as Those Used to Prove Conspiracy.
Petitioner's final due process argument is that she cannot be convicted of both money laundering and conspiracy under the facts that were proven at trial. She claims that the same evidence that was used to prove money laundering was also used to prove conspiracy. She argues that "where a defendant engages in no criminal conduct beyond that which is punishable by a specific statute, s/he cannot be convicted based on the identical conduct of conspiracy to sell cocaine." (See Petitioner's Br. at 11 (citing United States v. Perrone, 936 F.2d 1403, 1415 (2d Cir. 1991)). Petitioner claims that the government charged and proved money laundering under 18 U.S.C. § 1957 with the same evidence that it proved conspiracy to import cocaine, under 21 U.S.C. § 963. This, she contends, is contrary to the principle set forth in Perrone. The Court finds that each of these offenses involves separate elements and that each was supported by some facts that were not material to the other; accordingly, the Court finds that petitioner's argument is without merit.
II. Petitioner's Sixth Amendment Right to Effective Assistance of Counsel was not Violated.
Petitioner claims that her sixth amendment right to effective assistance of counsel was violated due to an alleged conflict of interest that prevented her attorney from mounting a vigorous defense. Petitioner also alleges various deficiencies in her attorney's performance at trial and sentencing.
Any petition for relief based on a claim of ineffective assistance of counsel must satisfy the standard set forth by the Supreme Court in the controlling case of Strickland v. Washington, 466 U.S. 668 (1984). In that case, the Supreme Court stated that in order to prevail on such a claim, the petitioner must show both (i) that her counsel's performance was deficient and (ii) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. (Id. at 687). Unless both of these prongs are satisfied, it cannot be said that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (Id.)
The proper standard for attorney performance is that of reasonably effective assistance, and such performance will be deemed deficient only if it falls below the range of competence demanded of attorneys in criminal cases. (Id. at 688). In adjudicating a claim for ineffective assistance, "[j]udicial scrutiny of counsel's performance must be highly deferential," for it is "all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." (Id. at 689 (citing Engle v. Isaac, 456 U.S. 107 (1982)). Even when an attorney has made an error of an objectively unreasonable nature, the conviction and/or sentence will stand unless there is a reasonable probability (one sufficient to make the outcome unreliable) that, but for the attorney's deficient performance, the outcome would have been different. (Id. at 691, 694).
A. Counsel's Alleged Conflict of Interest did not Prevent Him from Providing Effective Assistance.
Petitioner's first sixth amendment claim is that her counsel had a conflict of interest that prevented him from mounting a vigorous defense at trial and that this constituted ineffective assistance of counsel. The Court finds that petitioner's counsel's alleged conflict of interest did not create deficient performance and, moreover, that petitioner cannot establish prejudice.
Petitioner's argument centers on the belief that the prosecutor implied, at sentencing, that defense counsel was involved with petitioner in a conspiracy to cause a key prosecution witness, Josie Smith, to commit perjury:
PROSECUTOR: . . . What happened when Josie Smith finally got indicated? Why, because Willie Hardy dimed her out. She was called to [defense counsel's] office allegedly to discuss the civil matter and at the end of it she said [to defense counsel], you know, I been indicted. He said yes, I already know . . . [j]ust stick to your story. . . .
(Sentencing Tr. at 31:9-23). Because of this implied threat of indictment for obstruction of justice, petitioner argues, "[i]t is simply unrealistic to say that [defense counsel] could present as vigorous a defense as possible." (See Petitioner's Br. at 13). Specifically, petitioner argues that, but for this threat, defense counsel would have interviewed Willie Lee Hardy and then called him to testify that his wife, petitioner, was not involved in the conspiracy. Additionally, petitioner argues that defense counsel would have polygraphed petitioner and, assuming that she passed, would have called her as a defense witness.
There is no evidence in the record that petitioner's counsel failed to interview Willie Lee Hardy and, furthermore, the results of a polygraph test are inadmissible as evidence. More importantly, the prosecutor's allegedly threatening statement occurred at sentencing, not during the trial and, thus, it could not have affected defense counsel's performance at trial. Petitioner herself states in her petition that "[t]he accusation against [defense counsel] created an actual conflict of interest." (Emphasis added) (see Petitioner's Br. at 13). Because the above allegation by the prosecutor focusing attention on a possible conflict of interest did not occur until sentencing, it could not have had any bearing on defense counsel's performance at trial. Furthermore, the evidence against petitioner at trial was overwhelming and, thus, there is no reasonable probability that the outcome of the trial would have been different even if defense counsel had done exactly as petitioner argues he should have. Accordingly, petitioner's claim of ineffective assistance of counsel at trial due to an alleged conflict of interest is without merit.
Indeed, in light of petitioner's prior criminal convictions and obvious stake in the outcome of the trial, this Court states without reservation that petitioner's credibility, particularly if her testimony was contradicted by other evidence, would have been very low and the weight of her potential testimony minimal.
B. Defense Counsel's Failure at Sentencing to Object to a Four-Level Increase in Petitioner's Base Offense Level for Aggravating Role in the Offense and the Application of Career Offender Status do not Constitute Ineffective Assistance of Counsel
Petitioner also claims that she was denied effective assistance of counsel as the result of various alleged deficiencies by her attorney at sentencing. Petitioner argues that defense counsel should have objected to the Court's failure to follow the procedures set forth at U.S.S.G. § 6A1.3(b). Petitioner further argues that defense counsel should have objected to the four-level increase, pursuant to U.S.S.G. § 3B1.1(a), for her role in the offense ("Aggravating Role") and the application, pursuant to U.S.S.G. § 4B1.1, of career offender status to petitioner based upon two prior drug convictions.
As with a habeas petitioner who is seeking to overturn her conviction, a habeas petitioner who is seeking to "vacate, set aside, or correct" her sentence on the basis of post-conviction errors must also satisfy both prongs of the Strickland test.United States v. Nino, 878 F.2d 101 (3d Cir. 1989). In the case at bar, petitioner's claim that the Court failed to follow the procedures set forth at U.S.S.G. § 6A1.3(b) fails for the reasons set forth earlier in this Opinion. That standard was in fact observed in this case; there was no basis for an objection. The Court also finds that defense counsel's failure to object to the four-level increase for an Aggravating Role was not objectively unreasonable given the weight of the evidence in support of this increase. Finally, while an argument could have been made objecting to petitioner's career offender classification, the Court finds that no prejudice resulted from any failure to object. In other words, there is no reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Accordingly, petitioner's claim for relief on this ground fails under the second prong of the Strickland analysis.
1. Four-Level increase for Aggravating Role in the Offense.
Petitioner argues that defense counsel was ineffective in that he failed to object to the four-level increase assessed to petitioner's base offense level for an aggravating role in the offense. U.S.S.G. § 3B1.1(a) provides that a defendant's offense level should be increased by four levels if the defendant was "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." In light of the factually bound nature of this inquiry, great deference is commonly given to the trial court's assessment of defendant's role in the offense. See, e.g. United States v. Manarite, 44 F.3d 1407 (9th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2610 (1995) (reviewing such a determination for clear error). Furthermore, more than one person can qualify as a leader or organizer of a criminal activity. See United States v. Gaytan, 74 F.3d 545 (5th Cir. 1996).
In the case at bar, the Court's findings in support of its verdict clearly establish that petitioner was an "organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive" as contemplated by U.S.S.G. § 3B1.1(a). The Court found, among other things, that petitioner was involved in an extensive criminal activity in which she recruited other individuals to serve as drug couriers, provided housing for the couriers and supplied the couriers with false identification documents. (See Tr. Vol. 15 at 6-15). And, of course, these couriers were not the only "participants" in the proven "criminal activity."
2. Application of Career Offender Status to Petitioner
Finally, petitioner argues that defense counsel was ineffective because he failed to object to the career offender status that was applied to petitioner. Based upon two prior felony drug convictions, petitioner was labeled a career offender and, accordingly, she was placed in criminal history Category VI, pursuant to U.S.S.G. § 4B1.1 which provides, in relevant part, that "A defendant is a career offender if . . . (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. . . . A career offender's criminal history category in every case shall be Category VI." However, U.S.S.G. § 4A1.2(a) states that "Prior sentences imposed in related cases are to be treated as one sentence for purposes of calculating a criminal history category pursuant to U.S.S.G. § 4A1.1,. . . ." Prior convictions are related if, among other reasons, they "were part of a common scheme or plan or . . . were consolidated for trial or sentencing." See U.S.S.G. § 4A1.2, Application Note 3.
In the case at bar, petitioner was convicted of two drug conspiracies in October 1977. The first conviction, in the U.S. District Court for the Middle District of Georgia, was for conspiracy to possess with intent to distribute heroin in Georgia and Florida. The second conviction, in the U.S. District Court for the Southern District of New York, was for conspiracy to possess with intent to distribute heroin in the New York metropolitan area, Georgia and Florida. Petitioner was arrested on October 21, 1977 for the Georgia offense and nine days later, on October 30, 1977, for the New York offense. Petitioner's husband, Willie Lee Hardy, and one Larrie Rulon were involved in both conspiracies. While these cases were not consolidated for trial or sentencing, concurrent sentences were imposed. Thus, the two offenses were, arguably, "part of a common scheme or plan," and it is possible that they could have been counted as one sentence for purposes of calculating petitioner's criminal history category.
However, the Court need not determine whether or not they should have been counted as one sentence, because petitioner was not prejudiced as a result of this possible error and resulting misapplication, if any, of career offender status. Applying the career offender provision, petitioner's base offense level was 37, with a total offense level of 41 (four points added for Aggravating Role). Without career offender status, her base offense level would have been 36, with a total offense level of 40. Had petitioner's two prior convictions been counted as one, she still would have picked up three criminal history points pursuant to U.S.S.G. § 4A1.1(a), which requires the Court, when calculating criminal history category, to "[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one month." Furthermore, two points could have been added because she committed the present offenses while on parole. (See Government's Answer at 27-28). With an offense level of 40 and a criminal history category of III (5 points) there would be no change in the sentencing range here. 40/III and 41/VI each generates a range of 360 months to life. (Id.)
Even a mere three points for the prior related convictions would have put petitioner in criminal history Category II. With an offense level of 40 and a criminal history category of II, petitioner's sentencing range would have been 324-405 months. Petitioner was sentenced to 366 months, which is well within the 324-405 months sentencing guideline range. Therefore, there is no showing of prejudice as a result of defense counsel's failure to object to the application of career offender status to petitioner. Petitioner fails to satisfy the second prong ofStrickland and, thus, fails to establish a sixth amendment violation.
Had the matter been returned to the Court for resentencing at the lower guideline range, this Court would have reimposed the original sentence of 366 months.
CONCLUSION
Petitioner fails to show a violation of either her fifth amendment right to due process or her sixth amendment right to effective assistance of counsel. Accordingly, her application pursuant to 28 U.S.C. § 2255 is denied.
ORDER
For the reasons set forth in the Court's Opinion filed herewith,
It is on this 1ST day of February, 1999,
ORDERED that the petition of Phyllis Hardy to vacate, set aside, or correct her conviction and sentence, pursuant to 28 U.S.C. § 2255, be and the same hereby is denied; and it is hereby
CERTIFIED that, for the reasons stated in this Court's accompanying Opinion, Phyllis Hardy has not made a substantial showing of the denial of a constitutional right nor has she advanced any other arguable grounds for the issuance of a certificate of appealability; therefore, this Court declines to issue a certificate of appealability.