United States v. Gregory , 30 F. App'x 55 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
COURTNEY FLOYD GREGORY, a/k/a  No. 00-7188
Marcello N. Williams, a/k/a
Deangelo D. Marsh, a/k/a Bobby
Lee Graves,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-96-22, CA-99-136)
Argued: October 29, 2001
Decided: February 15, 2002
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Char-
lottesville, Virginia, for Appellant. Michael R. Smythers, Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
Paul J. McNulty, United States Attorney, Norfolk, Virginia, for
Appellee.
2 UNITED STATES v. GREGORY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Courtney Floyd Gregory appeals the district court’s denial of his
motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. He argues that United States v. Rhynes, infra, requires
resentencing, and, in the alternative, that his attorney was ineffective
for failure to raise the Rhynes issue at trial or on direct appeal. We
now affirm.
Courtney Gregory and three co-defendants were indicted in a 23
count indictment by a federal grand jury on April 29, 1996. Gregory
was only charged with conspiracy to distribute and possess with intent
to distribute cocaine, cocaine base, and marijuana. A jury found him
guilty of this count by general verdict. The district court found that
Gregory was accountable for 496.71 grams of cocaine base and 37.71
grams of powder cocaine. The district court found that the attributed
amount of cocaine base merited a sentence of life imprisonment. Fur-
ther, because of two murders committed during the conspiracy, Greg-
ory’s base offense level was determined to be 43, also meriting life
in prison. Accordingly, the district court sentenced Gregory to life in
prison, a five year supervised release term, and a $100 special assess-
ment.
On appeal, Gregory challenged various aspects of his sentence
including improper reliance on testimony during sentencing, classifi-
cation of drugs as powder or base cocaine, and the cross-referencing
of the two homicides to increase the base offense level. The Fourth
Circuit affirmed in United States v. Gregory, No. 97-4089, slip op. at
9-13 (4th Cir. 1998) (unpublished). The Supreme Court denied Greg-
ory’s application for a writ of certiorari on November 2, 1998.
The Fourth Circuit subsequently decided United States v. Rhynes,
206 F.3d 349, 379-80 (4th Cir. 1999), rehearing en banc granted and
UNITED STATES v. GREGORY 3
overruled in part on other grounds, 218 F.3d 310 (4th Cir.), cert.
denied, 530 U.S. 1222 (2000). Rhynes holds that, in the absence of a
special verdict form, a defendant convicted of a conspiracy involving
different kinds of drugs may only be sentenced to the maximum pen-
alty attached to the drug carrying the least stringent penalty. This
holding is based at least in part on the reviewing court’s inability to
determine upon which drugs the conviction was based.
Gregory filed a 28 U.S.C. § 2255 motion on November 9, 1999
arguing that, in accordance with Rhynes, the lack of a special verdict
in his case required the district court to vacate his conviction, or to
resentence him to the maximum term for the drug carrying the lowest
penalty, 20 years in this case. Gregory v. United States, 109 F. Supp.
441 (E.D. Va 2000). In the alternative, Gregory claimed that his coun-
sel was ineffective for failure to raise the Rhynes claim on direct
appeal.
Because Rhynes was decided on direct appeal, the district court
decided that Gregory had to satisfy the two part "cause and actual
prejudice" standard of United States v. Frady, 456 U.S. 152, 167-68
(1982), applicable to collateral attacks. 109 F. Supp. 2d at 454. The
district court noted that "cause" may be established excusing the
defendant’s procedural default if his claim is so novel that its factual
or legal basis was not reasonably available to counsel in the earlier
proceedings. If, however, "the tools to construct Petitioner’s current
objection were available, finality interests demand that a mere
unawareness of the legal basis for his claim not constitute cause for
Petitioner’s procedural default." 109 F. Supp. 2d at 454. Accordingly,
the district court examined the authorities prior to our decision in
Rhynes. Relying mainly on the Second Circuit’s decision in Orozco-
Prada v. United States, 732 F.2d 1076 (2d Cir. 1984) (relying in part
on Quicksey v. United States, 525 F.2d 337 (4th Cir. 1975), to hold
that sentence for multiple object drug conspiracy cannot exceed maxi-
mum for lowest charged offense if verdict returned by general verdict
form), and our decision in Quicksey v. United States, 525 F.2d 337(4th Cir. 1975) (remanding for resentencing or retrial where defen-
dants were convicted by general verdict of conspiracy charged under
two statutes having different penalties), the district court correctly
concluded that, at the time of trial or direct appeal, not existing in its
4 UNITED STATES v. GREGORY
full form, Gregory’s Rhynes claim was not novel enough to establish
cause. 109 F. Supp. 2d at 456-7. See United States v. Mikalajunas,
186 F.3d 490, 492-93 (4th Cir. 1999).
Having decided that Gregory’s Rhynes claim was not novel enough
to constitute cause, the district court turned to his ineffective assis-
tance of counsel claim. The district court began by stating the unex-
ceptionable proposition that, even though a claim may not be novel
for purposes of establishing cause, its lack of novelty does not imply
that failure to raise the claim constitutes ineffective assistance of
counsel. 109 F. Supp. 2d at 457 (citing Engle v. Isaac, 456 U.S. 107,
133-34 (1982) (finding claim was not novel but stating that not "every
astute counsel" would have recognized or argued claim). Further-
more, the district court noted that this circuit does not mandate
research into other circuit’s law in order to comport with the wide lat-
itude given counsel under Strickland. 109 F. Supp. 2d at 457. Before
Rhynes, there was no controlling law in this circuit establishing Greg-
ory’s claim. The Quicksey holding, pertaining as it did to two separate
statutes, did not necessarily obtain in the context of a single conspir-
acy statute having multiple objects. The district court correctly con-
cluded that it was not until Rhynes’ synthesis of prior case law that
attorneys practicing in this circuit were required to notice the claim
because attorneys are not required to anticipate new rules of law. 109
F. Supp. 2d 458. Indeed, Gregory concedes with commendable can-
dor that circuit precedent points to a result consistent with the actions
of the district court in this case. See United States v. Mikalajunas,
supra; Honeycutt v. Mahoney, 698 F.2d 213 (4th Cir. 1983). Thus, the
district court correctly denied Gregory’s § 2255 motion.
Having had the benefit of oral argument, and having considered the
record and the briefs, we are content to affirm for the reasons substan-
tially stated by the district court in its opinion.
The judgment of the district court denying Gregory’s motion under
§ 2255 is accordingly
UNITED STATES v. GREGORY 5
AFFIRMED.*
*It can be argued with some persuasion that even if Gregory should
prevail on his Rhynes or Strickland claims, he should be denied relief on
the basis of the cross-referenced murders under Sentencing Guidelines
§ 2A1.1 and 2D1.1(d)(1). Even if Gregory had been sentenced for con-
spiracy to distribute marijuana only, the two murders that the district
court found as relevant conduct, upheld on direct appeal and not chal-
lenged here, would require a base offense level of 43, or life in prison.
See § 2D1.1(d)(1). Thus, Gregory could not establish the prejudice prong
of Frady or Strickland because Gregory’s sentence would remain life in
prison. Furthermore, if Rhynes were indeed a new Constitutional rule of
criminal procedure, it is doubtful, that it would be applied in a habeas
proceeding. See Teague v. Lane, 489 U.S. 288, 307 (1989) (absent an
exception to the general rule, stating that new Constitutional rules of
criminal procedure are not applied on collateral review to cases which
have become final before the new rule is announced). However inviting,
we express no opinion on these questions.