Stone v. United States , 258 F. App'x 784 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0870n.06
Filed: December 20, 2007
No. 05-6006
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES A. STONE, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA, ) EASTERN DISTRICT OF KENTUCKY
)
Respondent-Appellee. )
Before: DAUGHTREY and COLE, Circuit Judges; and COLLIER,* District Judge.
PER CURIAM. James A. Stone appeals pro se from the denial of his motion, filed
pursuant to 28 U.S.C. § 2255, to vacate the sentence imposed upon him as the result of
his convictions on federal drug charges. Stone insists that his trial counsel was
constitutionally ineffective (1) in failing to object to the prosecutor’s closing argument that
commented on Stone’s decision to invoke his right to silence and (2) in failing to object to
the quantity of crack cocaine attributed to him for sentencing purposes. Although we
conclude that Stone has shown deficiencies in the performance of his trial counsel, he has
not shown that he was prejudiced by those deficiencies. For this reason, we affirm the
district court’s order denying relief on the petitioner’s § 2255 motion.
*
The Hon. Curtis L. Collier, Chief District Judge for the Eastern District of Tennessee, sitting by
designation.
No. 05-6006
Stone v. United States
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of October 11, 1999, Lexington, Kentucky, police stopped
a Chevrolet van that the officers had observed speeding and being driven somewhat
erratically. See United States v. Carter, Nos. 00-5855, 00-5879, 00-5888, 2002 WL
1890132, at **1-2 (6th Cir. Aug. 15, 2002) (a prior decision of this court on the direct
appeal of co-defendants Elton Carter, James Stone, and Antonio Smith). Although the
driver of the van, James Stone, was originally arrested only for reckless driving, a
subsequent search of the van, of Stone, and of Stone’s two female passengers, Lia Hicks
and Yolanda Parker, produced a room key to Room 264 of a local motel and a makeup
compact case containing both cocaine residue and marijuana stems. See id. at *2. Upon
arriving at that motel, the officers then obtained consent to enter Room 264 and there
found three other individuals – co-defendants Carter, Smith, and Raymond Williams – who
shared the room with Stone, Hicks, and Parker. In searching the room, the police officers
uncovered various evidence of drug use, $2,310 in cash, and 60 grams of crack cocaine.
See id. at **2-3. Because trial testimony indicated that Stone actually paid for the room
and financed the criminal activities of the group, the jury ultimately convicted Stone on
three drug counts, convictions that then led the district judge to sentence Stone to life in
prison. See id. at *4.
We affirmed the convictions, not only of Stone but also of Carter and Smith. See
id. In doing so, we noted that the government had violated the defendants’ Fifth
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Stone v. United States
Amendment rights by the prosecutor’s “constant references to the defendants’ decisions
to remain silent.” Id. at *8. But we also held that Stone and his co-defendants had waived
any challenge to that error by declining the district judge’s sua sponte offer to declare a
mistrial because of the misconduct. Id.
Furthermore, we “concluded that an Apprendi [v. New Jersey, 530 U.S. 466 (2000),]
violation occurred” when the district court determined, by a preponderance of the evidence,
that 60 grams of crack cocaine were attributable to Stone, thus increasing his possible
punishment to life in prison. Carter, 2002 WL 1890132, at *12. Because Stone’s counsel
failed to lodge a timely Apprendi objection, however, and because “the drug amount used
was in fact clearly shown,” id., we ruled that any error in this regard did not “seriously affect
the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United
States v. Cotton, 535 U.S. 625, 633 (2002)).
Stone then filed his § 2255 motion with the district court, alleging ineffective
assistance of counsel in that:
(1) at trial, his counsel failed to timely object to the prosecutor’s closing
argument concerning the unrebutted evidence against Stone, resulting in
waiver of that issue for appellate review, (2) at sentencing, his counsel failed
to object to the amount of cocaine used for sentencing purposes, resulting
in the imposition of a life sentence, and (3) on appeal, his counsel failed to
argue that the evidence at trial was insufficient to support his conviction.
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No. 05-6006
Stone v. United States
The magistrate judge recommended that each ground for relief be denied and the district
judge adopted that recommendation in its entirety. Subsequently, we issued a certificate
of appealability on the first and second claims raised in the § 2255 motion.
DISCUSSION
When presented on appeal with a challenge to the denial of a § 2255 motion, we
“review the district court’s factual findings for clear error and its legal conclusions de novo.”
Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). Moreover, “[t]o warrant
relief under § 2255, a petitioner must demonstrate the existence of an error of
constitutional magnitude which had a substantial and injurious effect or influence on the
guilty plea or the jury’s verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)
(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Stone contends that he was deprived of a fair trial and a valid sentence because he
received the ineffective assistance of counsel. In addressing such a claim, we are guided
by the now-familiar two-part test of Strickland v. Washington, 466 U.S. 668 (1984). As
required by that analytical framework:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
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No. 05-6006
Stone v. United States
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Id. at 687.
In evaluating the prejudice suffered by a petitioner as a result of alleged ineffective
assistance of counsel, “[i]t is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding.” Id. at 693. Indeed, “[v]irtually
every act or omission of counsel would meet that test, and not every error that conceivably
could have influenced the outcome undermines the reliability of the result of the
proceeding.” Id. (citation omitted). Rather, the petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
A. Failure of Trial Counsel to Object to Comments on Right to Silence
As we previously noted in addressing the issues raised in Stone’s direct appeal:
A defendant’s Fifth Amendment rights [against self-incrimination] are violated
when a prosecutor is permitted to use against him his choice to remain silent
at trial. Griffin v. California, 380 U.S. 609, 613, 85 S. Ct. 1229, 14 L. Ed. 2d
106 (1965). Post-arrest silence also may not be used against a defendant
at trial in order to imply guilt from that silence. Doyle v. Ohio, 426 U.S. 610,
611, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Pre-arrest silence also may not
be used as substantive evidence of guilt, and will be admitted at trial only for
impeachment purposes. See Combs v. Coyle, 205 F.3d 269, 281-83 (6th
Cir. 2000); see also Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S.Ct.
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No. 05-6006
Stone v. United States
1710, 123 L. Ed. 2d 353 (1993). As such, the use of an accused’s pre-arrest
silence is “not a legitimate governmental practice.” Combs, 205 F.3d at 285.
Carter, 2002 WL 1890132, at *6.
During the closing arguments in Stone’s trial, however, the prosecutor continually
ignored this fundamental precept of criminal law and made reference to the defendants’
failure to adduce proof contravening the government’s assertions. In his initial closing
argument, for example, the prosecutor stated, “[T]he unrefuted evidence of this case is that
over 60 grams of crack cocaine is found in a hotel room in which these four defendants
were staying; unrefuted, uncontroverted, undenied . . . .” (Emphasis added.) He then
continued by arguing, “I asked Detective Dawson, when you found the drugs, when you
found them, what was the reaction of each of them? Was there any reaction? None.
Common sense. Common sense.” (Emphasis added.) Finally, in ending his rebuttal
argument, the government’s attorney continued:
The search of that room clearly produced 60 grams of crack cocaine. Three
individuals there; Mr. Stone, who’s driving the van where crack is found;
where Mr. Carter is using a fake I.D.; cell phone; scales; pager; all indicative
of trafficking in drugs. That’s unrefuted. There’s no speculation there. The
evidence, the common sense dictates that these individuals were here
trafficking in cocaine, and that’s what they were – and that’s what happened
and had been doing, and they were caught. And that’s why they hung their
head, and that’s why there was no surprise, and that’s the simple truth of the
matter. (Emphasis added.)
Surprisingly, defense counsel did not lodge objections to the majority of these
improper statements, and Stone now insists that those failures amounted to ineffective
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No. 05-6006
Stone v. United States
assistance of counsel that should result in setting aside his convictions. Such inattention
on the part of defense counsel to his client’s constitutional rights is clearly a practice that
falls below the standard of competence that is demanded of criminal defense attorneys.
Fortunately, however, the district judge himself recognized the serious constitutional
problems presented by the prosecution’s unrestrained advocacy and, sua sponte, offered
the defendants a mistrial. For strategic reasons, defense counsel chose not to avail
themselves of that option and instead agreed that the district court could offer a curative
instruction to the jury on the matter following the conclusion of the arguments. In that vein,
the court charged:
The defendants have an absolute right not to testify or present evidence.
The fact that they did not testify or present any evidence cannot be
considered by you in any way. Do not even discuss it in your deliberations.
Remember that it is up to the government to prove the defendants guilty
beyond a reasonable doubt. It is not up to the defendants to prove that they
are innocent.
You must disregard the government’s argument in closing that its evidence
was unrebutted. (Emphasis added.)
Given the overwhelming proof of Stone’s complicity in the drug possession plans,
and the district court’s emphasis on the importance of disregarding any insinuation by the
government that the defendants were required to, or even should have, rebutted the
proffered testimony, we conclude that no prejudice resulted from this error. Because a
different result at trial was not reasonably probable, we hold that Stone’s ineffective-
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Stone v. United States
assistance-of-counsel claim based on the failure to object to improper closing arguments
is without merit.
B. Failure of Trial Counsel to Challenge Drug Quantity
As additional evidence that he received ineffective assistance of counsel, Stone
asserts that his trial attorney improperly allowed him to be sentenced to life in prison by
failing to object to the district court’s finding, made without the intervention of a jury, that
Stone’s sentence should be based upon possession of 60 grams of crack cocaine. As we
determined on Stone’s direct appeal:
Because of the district court’s determination that sixty grams of cocaine base
were involved, Stone was sentenced to life imprisonment under [21 U.S.C.]
§ 841(b)(1)(A), beyond the statutory maximum of thirty years in
§ 841(b)(1)(C). Apprendi requires that any fact that enhances the sentence
in this manner must be found by the jury beyond a reasonable doubt.
Apprendi, 530 U.S. at 483. Because Instruction No. 20 clearly informed the
jury that they need not find the amount alleged in the indictment, “but that
only a measurable amount of cocaine base (crack cocaine) was involved,”
the jury made no finding regarding drug quantity sufficient for the district
court to sentence Stone beyond the thirty year maximum allowable for
possessing “a measurable amount of cocaine base” under § 841(b)(1)(C).
Accordingly, Stone’s sentence of life imprisonment violates Apprendi.
Carter, 2002 WL 1890132, at *12.
Clearly, the failure of defense counsel to object to an obvious Apprendi error that
results in a life sentence instead of a maximum sentence of 30 years, as otherwise
provided by statute, constitutes the type of deficient performance that satisfies the first
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Stone v. United States
prong of the Strickland standard. Nevertheless, Stone cannot establish the necessary
prejudice from that error to justify a grant of § 2255 relief. Under the unique facts of this
case, even if trial counsel had lodged an Apprendi objection and a jury, rather than the
district judge, had determined the drug quantity, the result would have been the same. The
only evidence in the trial testimony supporting convictions on the crack cocaine charges
was that 60 grams of crack were recovered from Room 264 of the motel. Thus, Stone was
necessarily chargeable with possession of those 60 grams or of no amount at all. Because
Stone cannot establish that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different,” we conclude
that this § 2255 challenge is also without merit.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court
denying relief on the petitioner’s § 2255 motion.
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