claims are without merit, and we thus hold that he procedurally defaulted them and that we would, even absent this default, deny his petition.
A. Sentencing Arguments
Charles's first set of arguments, which raises two sentencing issues, is problematic. As we detailed above, Seventh Circuit case law limits a habeas petitioner's ability to raise sentencing issues on collateral review: "The sort of increase produced by a few levels' difference in sentencing calculations cannot be raised indirectly on collateral attack by complaining about counsel's work." Martin, 109 F.3d at 1178. The Seventh Circuit has specified that small sentencing errors do not produce the sort of prejudice Strickland contemplates, see Durrive, 4 F.3d at 551, and if Charles cannot show ineffective assistance then he fails to overcome his procedural default.
We have previously described some of the uncertainties that the rule of Durrive (as affirmed in Martin) presents, see United States v. Tai, 972 F. Supp. 434, 438 n.4, 1997 WL 361110, at *3 n. 4 (N.D. Ill. June 20, 1997), and Charles's petition poses yet another: does Durrive's prohibition against a habeas petitioner using a minor sentencing defect to establish prejudice for an ineffective assistance of counsel claim also bar relief to a petitioner complaining of multiple minor defects? This is a question of first impression in this circuit.
Charles makes two basic sentencing claims. First, he argues that we should have held him accountable for between 15 and 50 kilograms of cocaine (thereby giving him an offense level of 34) rather than for over 50 kilograms of cocaine (which gave him an offense level of 36). See Pet'r Attach. A at 6. He also contends that we should have made specific findings about the amount of cocaine for which he was responsible. See Pet'r Attach. B at 3. Second, he argues that he was not a manager or supervisor in the Lloyd drug ring and that we should not have enhanced his offense level by two points for that role. See Pet'r Attach. C at 1. In sum, he maintains that his offense level should have been 34, rather than 38, and that his sentencing range should have been between 151 and 188 months, rather than between 235 and 293 months. We sentenced him to 270 months. If he is correct about both claims, Mario's sentence is as many as 119 (270-151) months -- nearly 10 years -- too long, but it is more likely about 100 (270-170) months too long, given that we sentenced him near the midpoint of the original sentencing range and it is fair to assume that we would impose a similar sentence in the new range. See Gonzalez v. United States, 967 F. Supp. 326, 332 (N.D. Ill. 1997) (making a similar assumption for purposes of discussion).
Durrive specifies that a small sentencing error cannot establish prejudice under Strickland but warns that "grave" or "rather appreciable" errors can demonstrate prejudice. See Durrive, 4 F.3d at 551. This dichotomy gives rise to a problem of characterization. Taken individually, there is no question that Charles's claims, which each complain about a two point offense level adjustment, fall under Durrive's dominion. But read holistically, Charles's petition complains that his sentencing attorney was completely ineffective: of the three essential elements of Guidelines-era sentencing (base offense level, adjustments, and criminal history), Charles claims that his attorney bungled the only two which were at issue in his case. In which light are we to view this situation?
What direction we gleam from Durrive itself points towards the latter approach. Durrive speaks of adjusting "the offense level by two or three steps" as being "exactly the routine decision that is supposed to be handled at sentencing and on direct appeal." Id. It continues: "Before the advent of the Sentencing Guidelines, no one would have dreamed that choices influencing the term of imprisonment within such a narrow range could be relitigated on collateral attack." Id. The instant situation is different. Charles is not pointing to one minor error and counting on the Guidelines' codification of sentencing factors to make his attack possible. Instead, he attacks his attorney's entire sentencing performance, which he argues cost him nearly 10 years of extra jail time. Petitioners used habeas for this purpose prior to the enactment of the Sentencing Guidelines, see, e.g., United States v. Johnson, 658 F.2d 1176, 1182 (7th Cir. 1981), and we accordingly do not believe that Durrive applies here.
This does not mean, of course, that we have relieved Charles of his burden of showing prejudice in order to obtain the relief he desires; we merely hold that Durrive does not bar him from attempting to do so. This analytic distinction will be of cold comfort to Charles, however, since he fails to demonstrate that he was in any way prejudiced by his counsel's supposed errors.
Charles's first claim, that we based his sentence on an erroneously large quantity of drugs, appears to rest on his belief that the testimony of only one witness, Troy Shelton, implicated him in drug activities. See Pet'r Reply at 3. Charles argues that we should not believe Shelton's testimony (because prosecutors gave Shelton reason to lie by granting him special treatment) and that, regardless, the testimony of one witness is insufficient to condemn him.
As support, Charles resorts to first principles: "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." See id. at 3-4 (citing Deut., 19:15); see also Matt, 18:16 ("that in the mouth of two or three witnesses every word may be established"), quoted in Cramer v. United States, 325 U.S. 1, 24 n. 36, 89 L. Ed. 1441, 65 S. Ct. 918 (1945). We have no doubt that the so-called two witness requirement, which is at least in part the manifestation of ancient concerns about evidence reliability, see Irene Merker Rosenberg & Yale L. Rosenberg, "Perhaps What Ye Say Is Based Only on Conjecture"--Circumstantial Evidence, Then and Now, 31 HOUS. L. REV. 1371, 1387 (1995), has exerted a strong influence on American law.
See, e.g., U.S. CONST. art. III, § 3 (requiring two witnesses in treason cases). This does not mean, however, that the whole of Deuteronomy is "good law" today. See, e.g., State v. Cabrera, 1993 Ohio App. LEXIS 1435, No. 92 AP-1028, 1993 WL 63883, at *3 (Ohio App. 10 Dist. 1993) (unpublished opinion) ("Deuteronomy 19:15 . . . is not the law of the state of Ohio or, to our knowledge, of any other state."); Rosenberg & Rosenberg at 1380 (discussing Deuteronomy's absolute and obviously outdated prohibition on the use of all circumstantial evidence). No modern legal principle prevents the testimony of one witness from damning a defendant.
The government, at sentencing, provided ample evidentiary support for both our findings as to the amount of cocaine for which Charles was accountable, see Sent. Tr. at 3-6, and as to Charles's managerial role in the drug ring, see Sent. Tr. at 4-5, 8-9. None of Charles's invective against Shelton casts any doubt on the correctness of those holdings or convinces us that a new inquiry into Shelton's credibility would be profitable. Accordingly, Charles has failed to show that he was in any way prejudiced by his attorney's failure to raise the sentencing issues on appeal. We hold that he procedurally defaulted these claims and that they are deficient on the merits.
B. Other Claims
Charles next argues that his appellate attorney was ineffective for neglecting to appeal the sufficiency of the evidence supporting his conviction for possessing cocaine with the intent to distribute it. We find this claim meritless. Even Charles acknowledges that the evidence at trial showed that Shelton delivered 10 kilograms of cocaine to Charles's house, see Pet'r Attach. D at 2, and the other evidence at trial established that Charles, as one of Mario's distributors, had at least constructive possession over far more cocaine than that.
Charles also argues that his appellate attorney provided him with ineffective assistance by not raising before the Seventh Circuit a prosecutor's improper comment
regarding his decision not to testify.
We hold that the curative instruction we gave at the time cured any error, see United States v. Ashford, 924 F.2d 1416, 1423 (7th Cir. 1991), and that the weight of the evidence against Charles rendered the error harmless in any case, see United States v. Perez, 870 F.2d 1222, 1229 (7th Cir. 1989).
Finally, weeks after he finished briefing his § 2255 petition, Charles asked that this Court appoint to represent him. We do not believe that any of his claims are even arguably meritorious, so the appointment of counsel would not serve any purpose. We therefore deny his motion.
A. Quantity of Drugs
Soto-Rodriguez first complains that this Court erred in imposing on him a sentence which held him accountable for a quantity of drugs unforeseeable to him at the time of the conspiracy. Soto-Rodriguez explains the cause for his procedural default of (as well as the substantive basis for) this claim by reference to Shelton's jailhouse recantation of his trial testimony.
We find this insufficient. Soto-Rodriguez has not provided us with a copy of Shelton's recantation, and the account of it to which he refers us, see Walker, 25 F.3d at 548-49 (doubting the "truth or trustworthiness of Shelton's alleged recantation"), only concerns Shelton's testimony against co-conspirator Ronald Jackson, who we tried separately from Soto-Rodriguez. And while Charles did submit an affidavit from Shelton concerning Shelton's untruthful testimony, that affidavit refers exclusively to Shelton's testimony at Charles's trial, which was (again) separate from Soto-Rodriguez's. We do not see the possible relevance to Soto-Rodriguez of Shelton's supposed admission of wrongdoing at other trials.
We would, in any event, deny Soto-Rodriguez's claim on the merits. Shelton was not the only witness against Soto-Rodriguez, and the government presented "an abundance" of evidence proving Soto-Rodriguez's drug activities. Soto-Rodriguez, 7 F.3d at 99-100. Soto-Rodriguez's sentence would not change even if, in abeyance of reality, we believed that Shelton's trial testimony was a complete fabrication.
B. Sentence in Excess of Maximum
Soto-Rodriguez next contends that his sentence exceeds the statutory maximum. To overcome his procedural default he alleges ineffective assistance of counsel. As we noted during our analysis of Mario's petition, this type of claim avoids Durrive and we examine the merits to determine whether Soto-Rodriguez has demonstrated prejudice.
He has not. His claim rests mostly on a confused reading of several amendments to the drug laws, but it boils down to this: he believes that, as of the time of his offense, the maximum penalty for his crime of conviction was 15 years -- but we sentenced him to 17 1/2 years. For the 15 year maximum, he cites United States v. McNeese, 901 F.2d 585, 602 n.6 (7th Cir. 1990), but he seems not to understand that drug sentences vary with the amount of drugs at issue and that the court in McNeese held the defendant responsible for far less cocaine than he. The actual maximum sentence for Soto-Rodriguez's crime was life, see 21 U.S.C. § 841(b)(1)(A)(ii)(II), a fact which renders his claim frivolous.
C. Supervised Release
Soto-Rodriguez's final claim is that we exceeded statutory limitations by sentencing him to 10 years of supervised release.
Prior to 1980, a number of courts interpreted 21 U.S.C. § 846, the conspiracy statute which criminalized Soto-Rodriguez's conduct, as allowing the imposition of supervised release or special parole terms. See, e.g., United States v. Burman, 584 F.2d 1354, 1356-58 (4th Cir. 1978). In 1980, the Supreme Court disagreed with this interpretation and held that § 846, by its terms and in light of the rule of lenity, did not authorize special parole terms, see Bifulco v. United States, 447 U.S. 381, 387-402, 65 L. Ed. 2d 205, 100 S. Ct. 2247 (1980), and later cases applied this holding to supervised releases, see, e.g., United States v. Cardenas, 917 F.2d 683, 688 (2d Cir. 1990) (collecting cases). The Court recognized, however, that its construction of § 846 might be out of touch with "present legislative expectations," and it invited Congress to amend the statute. Bifulco, 447 U.S. at 402. Congress did so eight years later, see Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4377 (codified at 21 U.S.C. § 846), and the current version of the statute allows for supervised release. See McNeese, 901 F.2d at 602 n.6.
The amended statute, however, does not apply to Soto-Rodriguez, since he committed his crimes in early 1988 and Congress did not amend § 846 until November of that year. See, e.g., United States v. Golden, 954 F.2d 1413, 1417 (7th Cir. 1992) (explaining the Ex Post Facto Clause's prohibition against applying to prior conduct a later amendment which increases the authorized punishment for that conduct). Section 846 thus provides no basis for Soto-Rodriguez's supervised release.
Another provision of the Code, however, allows a court, when imposing any sentence, to "include as part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment," 18 U.S.C. § 3583, and this provision predates Soto-Rodriguez's participation in the conspiracy. Under § 3583, Soto-Rodriguez is eligible for a maximum of 5 years of supervised release, see id. §§ 3583(b)(1) (authorizing supervised release for a Class A felony), 3559 (describing a Class A felony as one punishable by life imprisonment), and we hereby reduce his current 10 year term of supervised release to 5 years. See, e.g., United States v. Osborne, 931 F.2d 1139, 1146 (7th Cir. 1991) ("We hold that 18 U.S.C. § 3583 authorizes a district court to impose a term of supervised release in sentencing a defendant . . . who has been convicted of a narcotics conspiracy under 21 U.S.C. § 846 which was operative after the November 1, 1987, effective date of 18 U.S.C. § 3583, but terminated prior to the 1988 amendment of 21 U.S.C. § 846.").
VI. Gustavo Calle
Calle brings a number of issues to our attention in his petition and points to the ineffectiveness of his appellate counsel as his cause for not raising them previously. We hold that each of his arguments are meritless and he that he thus fails to establish prejudice for his default.
Calle first argues that an argument made by the Lloyd brothers -- that the government obtained their convictions through the use of perjured testimony and in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) -- applies with equal force to his case. The Seventh Circuit considered the Lloyds' Brady claim and found it meritless, see Lloyd, 1997 U.S. App. LEXIS 26925, 1997 WL 471339, at *1, and Calle's is meritless for the same reasons.
Calle next offers several bald accusations -- that his attorney conspired with the prosecutors, that his attorney had a conflict of interest, that he was discriminated against, and that his arrest somehow violated the Fourth Amendment -- despite his recognition of his burden to make "specific factual allegations" as to these claims. Pet'r Br. at E (citing cases). His complete failure to offer any supporting facts leaves with no choice but to find his claims meritless.
Calle also claims that his conviction violated the Commerce Clause as construed in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). Given that Lopez concerned wholly intrastate activities and that Calle's role in the Lloyd drug ring was to import cocaine from New York for sale in Illinois, see Soto-Rodriguez, 7 F.3d at 98, Calle's argument is frivolous. See generally The Lottery Case, 188 U.S. 321, 326, 47 L. Ed. 492, 23 S. Ct. 321 (1903) ("We are of the opinion that lottery tickets are subjects of traffic, and therefore are subjects of commerce, and the regulation [or prohibition] of the carriage of such tickets from state to state . . . is a regulation of commerce among the several states.").
Calle's final attack on his conviction and sentence stems from his belief that Congress created the Sentencing Guidelines in violation of Article I, Section 7 (describing the passage of bills) and Article III, Section 3 (concerning treason) of the Constitution. We are not sure what to make of this claim, and we respond only by observing that the Supreme Court has upheld the constitutionality of the Sentencing Commission and of the Sentencing Guidelines. See Mistretta v. United States, 488 U.S. 361, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989).
For the foregoing reasons, we grant in part and deny in part the motion of Mario Lloyd; we deny both of the motions of Charles Lloyd; we grant in part and deny in part the motion of Jairo Soto-Rodriguez; and we deny the motion of Gustavo Calle. It is so ordered.
MARVIN E. ASPEN
United States District Judge