United States District Court, Central District of Illinois, Springfield Division
April 24, 2002
CHARLIE LAWUARY, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Richard Mills, United States District Judge
This cause is before the Court on Petitioner's petition under
28 U.S.C. § 2255.
On November 5, 1997, Petitioner was charged in a two-count indictment
with possession of cocaine base (crack), with the intent to distribute,
in violation of 21 U.S.C. § 841(a).
On May 11, 1997, Petitioner was arrested after officers conducted a
search and discovered a baggie containing 21.3 grams of cocaine base
located in Petitioner's overalls. Count I of the indictment charged
Petitioner with possession of cocaine base in violation of
21 U.S.C. § 841(a)(1) and 841(b)(1)(B).
On August 24, 1997, Petitioner ran from a vehicle stopped for a traffic
violation. Officers eventually tackled Petitioner in an effort to subdue
him. As he was tackled, Petitioner threw a baggie containing 64.3 grams
of cocaine base. Count 2 charged Petitioner with possession of cocaine
base in violation of 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A).
Pursuant to a plea agreement, Petitioner pleaded guilty to Count 2 of the
indictment on March 9, 1998. In the plea agreement, Petitioner reserved
the right to appeal the Court's denial of his motion to suppress and to
contest any finding that his prior criminal record subjected him to a
mandatory life sentence. See 21 U.S.C. § 841(b)(1)(A). After
admitting that he had two previous convictions for felony drug offenses,
Petitioner was sentenced to life in prison.
On direct appeal, Petitioner argued that this Court erred in denying
his motion to suppress and that the Government failed to provide adequate
notice of the previous convictions upon which it was relying to enhance
Petitioner's sentence. Petitioner's conviction and sentence were
affirmed by the Seventh Circuit in an opinion issued May 1, 2000. United
States v. Lawuary, 211 F.3d 372 (7th Cir. 2000).
Petitioner's Petition for Writ of Certiorari with the Supreme Court was
denied on October 2, 2000. On September 30, 2001, Petitioner filed this
Under 28 U.S.C. § 2255:
A prisoner in custody under sentence . . . claiming
the right to be released upon the ground that the
sentence was imposed in violation of the Constitution
or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized
by law or is otherwise subject to collateral attack,
may move the court, which imposed the sentence, to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255. However, a petitioner may not raise constitutional
errors in a § 2255 motion unless he has raised these errors on direct
appeal. "Constitutional errors not raised on direct appeal may not be
raised in a § 2255 motion unless the defendant can demonstrate
either: (1) both good cause for his failure to raise the claims on direct
appeal and actual prejudice from the failure to raise those claims; or (2)
that the district court's refusal to consider the claims would lead to a
fundamental miscarriage of justice." McCleese v. United States,
75 F.3d 1174, 1177 (7th
Cir. 1996). Petitioner asserts several grounds for his § 2255 Motion.
I. Petitioner Claims the Court refused to Allow him to Maintain his Not
First, Petitioner alleges that the Court acted in violation of the
Fifth Amendment when it refused to allow Petitioner to maintain his not
guilty plea. In essence, Petitioner is asserting that his guilty plea
was involuntary. Petitioner failed to raise this issue on direct
appeal, so his ability to raise it here depends upon whether he can prove
good cause and actual prejudice or actual innocence. Murray v. Carrier,
477 U.S. 478, 489, 496 (1986). Bousley v. United States, 523 U.S. 614,
621 (1998) (holding that without a showing of cause and prejudice, "the
voluntariness and intelligence of a guilty plea can be attacked on
collateral review only if first challenged on direct review").
Petitioner has made no attempt to establish cause and prejudice in
relation to this claim.
At the change of plea hearing, Petitioner interrupted the hearing to
inform the Court that he wanted to plead not guilty and proceed to
trial. The following is taken from the change of plea hearing
Mr. Miller (Petitioner's counsel): Judge, he's advised
me that he wishes to go to court.
The Court: I beg your pardon?
Mr. Miller: He had advised me now that he wishes to go
to court. To go to trial.
The Court: That he wishes to go to trial?
Mr. Miller: That's right.
The Court: So that you do not wish to proceed to a
plea of guilty at this time; is that right
Mr. Lawuary: That's right.
The Court: — Mr. Lawuary?
Mr. Lawuary: That's right.
The Court: Mr. Lawuary, you realize, do you not, that
you have signed a plea agreement in which
you are admitting that you committed this
offense? Do you realize that?
Mr. Lawuary: Yes, sir.
The Court: And now you want to stop the proceedings
and go back and go to trial by jury is that
Mr. Miller: Yes, sir, seems like it, sir.
The Court: What do you think that you will gain by
that? You see, Mr. Lawuary, the reason why
we have this mandatory life is not because
of this offense, but because of your prior
Mr. Lawuary: I have only been convicted of one prior offense.*fn1
The Court: Well, we have one that is in 1993 and another conviction in
Mr. Lawuary: That's w hat I have been trying to
explain to my lawyer. I went to
penitentiary for 1995. When I copped out
to the case in 1995, I copped to all drug
cases known and unknown. So that should
have covered all that, Your Honor. You
could never — they double
jeopardied me like that. When I copped
out to them, I didn't get busted no more
for no more drugs or nothing during that
That should be one strike, that's what I'm trying to
Mr. Risley (Assistant U.S. Attorney): Your Honor, it
may be that the thing Mr. Lawuary is
concerned about — we're talking about
mandatory life. By entering this plea
agreement, he is concerned he is alleging
— we are going from the records we
have. His attorney, Mr. Miller, has
carefully negotiated an exception clause in
this plea agreement that says that the
Defendant, while he's acknowledging that we
allege he's facing a mandatory life
sentence, that he reserves the right to
deny that and to contest it.
Mr. Miller: That's correct.
Mr. Risley: And if he's correct that he only has one prior drug
The Court: It is not necessarily mandatory.
Mr. Lawuary: That's what I'm saying. Could it be
valid? I mean I only copped — when
I copped out to that one time, how they
going to get two out of it?
The Court: If this agreement indeed is limited only to
the plea and acknowledges the Government's
position of two, but gives you the
opportunity to show the Court we're only
talking about one, then it would definitely
have an affect upon your ultimate
sentence. No question about that.
Mr. Risley: And the Defendant can contest that. And
that, of course, is an issue we will
resolve later on before sentencing. If
the Defendant wants to proceed to trial,
that certainly —
Mr. Lawuary: That was my main thing, what he just said, you know.
The Court: That you can contest whether it's one or two?
Mr. Lawuary: One or two.
The Court: At the time of sentencing.
Mr. Miller: We carefully reserved that.
The Court: How's that?
Mr. Miller: We carefully identified that issue and
Mr. Risley and I negotiated that. And
that's set forth rather carefully in the
plea agreement. But when a man stands in
front of the court, he gets a little
nervous and it is legitimate nervousness
The Court: All right. Now, we've got it all understood?
Mr. Lawuary: Okay.
The Court: We're talking about a plea to Count 2.
It's not until we get down to sentencing
that we're going to worry about one or two
Mr. Lawuary: Right.
The Court: And at that time, you're going to be free
to show me that there's only one, rather
than two, right?
Mr. Lawuary: Right.
The Court: And that, of course, will make a vast
difference in the ultimate sentence.
Mr. Lawuary: Yes, sir.
The Court: Now, we are all agreed up to this point?
Mr. Lawuary: Yes, sir.
The Court: Now, with that understanding, then, do you want to continue —
Mr. Lawuary: We can continue.
The Court: — with the plea?
Mr. Lawuary: Yes, sir.
(Change of Plea Hearing, March 9, 1998, Pages 15-20). Once Petitioner
learned that he could address his concerns before sentencing, he was
satisfied with his decision to plead guilty.*fn3 The Court proceeded
to instruct Petitioner about the possible penalties he would face under
either scenario — whether he had been convicted of one or two prior
felony drug offenses. After describing the possible penalties associated
with Petitioner's guilty plea, the Court asked Petitioner repeatedly if
he was voluntarily pleading guilty. Petitioner stated that he was
pleading guilty of his own free w ill and volition and that no one had
forced him to enter the plea.
Voluntary responses made by a defendant when entering a guilty plea are
binding. United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992).
In addition, there is a strong presumption that an accused's statements
in open court and under oath as to the voluntariness of a guilty plea are
true. Blackledge v. Allison, 431 U.S. 63, 74, (1977); United States v.
Ellison, 835 F.2d 687, 693 (7th Cir. 1987); Hardin v. Peters,
697 F. Supp. 329, 333 (N.D.Ill. 1988). Such a presumption will not be
overcome five years later simply because Petitioner is dissatisfied with
his sentence. It is obvious from the transcript that Petitioner's sole
concern was whether he would be held accountable for two previous felony
drug convictions. Once he learned he could contest their validity at
sentencing, he was satisfied to move forward with his plea of guilty.
The Court gave Petitioner ample opportunity to terminate the change of
plea hearing and continue to trial. He chose instead to plead guilty.
Petitioner has presented insufficient evidence to rebut the presumption
that his plea of guilty was voluntary.
II. Petitioner Argues the Court Lacked Jurisdiction Because the Government
Failed to Comply with 21 U.S.C. § 851(a)
Petitioner next alleges that the Court lacked jurisdiction to impose a
life sentence in this case because the Government failed to comply with
21 U.S.C. § 851(a). Petitioner raised this claim on direct appeal.
The Seventh Circuit affirmed Petitioner's conviction and sentence.
Lawuary, 211 F.3d 372. In its published opinion, the Seventh Circuit
held that the intended purpose of § 851 is to give a defendant
adequate notice that the Government intends to use his prior felony drug
convictions against him. Id. at 376. Our Circuit has affirmed many
different methods for providing such notice to defendants.*fn4 In
Lawuary, the court continued that trend and found that placing the
requisite § 851 information on the first page of the written plea
agreement was sufficient under 21 U.S.C. § 851. Id. at 377.
"Once this court has decided the merits of a ground of appeal, that
decision establishes the law of the case and is binding on a district
judge asked to decide the same issue in a later phase of the same case,
unless there is some good reason for re-examining it." United States v.
Mazak, 789 F.2d 580, 581 (7th Cir. 1986); see
Arizona v. California,
460 U.S. 605, 618 (1983) (holding that "the [law of the case doctrine]
posits that when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same
case"). In the instant case, the Court finds no good reason to
re-examine this issue.
III. Petitioner Argues 21 U.S.C. § 851 is Unconstitutional
Petitioner's next argument is that 21 U.S.C. § 851 is
unconstitutional in that prior felony drug convictions are elements of
the offense which must be presented to a jury and proved beyond a
reasonable doubt. Petitioner failed to raise this claim on direct
appeal, therefore, it is procedurally defaulted. Even assuming it was
not, Petitioner's claim is without merit. All that is required of the
Government is that it prove by a preponderance of the evidence that
Petitioner had two prior felony convictions. United States v. Abanatha,
999 F.2d 1246, 1251 (8th Cir. 1983). Nothing, in that regard, has been
changed by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that
"other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt").
IV. Petitioner Claims 21 U.S.C. § 841(b)(1)(A) is Unconstitutional
Petitioner next argues that 21 U.S.C. § 841(b)(1)(A) is
unconstitutional because Congress intended drug quantity to be a
sentencing factor and not an element of the offense. Petitioner argues
that Congress's intent, to remove from the jury the assessment of facts
that increase the prescribed range of penalties, was unconstitutional.
Petitioner failed to raise this issue on direct appeal, therefore it is
procedurally defaulted. Regardless, Petitioner's claim would be
unsuccessful. The Seventh Circuit has already rejected this argument in
United States v. Brough, 243 F.3d 1078 (7th Cir. 2001).*fn5
V. Petitioner Claims the Indictment was Insufficient as it Omitted Drug
Petitioner's next argument focuses on Apprendi. He states that the
indictment did not allege a specific quantity of cocaine base as required
by Apprendi. This claim was not raised on direct appeal, therefore it is
procedurally defaulted. Petitioner seeks to prove that cause exists for
this failure by asserting that an Apprendi claim was so novel that he was
prevented from arguing it on direct appeal. This argument has been
rejected by the Seventh Circuit. Valenzuela v. United States,
261 F.3d 694, 100 n. 2 (7th Cir. 2001); Garrott v. United States,
238 F.3d 903, 905 (7th Cir. 2001) (holding "the lack of any
reasonable legal basis for a claim may constitute `cause,' see Reed v.
Ross, 468 U.S. 1, 16 (1984), but [not here, because] the
foundation for Apprendi was laid long before 1992").
Even if Petitioner had satisfied both the cause and prejudice
requirements, a majority of circuits have held that the rule announced in
Apprendi is not available to Petitioner retroactively on collateral
review. United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir. 2001);
United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001); McCoy v. United
States, 266 F.3d 1245, 1258 (11th Cir. 2001); Jones v. Smith,
231 F.3d 1227, 1238 (9th Cir. 2000) (holding that Apprendi does not apply
retroactively on collateral review insofar as it effects discrepancies
between an information and jury instructions). The Seventh Circuit has
not specifically addressed the issue. Ashley v. United States,
266 F.3d 671 (7th Cir. 2001). This court chooses to address Petitioner's
claim as if Apprendi applies. Brannigan v. United States, 249 F.3d 584,
587 (7th Cir. 2001) (holding that "when an argument invoking Apprendi
would fail even if that case turns out to be fully retroactive, we deny
it on the merits in order to forestall a further round of litigation if
the Supreme Court later should decide in favor of retroactivity").
Petitioner's premise is correct — a post-Apprendi indictment must
include drug quantity.
For the drug crimes described in 21 U.S.C. § 841
and 846, before a defendant can be sentenced to a term
of imprisonment above the default statutory maximum
provided in § 841(b)(1)(C) or (D), Apprendi
requires that a drug type and amount sufficient to
trigger the higher statutory maximums of §
841(b)(1)(A) or (B) should be specified in the
indictment and must be found by the trier of fact
using the reasonable doubt standard.
United States v. Adkins, 274 F.3d 444
, 454-455 (7th Cir. 2001); see,
e.g., United States v. Bjorkman, 270 F.3d 482
, 492 (7th Cir. 2001);
United States v. Nance, 236 F.3d 820
(7th Cir. 2000).
It is now well established in our Circuit that Apprendi errors in the
indictment, not challenged in the district court, are subject to harmless
error analysis.*fn6 See Bjorkman, 270 F.3d at 492; United States v.
Martinez, 258 F.3d 582, 586 (7th Cir. 2001); Nance, 236 F.3d at 825.
Under that standard of review, it is clear in light of Apprendi that the
Court erred, that the error is plain, and that the error, which subjected
Petitioner to a sentence of life in prison rather than a maximum of 30
years, affected a substantial right. However, the Court should reverse
the sentence only if the error also "seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings." Johnson v.
United States, 520 U.S. 461, 467 (1997) (citations omitted).
In Johnson, the Supreme Court held that overwhelming
evidence of guilt makes it difficult to demonstrate a
miscarriage of justice which justifies a reversal on
the basis of the error. 520 U.S. at 470, 117 S.Ct.
1544. In the same sense, when there is overwhelming
evidence presented as to the minimum quantity of drugs
necessary to sustain the sentence imposed, we have
found that the error is not so serious that it
requires us to set aside the judgment. See Patterson,
241 F.3d at 913-14.
Martinez, 258 F.3d 582, 586 (7th Cir. 2001). If the evidence here was so
overwhelming, clear beyond a reasonable doubt, that Petitioner would have
been found guilty of possession with intent to deliver over 50 grams of
cocaine base or crack, then the Court cannot say that the Apprendi error
was so serious that the judgment should be set aside. See Bjorkman, 270
F.3d at 492; Nance, 236 F.3d at 826.
Here, Petitioner never asserts that he is factually innocent of the
crime charged. In addition, two officers testified about Petitioner's
arrest at the motion to suppress hearing. The officers testified that
Petitioner attempted to run away from the scene of a traffic stop. As
officers tackled Petitioner, Petitioner threw a plastic baggie. It was
later determined that the bag contained 64.3 grams of crack cocaine.
This evidence is "so overwhelming that any reasonable jury would have
been bound to conclude that [Petitioner's] drug activity involved more
than 50 grams" of cocaine base. See id. Therefore, even if Apprendi
applied retroactively, no plain error exists in this case; Petitioner's
VI. Petitioner's Ineffective Assistance Claims
Petitioner also argues that his Sixth Amendment right to counsel was
violated by his counsel's ineffective assistance. First, he argues that
his counsel should have objected when the Government failed to file an
information in accordance with 21 U.S.C. § 851. Second, Petitioner
alleges that his attorney w as ineffective in assisting him maintain his
not guilty plea. Third, Petitioner asserts that his attorney failed to
secure a better plea agreement. Fourth, counsel was ineffective in
researching the validity of the Petitioner's prior convictions,
specifically, his conviction in state case no. 93-CF-789.*fn7
Ineffective assistance of counsel claims are cognizable under §
2255. However, "because counsel is presumed effective, a party bears a
heavy burden in making out a winning claim based on ineffective
assistance of counsel." United States v. Trevino, 60 F.3d 333, 338 (7th
Cir. 1995); Strickland v. Washington, 466 U.S. 668 (1984). In order to
prevail on a claim of ineffective assistance of counsel, a petitioner must
demonstrate that counsel's performance fell below an objective standard
of reasonableness and that the deficient performance so prejudiced the
petitioner's defense that it deprived him of a fair trial. See
Strickland, 466 U.S. at 688-94. The court should:
evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the
wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that,
under the circumstances, the challenged action "might
sound trial strategy." See Strickland,
466 U.S. at 689 quoting Michel v. Louisiana, 350 U.S. 91,
In the context of a guilty plea, a petitioner must show two things.
First, a petitioner must present evidence of counsel's unreasonable
performance. The second requirement, or "prejudice," requirement
focuses on whether counsel's constitutionally
ineffective performance affected the outcome of the
plea process. In other words, in order to satisfy the
"prejudice" requirement, the defendant must show that
there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985). Both the Supreme Court and the
Seventh Circuit have recommended that if it is easier to dispose of the
ineffective assistance claim on the prejudice prong of the Strickland
test, that prong should be addressed first. Such a course of action
would obviate the need to rule on the more difficult and elusive
performance question. Strickland, 466 U.S. at 697; United States ex rel.
Cross v. DeRobertis, 811 F.2d 1008, 1014 (7th Cir. 1987).
A. Counsel did not Object to the Government's Method of Disclosure
First, Petitioner alleges that his counsel was ineffective in that he
did not object when the Government failed to file an information as
required by 21 U.S.C. § 851. The Seventh Circuit addressed
Petitioner's claim on direct review and held that § 851 is satisfied
when the required information is disclosed in a written plea agreement.
Lawuary, 211 F.3d at 377. Therefore, Petitioner's counsel was not
ineffective for having failed to object to the Government's method of
B. Counsel Failed to Assist Petitioner Maintain his Not Guilty Plea
Second, Petitioner alleges that his attorney w as ineffective in
assisting him maintain his not guilty plea. Petitioner argues that his
attorney had, "the affirmative duty to see to it that if the Movant
desired a trial on the merits of the case, that he received one.
Instead, counsel capitulated to the entreaties of the Court and the
government to proceed with the change of plea, rather than terminating
It is obvious from reading the transcript of the change of plea hearing
that Petitioner did not actually want a trial — he wanted an
opportunity to contest the validity of his prior drug convictions.*fn8
Once this desire was made known, the Court, Petitioner's counsel, and the
Assistant United States Attorney addressed the issue. Mr. Risley informed
the Court that Petitioner's counsel had carefully crafted the plea
agreement to allow Petitioner to contest the validity of his prior
convictions. The Court reassured Petitioner that he would have an
opportunity to address his concerns before sentencing and that just by
pleading guilty, Petitioner was not admitting that those prior convictions
were valid. After just moments of discussion, Petitioner changed his
mind and informed the Court that he wanted to continue with the change of
plea hearing and to submit a guilty plea to Count 2.*fn9
earlier, voluntary responses made by a defendant
when entering a guilty
plea are binding. United States v. Trussel, 961 F.2d 685
, 689 (7th Cir.
1992). There is a strong presumption that an accused's statements in
open court and under oath as to the voluntariness of a guilty plea are
true. Blackledge v. Allison, 431 U.S. 63
, 74, (1977); United States v.
Ellison, 835 F.2d 687
, 693 (7th Cir. 1987); Hardin v. Peters,
697 F. Supp. 329, 333 (N.D.Ill. 1988). Petitioner has presented
insufficient evidence to rebut the presumption that his plea of guilty
was voluntary. Counsel has no obligation to act in conflict with his
client's wishes and assist him plead not guilty when his client's intent
is to plead guilty. Accordingly, there is no evidence that Petitioner
has suffered prejudice as a result of counsel's alleged ineffective
C. Counsel Failed to Secure a Better Plea Agreement
Third, Petitioner asserts that his attorney failed to secure a better
plea agreement. Petitioner has not satisfied the two prongs of the
Strickland test. Petitioner does not point to any authority holding that
the failure of counsel to negotiate a different or better plea agreement
amounts to a deviation from reasonable professional assistance. The
Court has not found any such authority in its own research. The failure
to negotiate a different plea agreement should instead be characterized
as trial strategy that does not constitute ineffective assistance of
counsel. See United States v. Calderon, 163 F.3d 644, 646 (D.C. Cir.
1999) (holding that counsel's decision regarding the details of a plea
agreement are "well within the realm of valid strategic decisions of
competent counsel"). Therefore, counsel's failure to secure a better
plea agreement does not rise to the level of ineffective assistance of
counsel in violation of the Sixth Amendment.
D. Counsel Failed to Investigate the Validity of Petitioner's
Fourth, Petitioner argues counsel was ineffective in researching the
validity of the Petitioner's prior convictions, specifically, his
conviction in state case no. 93-CF-789. In Daniels v. United States,
532 U.S. 374 (2001), the Supreme Court stated that habeas relief is not
available to petitioners who challenge a fully expired conviction used to
enhance a subsequent sentence in a petition brought under
28 U.S.C. § 2255. See Daniels, 532 U.S. at 382. The Supreme Court
held that "the presumption of validity that attached to the prior
conviction at the time of sentencing is conclusive, and the defendant may
not collaterally attack his prior conviction through a motion under
§ 2255." Id. This general rule applies unless the challenged
conviction was allegedly obtained in violation of the Sixth Amendment
right to counsel. Id; see Gideon v. Wainwright, 372 U.S. 335 (1963).
The purpose of such a ruling is to protect the finality of convictions
and to ease administration. See Lackawanna County Dist. Attorney v.
Coss, 532 U.S. 394, 402 (2001).
Petitioner has not alleged that his state court conviction was obtained
in violation of his right to counsel. Instead he claims that he did not
know that the crime required knowing possession, that there was no
factual basis for his guilty plea, and that he was factually innocent of
the charges. Because Petitioner has failed to allege a violation of
Gideon v. Wainwright, his attempt to invalidate his prior
conviction must fail. See Daniels, 532 U.S. at 382.
VII. Miscellaneous Grounds
In Petitioner's petition, he alleges several more reasons why his
conviction should be set aside. Petitioner appears to abandon these
claims because they are not mentioned in the memorandum in support.
Regardless, the Court will address these allegations.
First, Petitioner alleges that 21 U.S.C. § 851 is unconstitutional
as it precludes the Petitioner from challenging the validity of prior
drug convictions which occurred more than five years before the date the
information was filed. Both of Petitioner's prior drug convictions
became final less than five years before the information was filed on
March 9, 1998. Therefore, this statute does not affect Petitioner's
current conviction or sentence.
Second, Petitioner alleges that the Court was deprived of jurisdiction
when it failed to advise him that he had a right to challenge the
convictions upon which the Government was relying to enhance his
sentence. See 21 U.S.C. § 851(b). The change of plea hearing
transcript clearly contradicts Petitioner's allegation. The Court
specifically told Petitioner that he could challenge his prior
convictions.*fn10 Petitioner's allegation is without merit.
Lastly, Petitioner asserts that his counsel was ineffective for failing
to attack the constitutionality of 21 U.S.C. § 841(b)(1)(A) and
21 U.S.C. § 851. As discussed earlier, neither of these statutes are
unconstitutional so failing to pursue such an argument will not be
considered ineffective assistance of counsel.
Ergo, Petitioner's § 2255 Petition is DENIED.