The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AMD ORDER
Petitioner Reuben Hughes ("Hughes"), pro se, petitions the Court
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For
the following reasons, his petition is denied.
In June 1998, Hughes was convicted on five counts of trafficking
cocaine and cocaine base, and one count of illegal firearms possession.
Following an evidentiary hearing concerning the amount of cocaine base
processed by Hughes' organization, the Court sentenced him to life
imprisonment on each of the five drug trafficking charges (Counts One
through Five). The Court also sentenced Hughes to 10 years on the
firearms violation (Count Six).
On appeal, the Seventh Circuit affirmed Hughes' conviction and
sentence, Hughes petitioned the United States Supreme Court for
a Writ of Certiorari. On November 6, 2000, the Supreme Court
granted his petition and remanded to the Seventh Circuit "for further
consideration in light of Apprendi v. New Jersey,
530 U.S. 466 (2000)." Hughes v. United States, 531 U.S. 975 (2000),
In February 2001, the Seventh Circuit affirmed Hughes' conviction and
sentence on all Counts except Counts Three and Four, and remanded to this
Court for re-sentencing. As Hughes still faced life sentences stemming
from Counts One, Two, and Five, the government moved to dismiss Counts
Three and Four, and this Court granted the government's motion. On June
14, 2001, the Seventh Circuit dismissed Hughes' appeal for lack of
jurisdiction. On March 18, 2002, the Supreme Court denied Hughes'
petition for Writ of Certiorari.
On March 18, 2003r Hughes filed his § 2225 petition. On June 27,
2003, Hughes filed for permission to amend his petition, and the Court
granted his request.
Hughes' amended petition asserts eight claims which Hughes believes
entitles him to relief under § 2255: 1) the government relied on
false testimony by witness Joseph Nixon ("Nixon"); 2) Hughes' trial
counsel proved constitutionally ineffective in his handling of the
allegedly false testimony; 3) Hughes' trial counsel proved
constitutionally ineffective by not raising the issue of the allegedly
false testimony in a post-trial motion; 4) Hughes' appellate counsel
provided ineffective assistance of counsel by not raising trial
counsel's ineffectiveness; 5) the Court erred by using the preponderance
of the evidence standard to determine
Hughes' drug quantities, in violation of the Apprendi
rule; 6) Hughes' appellate counsel proved constitutionally ineffective
in failing to raise Apprendi upon direct appeal; 7) the Court erred by
not conducting a 21 U.S.C. § 851 (b) colloquy prior to enhancing
sentence and 8) trial counsel proved ineffective by not objecting to
the defective § 851 inquiry.
A. Joseph Nixon's allegedly false testimony
To obtain habeas corpus relief based on perjured testimony, a
petitioner must, show: 1) that the prosecution presented perjured
testimony, (2) that the prosecution knew or should have known of the
perjury, and (3) that some likelihood exists that the false testimony
impacted the jury's verdict. Harding v. Walls, 300 F.3d 824, 828 (7th Cir.
2002). The Court "does not employ the term of perjury in its technical,
legal sense in these types of cases." Shasteen v. Saver,
252 F.3d 929, 933 (7th Cir. 2001). Rather, it is "enough that the jury was
likely to understand the witness to have said something that was, as the
prosecution knew, false." Id. (internal citations omitted).
However, "mere inconsistencies in testimony by government witnesses do
not establish the government's knowing use of false testimony."
Id. (internal citations omitted).
Hughes cites two instances in which he claims the prosecution knowingly
and willfully used false testimony by witness Nixon. First, Hughes points
out that Nixon initially testified that a
singular transaction occurred in late 1993, but later stated that
it happened in October 1994, Since a specific transaction can occur only
once, Hughes contends that Nixon's testimony regarding one of these dates
must be false. Second, Hughes argues that Nixon falsely testified that he
chose to testify only because Hughes signed a statement implicating him.
As both Hughes and the government acknowledge, no such statement exists.
Ergo, Hughes notes that Nixon's testimony concerning this alleged
statement must also be false.
Given the above evidence, Hughes fails even the first, part of this
test. While it is true that Nixon may have incorrectly recounted the
details of specific events, it is not true that "the jury was likely to
understand the witness to have said something that was . . . false,"
After all, the prosecution did not hide the minor inconsistencies within
Nixon's testimony. It was the prosecution that elicited Nixon's
inconsistent testimony regarding the transaction that occurred in either
1993 or 1994 thereby placing both versions of the story before
the jury. Similarly, Hughes' expansive discovery revealed that Hughes
never signed a statement implicating Nixon and Hughes' counsel
used the statement's nonexistence when attempting to impeach Nixon on
cross-examination. Consequently, Hughes' claims concerning prosecutorial
use of false testimony must therefore be denied.
Since Nixon's testimony did not reach a problematic level of falsity,
neither Hughes' trial nor appeal counsel can be faulted in their handling
of this testimony. Accordingly, Hughes' ineffective assistance of counsel
claims concerning this allegedly false testimony also fail,
Upon remand from the Supreme Court, the Seventh Circuit conducted an
Apprendi based review of Hughes' sentence. With respect to Counts
One, Two, and Five, the Seventh Circuit found that, although this Court
committed clear error in sentencing Hughes, its error failed to prejudice
the defendant. Conversely, ...