The opinion of the court was delivered by: Judge George W. Lindberg
MEMORANDUM OPINION AND ORDER
Before the Court is defendant Glenn D. Smith's motion to vacate, set aside, or correct sentence by a person in federal custody, pursuant to 28 U.S.C. § 2255. For the reasons stated below, defendant's motion is denied.
The evidence at trial*fn1 established that on May 6, 2005, a confidential informant ("CI") under the supervision of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") met with defendant. Before the meeting, ATF agents gave the CI $500 in buy money and outfitted him with a audio recorder and a transmitter. During the meeting, defendant sold the CI a plastic baggie containing a "rock like chunk substance" that a forensic scientist later identified as 10.9 grams of a mixture that included cocaine base.
During the meeting, the CI also asked defendant for a gun. Defendant responded that the CI would have to "come around [his] crib" to get it from defendant's "girl." Defendant described the gun to the CI as "a Mossberg," and stated that "[t]here's bullets and everything." Defendant told the CI that he was going to call his girl and tell her that the CI was going to come and get it. Defendant then made a call, in which he said, "Hey, hey babe. Hey, Mike gonna come and grab that . . . The, um, um, the, the, um, gun in the closet, in the front closet. In the pillow case." Defendant told the CI that "She gonna be at the entr . . . we in the, um, you know the one we at. All the way back . . . On the second floor." The CI then went to an apartment building at 6044 South Prairie Avenue in Chicago, and spoke with a woman there. Shortly thereafter, ATF agents observed the CI walking down the street with a large couch cushion balanced on his head. The agents recovered a loaded Mossberg shotgun from the cushion.
A jury convicted defendant of distributing five or more grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant was sentenced to concurrent 120- and 110-month prison terms.
Defendant filed a direct appeal, in which he argued that the evidence was insufficient to support his conviction for being a felon in possession of a firearm, and that his sentence for the drug charge violated the Fair Sentencing Act and the Eighth Amendment. See U.S. v. Smith, 413 Fed. Appx. 912, 914-15 (7th Cir. 2011). The Court of Appeals affirmed defendant's conviction and sentence on March 21, 2011. See id. at 915. Defendant filed the instant Section 2255 motion on December 28, 2011.
In his Section 2255 motion, defendant argues that: (1) the government failed to prove that defendant distributed crack cocaine, as charged in the indictment; (2) the trial court gave the jury instructions that improperly reduced the government's burden of proof; (3) the trial court improperly admitted the recording and transcript of the CI's conversation with defendant's alleged girlfriend; and (4) defendant was denied his right to a jury that reflected a fair cross-section of the community. He further argues that his appellate counsel provided ineffective assistance by failing to raise these issues on direct appeal.
Relief under Section 2255 is "an extraordinary remedy" that is available only when "the sentence was imposed in violation of the Constitution or laws of the United States, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." See Almonacid v. U.S., 476 F.3d 518, 521 (7th Cir. 2007); 28 U.S.C. § 2255(a).
In order to establish that his appellate counsel failed to provide effective assistance of counsel, defendant must show that his attorney's performance fell below an objective standard of reasonableness. See Strickland v. Washington,466 U.S. 668, 688 (1984). An appellate attorney's performance is constitutionally deficient only if he or she fails to raise a "significant and obvious" issue that is "clearly stronger" than the issues raised on appeal. Suggs v. U.S., 513 F.3d 675, 678 (7th Cir. 2008). Defendant must also show that but for his appellate counsel's deficient performance, there is a reasonable probability that the outcome of the appeal would have been different. See Strickland,466 U.S. at 694; Suggs, 513 F.3d at 678. "[C]counsel is not required to raise every non-frivolous issue on appeal." Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010).
A. Proof of Distribution of Crack Cocaine
Defendant first contends that the government failed to prove that he distributed crack cocaine (as opposed to powder cocaine), as charged in the indictment. At trial, the forensic chemist testified that the exhibit identified as the suspected drugs was a "light brown powder." However, the forensic chemist also testified that when he received the sample, it was in a "chunkier rock like form," and that after he separated a small portion out, he ground the larger portion up for testing. The chemist testified that since he first observed it, the smaller portion had "broken down some" and "become more of a powder," and explained that such a change can happen over time. The chemist testified that his analysis revealed that the sample contained cocaine base, procaine, phenacetin, and sodium bicarbonate. The chemist also testified that sodium bicarbonate is a common base that is used to convert cocaine hydrochloride (powder cocaine) to cocaine base, and that cocaine base is typically a cream to light brown color, and is in a chunky form rather than a powder. The forensic chemist was qualified to testify at trial as an expert, without objection by the defense.
ATF Special Agent Christopher Labno testified that when he received the substance from the CI, it was "more of a rock like chunk substance." Labno testified that based on his specialized experience, the substance appeared to be crack cocaine because of its off-white color and its chunky consistency (although by the time of trial it had been broken down into smaller pieces because it had been ground up). Labno testified that the substance differed from powder cocaine because it was "much more chunky" and "much darker."
The court finds that the government presented ample evidence that the substance defendant sold to the CI was a controlled substance, and more specifically that it was "mixtures and substances containing cocaine base in the form of crack cocaine," as charged in the superseding indictment. In addition, since this issue lacked merit, it was not "clearly stronger" than the issues raised on appeal, and appellate counsel's decision not to raise it was not prejudicial.
Next, defendant argues that the trial court erred when it gave the government's proposed jury instructions 16 and 20, which stated that it did not matter whether defendant knew the substance contained a particular type of controlled substance, and that it is sufficient that defendant knew that it was some kind of prohibited drug. Defendant argues that these instructions improperly reduced the government's burden of proof.
The court finds that these instructions were accurate statements of law. "[A]ctual knowledge of the identity of a drug is not an element of 21 U.S.C. § 841(a)." U.S. v. Barlow, 310 F.3d 1007, 1012 (7th Cir. 2002). Rather, "Section 841(a) requires only that the defendant know that he possesses a controlled substance; it does not require that he know the type of controlled substance he possesses." Id. Since these jury instructions were proper, appellate counsel did not provide ineffective assistance by electing not to challenge them on direct appeal.
C. Admission of Recording and Transcript
Defendant next argues that the trial court erred in admitting the recording and transcript of the conversation between the CI and defendant's alleged girlfriend. Defendant also argues that his appellate attorney's performance was ...