The opinion of the court was delivered by: JAMES MOODY, District Judge
Pending is petitioner's Motion to Vacate, Set Aside or Correct
Sentence filed pursuant to 28 U.S.C. § 2255. At the direction of
the Court, respondent United States submitted a response opposing
Petitioner's motion on October 3, 2005.
On June 5, 2002, petitioner and co-defendant Denise Lawrence
were charged in a single-count indictment with aiding and
abetting one another while knowingly and intentionally possessing
with intent to distribute more than 5 kilograms of cocaine in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Following a
March, 2003 jury trial, petitioner was found guilty of the count
charged in the indictment. His co-defendant was found not guilty.
On August 1, 2003, petitioner was sentenced to a term of 121
months imprisonment and five years of supervised release.
Petitioner filed a timely appeal of his conviction and the United
States Court of Appeals for the Eighth Circuit affirmed the
conviction on June 1, 2004.
Petitioner asserts the following two grounds for the requested
§ 2255 relief: (1) petitioner was denied due process under the
Fifth Amendment because the jury was not instructed that the
government must prove beyond a reasonable doubt every element of
the offense charged and (2) petitioner was denied the effective assistance of counsel at
trial and at the appellate level.
Petitioner's counsel did not object to the challenged
instruction at trial and petitioner did not bring this argument
in his direct appeal through different counsel.
Because petitioner did not challenge the instruction at trial
or on direct appeal, he may not obtain collateral relief under §
2255 unless he shows both "cause" excusing his double procedural
default and "actual prejudice." See United States v. Flynn,
87 F.3d 996, 999 (8th Cir. 1996) (citing United States v.
Frady, 456 U.S. 152, 168, 102 S.Ct. 1594, 1594-95,
71 L.Ed.2d 816 (1982)).
Petitioner contends that his counsel's failure at trial to
object to the challenged instruction and to preserve the error
for direct appeal, and his appellate counsel's failure to bring
the issue on direct appeal under a "plain error" standard
"[A] showing of ineffective assistance of counsel satisfies
both cause and prejudice." United States v. Apfel,
97 F.3d 1074, 1076 (8th Cir. 1996). Moreover, "[i]neffective
assistance of appellate counsel may constitute cause and
prejudice to overcome a procedural default." Becht v. United
States of America, 403 F.3d 541, 545 (8th Cir. 2005) (citing
Boysiewick v. Schriro, 179 F.3d 616, 619 (8th Cir. 1999)).
To establish a claim for ineffective assistance of counsel,
petitioner must show both that his counsel's performance was
deficient and that this deficient performance prejudiced the
outcome of the proceedings. See Strickland v. Washington,
466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Petitioner has failed to establish either of these factors.
The statute under which petitioner was charged states "it shall
be unlawful for any person knowingly or intentionally (1) to
manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance. . . ." 21 U.S.C. § 841(a)(1).
Petitioner was indicted for "knowingly and intentionally
possess[ing] with intent to distribute a mixture or substance
containing more than 5 kilograms of cocaine."
The jury instruction given by the Court at trial was Eighth
Circuit Model Instruction 6.21.84A. It states:
The crime of possession with intent to distribute
cocaine, as charged in Count One of the indictment
has three essential elements, which are:
One, the defendants were in possession of cocaine;
Two, the defendants knew that they were in possession
of cocaine; and Three, the defendants intended to
distribute some or all of the cocaine to another
For you to find the defendants guilty of the crime
charged under Count One, the Government must prove
all of these essential elements beyond a reasonable
doubt as to each defendant; otherwise you must find
that particular defendant not guilty of this crime.
Petitioner contends that while the indictment charged him with
both "knowingly and intentionally" possessing the cocaine, the
jury instruction only instructed the jury that in order to find
petitioner guilty it must find that he "knowingly" possessed
cocaine. He argues that the jury instruction is insufficient
because it did not instruct the jury that the government must
prove that he "intentionally" possessed the cocaine.
"When . . . a statute `is worded in the disjunctive . . .,
federal pleading requires that an indictment charge in the
conjunctive to inform the accused fully of the charges . . .'.
However, it is appropriate for the district court to instruct the
jury in the disjunctive form used in the statute, because
`[p]roof of any one of the violations charged conjunctively in
the indictment will sustain a conviction.'" United States v.
Urkevich, 408 ...