Pierce v. United States

2004 DNH 083

• Court: District Court, D. New Hampshire
• Decided: May 10, 2004
• Docket: CV-04-143-M
• Status: Published

Opinion

Pierce v. United States CV-04-143-M 05/10/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Keone Pierce, Petitioner

v. Civil No. 04-143-M Opinion No. 2004 DNH 083 United States of America, Defendant

O R D E R

Petitioner seeks relief under the provisions of 28 U.S.C.

§ 2255, claiming a variety of trial-related errors, including

ineffective assistance of both trial and appellate defense

counsel.

Petitioner says trial defense counsel provided ineffective

assistance by failing to reguest a jury instruction concerning

conspiracy with a government informant, and by failing to object

to an alleged sentencing error. There was no sentencing error;

petitioner was sentenced consistently with the applicable

criminal statutes and Sentencing Guidelines. He was sentenced to

a period of incarceration of 210 months for conspiring to

possess, with the intent to distribute, and to distribute the controlled substances cocaine and cocaine base, or "crack"

cocaine. That sentence was less than the maximum provided for

the offense of conviction (240 months), thus, no violation of the

rule set out in Apprendi v. New Jersey, 530 U.S. 466 (2000)

occurred. See 21 U.S.C. § 841(b)(1)(C). And, even assuming

counsel should have requested a jury instruction regarding

conspiracy with a government informant, his failure to do so did

not result in any prejudice to petitioner, given the extensive

evidence in the record supporting his guilt of the offense

charged.

In order to prevail on an ineffective assistance claim,

petitioner would have to show not only that counsel's performance

fell below an objective standard of reasonableness (and it did

not), but also that there is a reasonable probability that, but

for counsel's unprofessional error, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S.

668 (1984). Here, petitioner was not prejudiced by any

sentencing error, and even had counsel requested the instruction

described, the result of petitioner's trial would have been no

different.

2 Regarding petitioner's claim of appellate ineffective

assistance, it should be noted that appellate defense counsel

asked to withdraw from representing petitioner on grounds that

petitioner's direct appeal presented no meritorious issues. See

Anders v. California, 386 U.S. 738 (1967); 1st Cir. hoc. R.

46.4(a)(4). After reviewing both the record and the filed

briefs, the court of appeals agreed that no issue having an

arguable basis in law or fact was presented, and allowed counsel

to withdraw. See Judgment, No. 02-1093 (1st Cir. December 20,

2002). Nothing presented in this petition suggests that

appellate counsel's performance fell below an objective standard

of reasonableness, or that petitioner was prejudiced in some way

by appellate counsel's performance. Indeed, the appellate docket

reflects that petitioner filed his own separate brief on appeal.

He presumably raised all issues he thought worthy of pursuit,

without success.

The other issues petitioner raises are without merit.

3 Conclusion

The petition and the files and records of this case

conclusively show that petitioner is entitled to no relief.

Accordingly, the petition is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 10, 2 004

cc: Keone Pierce Peter E. Papps, Esg.