Anderson, Plaze E. v. United States , 242 F. App'x 352 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 25, 2007*
Decided July 25, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 06-3887
PLAZE E. ANDERSON, Appeal from the United States District
Petitioner-Appellant, Court for the Eastern District of
Wisconsin
v.
No. 04-C-267
UNITED STATES OF AMERICA,
Respondent-Appellee. Rudolph T. Randa,
Chief Judge.
ORDER
Plaze Anderson was convicted of conspiracy to distribute crack cocaine, see 21
U.S.C. §§ 846, 841(a)(1), and was sentenced to life imprisonment. After his
conviction and sentence were affirmed on direct appeal, United States v. Anderson,
303 F.3d 847 (7th Cir. 2002), he filed a motion for collateral relief pursuant to 28
U.S.C. § 2255, which was denied. The district court granted a certificate of
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-3887 Page 2
appealability on one claim only. Anderson requests that we expand that certificate
to include additional claims, but we already have declined to expand the certificate
of appealability. See Anderson v. United States, No. 06-3887 (7th Cir. Mar. 28,
2007). We affirm the denial of Anderson’s § 2255 motion.
Anderson’s initial § 2255 motion, which was filed in March 2004, included the
single claim that trial counsel was ineffective because he failed to raise available
defenses, object to improper remarks by the prosecutor during closing argument, or
object to the sentencing court’s calculation of the quantity of crack cocaine involved
in the offense. Anderson filed a motion to amend, which was granted, adding a
claim that the sentencing court erred by calculating his offense level under the
sentencing guidelines based on facts that were not decided by the jury. Anderson
then filed two more motions to amend, one that would add a claim based on Blakely
v. Washington, 542 U.S. 296 (2004), and the other to expand the ineffective-
assistance claim to include the additional theory that appellate counsel was
deficient for not raising on direct appeal a claim based upon Apprendi v. New
Jersey, 530 U.S. 466 (2000).
In a single decision the district court denied all relief. The court refused
Anderson’s request to add a claim based on Blakely because that decision already
was encompassed by the amendment the court had permitted. The court also
refused Anderson’s request to expand his ineffective-assistance claim to include
appellate counsel. Finally, the court denied the § 2255 motion, reasoning that trial
counsel had a strategic reason for not asserting certain defenses and that counsel’s
failure to object to the prosecutor’s improper remarks at closing did not prejudice
Anderson in light of the overwhelming evidence of his guilt. The remaining claims
concerning sentencing were foreclosed, the court concluded, because Booker did not
apply retroactively. Anderson filed a request for a certificate of appealability, which
the district court granted only as to the claim of ineffective assistance of trial
counsel.
Anderson asserts that the district court erred by denying his claim of
ineffective assistance of trial counsel. When a district court denies a § 2255 motion,
we review fact findings for clear error and issues of law de novo. Bethel v. United
States, 458 F.3d 711, 716 (7th Cir. 2006). The framework for assessing claims of
ineffective assistance is set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, the defendant must prove: (1) that counsel’s performance fell
below “an objective standard of reasonableness,” id. at 688, and (2) “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” id. at 694. Our review of the first prong is
highly deferential and places the burden on the defendant to overcome the strong
presumption that the challenged action by counsel was sound trial strategy. See id.
at 689. To satisfy the second prong, the defendant must show that counsel’s errors
No. 06-3887 Page 3
“were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687.
Anderson first argues that his attorney was ineffective for failing to object to
improper statements by the prosecutor during closing arguments. We considered
these statements in detail on direct appeal in the context of Anderson’s
prosecutorial misconduct argument. See Anderson, 303 F.3d at 854-58. We
observed that one comment was improper and others collectively may have neared
or crossed the line. Id. at 856. But, we concluded, there was no reason to believe
the outcome of the trial would have been any different absent the comments
because of the tenor of the closing argument as a whole, the instructions to the jury
that closing arguments are not evidence, and the “overwhelming” evidence of
Anderson’s guilt. Id. at 857. Accordingly, Anderson cannot satisfy the second prong
of Strickland which requires him to demonstrate that he was prejudiced.
Anderson next argues that his counsel was ineffective for failing to object
under Apprendi to the imposition of a sentence that exceeds the default statutory
maximum of 20 years for cocaine offenses, see 21 U.S.C. § 841(b)(1)(C), based on a
factual question (the quantity of drugs) that was not decided by the jury. But
Anderson’s premise is false. The fact that he conspired to distribute 50 grams or
more of crack cocaine was alleged in the indictment, proven at trial, and set forth in
the jury’s verdict, and thus the district court complied with the requirements of
Apprendi. Accordingly, Anderson’s attorney was not deficient for failing to object to
his life sentence under Apprendi.
Finally, Anderson argues that his counsel was deficient for failing to object to
an upward adjustment under U.S.S.G. § 3C1.1 for obstruction of justice. Anderson
never raised this argument in the district court, and it is debatable whether he can
raise it now. Cf. Stevens v. McBride, No. 05-1442, 2007 WL 1732539, at *8 (7th Cir.
June 18, 2007) (holding that § 2254 petitioners must exhaust in state court “the
operative facts and the legal principles” governing each theory of ineffective
assistance). In any event, in his trial testimony Anderson denied having any
relationship with multiple individuals who testified that they participated with him
in the drug conspiracy, despite phone records showing that he made hundreds of
calls to those individuals over a short period of time. See Anderson, 303 F.3d at
857. This evidence alone provided a sufficient basis for the district court to find by
a preponderance of the evidence that Anderson had obstructed justice by lying
under oath. See United States v. Shearer, 479 F.3d 478, 484-85 (7th Cir. 2007).
Thus his attorney was not ineffective for failing to object to the upward adjustment.
Accordingly, Anderson’s implied motion to expand the certificate of
appealability is DENIED, and the denial of his § 2255 motion is AFFIRMED.