                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0842n.06
                             Filed: October 12, 2005

                                             No. 04-3340

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


MICHAEL GOLDSBY,                                           )
                                                           )         ON APPEAL FROM THE
       Petitioner-Appellant,                               )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE
v.                                                         )         NORTHERN DISTRICT OF
                                                           )         OHIO
UNITED STATES OF AMERICA,                                  )
                                                           )                            OPINION
       Respondent-Appellee.                                )



BEFORE:         NELSON and SUTTON, Circuit Judges; ZATKOFF, District Judge*

       Lawrence P. Zatkoff, District Judge. Petitioner-Appellant Goldsby appeals the district

court’s denial of his motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence

of 360 months, which was imposed after a jury found him guilty of possession of cocaine base, in

violation of 21 U.S.C. § 841. Goldsby claims that he did not receive effective assistance of counsel,

his case should have been severed from his co-defendants, he was improperly labeled a career

offender during sentencing, and his conviction under Title 21 is void. For the following reasons,

we AFFIRM the judgment of the district court.

                                        I. BACKGROUND

A. Factual History



       *
       The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District
of Michigan, sitting by designation.
       On the morning of December 28, 1996, Officers Sulzer and Knapp of the Cleveland Police

Department saw Michael Goldsby standing outside a car with no shirt on and his pants around his

ankles, using a hat to wipe fecal matter from his groin. The officers told Goldsby to pull up his

pants and produce identification. They also observed a passenger in the car, whom they kept under

surveillance as they dealt with Goldsby. When Goldsby failed to produce identification, he was

searched for weapons and placed in the squad car. Officer Sulzer then approached the passenger,

a female, who was also unclothed and was unresponsive to questioning. Officer Sulzer observed

fecal matter on the seat and floor of the car. The woman was placed in the squad car with Goldsby,

where she eventually identified herself as Leah Batchler. The officers ran warrant checks on

Goldsby and Batchler. The search revealed no warrants for Ms. Batchler, who was allowed to leave.

However, the search for Goldsby revealed several outstanding contempt warrants for traffic

violations. The search also revealed that Goldsby had no driver’s license. The officers then arrested

Goldsby and arranged for the vehicle to be towed.

       Before the vehicle was towed, Officer Sulzer inventoried its contents and discovered a

cellular phone and black leather jacket in the driver’s seat. He asked Goldsby about the phone and

jacket, and Goldsby claimed them. After arriving at the police station, Sulzer searched the jacket

and found a plastic baggie containing 23 rocks of a hard white substance, later found to be 5.88

grams of cocaine base.

       During another drug arrest, a suspect made statements implicating Goldsby in a drug ring.

Goldsby was indicted by a federal grand jury along with several other defendants and charged with

conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 (Count




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1), and possession with intent to distribute 5.88 grams of cocaine base, in violation of 21 U.S.C. §

841 (Count 2). On August 28, 1997, Goldsby was convicted of both counts.



B. Procedural History

       Goldsby appealed his conviction to this Court, claiming the evidence was insufficient to

support the conviction on either count. On January 4, 2000, this Court vacated the conspiracy

conviction, finding insufficient evidence. However, this Court found sufficient evidence to support

the possession with intent to distribute conviction. See United States v. Austin, No. 97-4386, 2000

U.S. App. LEXIS 201, *59 (6th Cir. 2000). On August 31, 2000, Goldsby was resentenced. As a

career offender under the U.S. Sentencing Guidelines, Goldsby was sentenced to 360 months of

incarceration, followed by eight years of supervised release. Goldsby appealed his sentence,

claiming that the Guidelines were applied incorrectly, the district court was unaware it could make

a downward departure, and his sentence violated the Eighth Amendment. This Court rejected

Goldsby’s claims and affirmed his sentence.

       On August 19, 2003, Goldsby filed a motion to vacate, set aside or correct his sentence,

pursuant to 28 U.S.C. § 2255. Goldsby claimed that he received ineffective assistance of counsel,

he was improperly tried with the other defendants on the conspiracy charge, and two of the prior

convictions used to classify him as a career offender were invalid. Goldsby also claimed his

conviction was void due to Congress’s failure to enact Title 21 into positive law, i.e. ratify its

language of codification in the United States Code. On January 26, 2004, the district court denied

the motion without holding an evidentiary hearing. On February 9, 2004, Goldsby filed a Notice

of Appeal, and this Court issued a certificate of appealability on September 3, 2004.


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                                           II. ANALYSIS

A. Standard of Review

        When reviewing a district court’s denial of a § 2255 motion, the appellate court reviews legal

conclusions de novo and factual findings for clear error. Regalado v. United States, 334 F.3d 520,

523-24 (6th Cir. 2003). A district court’s decision to not hold an evidentiary hearing is reviewed

for abuse of discretion. Williams v. Bagley, 380 F.3d 932, 977 (6th Cir. 2004). The burden is on

the habeas petitioner to prove his case by a preponderance of the evidence. Ashley v. United States,

17 Fed. Appx. 306, 308 (6th Cir. 2001).

B. Ineffective Assistance of Counsel

        To succeed on an ineffective assistance of counsel claim, the petitioner must meet both

prongs of the Strickland test. Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). The first prong

requires the petitioner to “show that counsel's representation fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). The second prong requires

petitioner to “show 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. The test is stringent: “‘[t]he

reviewing court’s scrutiny of counsel’s performance is highly deferential,’ and ‘counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.’” Carson v. United States, 3 Fed. Appx. 321, 324 (6th Cir. 2001)

(citations omitted). The petitioner must prove that his counsel was so “thoroughly ineffective that

defeat was ‘snatched from the jaws of victory.’” Thelen v. United States, 131 Fed. Appx. 61, 63 (6th

Cir. 2005) (citation omitted). Goldsby claims he received ineffective assistance of counsel for the

five reasons discussed below. He also claims that the district court erred in not holding an


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evidentiary hearing.

       1. Failure to Investigate and Call a Defense Witness

       Goldsby claims that counsel was ineffective for failing to investigate and call Ms. Batchler

as a defense witness. Goldsby suggests that Ms. Batchler placed the drugs in his jacket pocket when

he was being taken to the squad car. To succeed on this claim, Goldsby must demonstrate it was

objectively unreasonable for counsel to not investigate and call Ms. Batchler as a witness, and that

the result of his trial would have been different absent this error.

       Defense attorneys do not have an absolute duty to investigate. The Strickland Court held that

counsel could discharge the duty to investigate with “a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691. This Court has noted that:

       While the temptation to rely on hindsight is particularly strong in the context of
       ineffective assistance claims based on counsel’s failure to investigate, the court must
       conclude that counsel’s strategic choices made after less than complete investigation
       are not constitutionally deficient if a reasonable professional judgment supports the
       limitations on investigation.

Carson, 3 Fed. Appx. at 324. It is highly unlikely that the testimony of Ms. Batchler would have

aided Goldsby. In order to provide helpful testimony, Ms. Batchler would have had to incriminate

herself, an improbable scenario. It is far more likely that Ms. Batchler would have supported the

Government’s contention, that the drugs were Goldsby’s. Thus, calling Ms. Batchler as a witness

would in all likelihood have been positively harmful to Goldsby’s case.             In addition, the

circumstances of the encounter with the police make it unlikely she could have planted the drugs,

as she was under surveillance while the police dealt with Goldsby. J.A. at 179. Given these facts,

and the deference given to counsel’s judgment, it was a reasonable decision to forego an

investigation of Ms. Batchler, and spend the time on more promising avenues of investigation. In


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cases where this Court has found a failure to investigate was objectively unreasonable, the apparent

value of the witness was far greater than in this case. For example, in Towns, the potential witness

had told police that someone other than the defendant had committed the crime. Towns, 395 F.3d

at 253. Thus, it was ineffective assistance for counsel to fail to meet with the witness. In contrast,

in the current case there is nothing that would have led counsel to believe that Ms. Batchler would

be a promising avenue of investigation. Given the deferential standard applied to counsel’s

decisions, his failure to investigate and call Ms. Batchler as a witness was not objectively

unreasonable.

       In addition, Goldsby cannot meet the second prong of the Strickland test. To meet the

second prong, Goldsby must show prejudice, i.e. that the outcome would have been different but for

his counsel’s ineffective assistance. Even if counsel’s performance was deficient, relief will not be

granted unless petitioner was actually prejudiced. Harbison v. Bell, 408 F.3d 823, 830 (6th Cir.

2005). Bare allegations of prejudice are not sufficient; the petitioner must produce enough evidence

to demonstrate a reasonable probability that the outcome would have been different. In Carson, this

Court denied habeas relief, since although the petitioner claimed counsel should have conducted

interviews and called certain witnesses to provide an alibi, he did not provide any evidence

regarding the witnesses. Carson, 3 Fed. Appx. at 324. In contrast, in a case where this Court did

find prejudice, the petitioner produced a deposition of the witness showing the witness possessed

information that would have been useful at trial. Clark v. Redman, No. 86-2050, 1988 U.S. App.

LEXIS 17616, *3 (6th Cir. 1988). Goldsby’s case is much more similar to Carson. Goldsby has

produced no evidence showing that Ms. Batchler’s testimony would have been favorable to him.

In fact, as discussed above, in all likelihood her testimony would have been unfavorable. Since


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Goldsby has produced no evidence creating a reasonable probability that the outcome of his trial

would have been different but for counsel’s alleged ineffective assistance, he cannot prevail on this

claim. Since the record conclusively shows Goldsby is not entitled to relief, it was not error for the

district court to refuse to hold an evidentiary hearing. Carson, 3 Fed. Appx. at 324.

       2. Advice Regarding Sentencing and a Plea Offer

       Goldsby claims counsel informed him that he faced a sentence of 10 to 15 years whether he

pled guilty or went to trial.1 In addition, Goldsby claims counsel failed to inform him that he could

raise defenses at sentencing if he accepted a plea. Goldsby claimed that those representations caused

him to forego pursuing a plea. Thus, he claims he received ineffective assistance of counsel, and

the district court erred by not holding an evidentiary hearing.

       Assuming that providing incorrect sentencing information was objectively unreasonable,

Goldsby’s claim fails because, as above, he cannot show prejudice. Goldsby has produced no

evidence that the Government offered him a plea, was considering offering him a plea, or that he

would have accepted a plea had one been offered. In cases where this Court has found ineffective

assistance based on erroneous advice or a failure to inform, a deal was on the table. See Smith v.

United States, 348 F.3d 545 (6th Cir. 2003); Griffin v. United States, 330 F.3d 733 (6th Cir. 2003).

       In contrast, in a case where an ineffective assistance claim based on improper sentencing

information was rejected, this Court noted the trial court had found there was no prejudice because

there was no plea offer to accept. Moss v. United States, 323 F.3d 445, 467 (6th Cir. 2003). On

appeal, the Moss petitioner argued that the prejudice standard should be lowered because counsel

had a conflict of interest. This Court agreed that “the non-existence of a plea offer does not preclude


       1
        Goldsby’s actual sentence was 360 months.

                                                  7
the court from inquiring into whether the conflict of interest adversely affected counsel’s ability to

explore plea negotiations with the government.” Id. at 468. However, even in the conflict situation,

the Court required “that the petitioner must demonstrate that the government was willing to accept

or extend an invitation to plea negotiations.” Id. (emphasis added). In the current case, Goldsby has

not only failed to demonstrate the existence of a plea offer, he has failed to demonstrate that the

government was willing to engage in plea negotiations. Thus, he cannot demonstrate prejudice.

Since Goldsby put forth no evidence to consider, the district court did not err by not holding an

evidentiary hearing.

        3. Failure to Instruct the Jury on Goldsby’s Right Not to Testify

        Goldsby claims he suffered ineffective assistance of counsel because the jury was not

instructed that it could not use his failure to testify against him. However, the Tenth Circuit has held

that “whether to request a particular instruction is within an attorney's tactical discretion” and

“attorneys often decide not to request such an instruction because it calls attention to the defendant's

silence. We do not find it improper that [the defendant’s] attorney failed to request this instruction.”

Coleman v. Brown, 802 F.2d 1227, 1235 (10th Cir. 1986). In addition, this Court has specifically

held that it was not ineffective assistance of counsel when the defendant’s attorney did not object

to the court’s failure to give a jury instruction on the defendant’s right not to testify, since “counsel’s

performance fell within the range of reasonable professional assistance.” Lewis v. Sowders, No. 93-

5325, 1993 U.S. App. LEXIS 25112, *4 (6th Cir. 1993). While it is conceivable that in some

particular circumstances a defendant could be prejudiced by a failure to give jury instructions

regarding his right not to testify, Goldsby has failed to produce any evidence showing that he

suffered prejudice. Thus, this claim was properly rejected.


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       4. Failure to Object to Use of “Crack” Instead of “Cocaine Base”

       Goldsby argues that he received ineffective assistance of counsel because counsel failed to

object to the government’s interchangeable use of the terms “cocaine base” and “crack.” Goldsby

claims that use of the term “crack” was impermissible because the lab report did not show the drugs

in question to be crack. The district court correctly dismissed this claim as frivolous. The court

noted that cocaine base and crack “are one and the same in criminal law.” J.A. at 89. Strictly

speaking, crack is a particular type of cocaine base, but for purposes of the sentencing guidelines,

“cocaine base” means “crack.” United States v. Owusu, 199 F.3d 329, 339 (6th Cir. 2000). In

addition, Goldsby’s contention that the lab report did not show the drugs to be crack needs an

important qualification. The lab report didn’t indicate that the drugs were not crack, it merely

indicated they were cocaine base. J.A. at 67. Crack cocaine usually appears in a “lumpy, rocklike

form.” Owusu, 199 F.3d at 339. Since the cocaine base in question met that description, it is

possible that it was in fact crack. In any event, Goldby has not produced any evidence showing he

was prejudiced by the interchangeable use of the terms. Thus, the claim was properly denied as

frivolous.

       5. Failure to Argue State Law Preemption

        Goldsby’s final argument regarding his ineffective assistance of counsel claim is that

counsel should have filed a motion to dismiss based on state law preemption. The district court

properly dismissed this claim as frivolous. It is true that 21 U.S.C § 903 states that Congress did not

intend to “occupy the field” of drug enforcement to the exclusion of the states. However, this

merely means that states may pass drug laws alongside Congress, not that the federal government

is impotent to prosecute drug offenders when state laws are in place. See United States v. Love, 59


                                                  9
Fed. Appx. 513, 514 (4th Cir. 2003) (“21 U.S.C. § 903 does not deprive the federal government from

criminalizing drug crimes proscribed by states, and [petitioner’s] claim is therefore meritless.”).

Failing to file a frivolous motion does not constitute ineffective assistance of counsel; thus, this

claim was properly denied.

C. Prejudicial Misjoinder

       Goldsby argues that his possession count should not have been tried with his conspiracy

count, especially given that his conspiracy conviction was vacated for insufficient evidence.

Goldsby argues that evidence regarding the conspiracy had the potential to confuse the jury, and that

“[h]aving lost their way on [the conspiracy count], the jury could have easily lost its way on the

possession count.” Appellant’s Brief at 23.

       However, as noted by the Government, Goldsby did not raise this issue on direct appeal. The

Supreme Court has noted that “[o]ur trial and appellate procedures are not so unreliable that we may

not afford their completed operation any binding effect beyond the next in a series of endless

postconviction collateral attacks. To the contrary, a final judgment commands respect.” United

States v. Frady, 456 U.S. 152, 164-65 (1982). In keeping with that sentiment, this Court has noted

that a habeas petition “is not a substitute for a direct appeal, and thus a defendant cannot use it to

circumvent the direct appeal process.” Regalado, 334 F.3d at 528. Thus, when claims are not

presented during direct appeal, they may not be raised in a habeas petition unless the petitioner

establishes cause and prejudice, or actual innocence. Id. The cause and prejudice standard is

stringent; the Supreme Court has noted “the well-settled principle that to obtain collateral relief a

prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Frady, 456 U.S.

at 166. To demonstrate prejudice, the petitioner “must shoulder the burden of showing, not merely


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that the errors at his trial created a possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at

170.

        Since Goldsby has not made a showing of actual innocence, he must meet the cause and

prejudice standard. However, he is unable to do this. First, Goldsby has not made any showing

regarding the cause of his failure to raise the joinder issue during direct appeal. Second, Goldsby

cannot demonstrate prejudice. This Court specifically held that the evidence against Goldsby was

sufficient to support the possession charge. United States v. Austin, No. 97-4386, 2000 U.S. App.

LEXIS 201, *59 (6th Cir. 2000). This Court considered a similar case in United States v. Sims, 46

Fed. Appx. 807 (6th Cir. 2002). The defendant claimed, on direct appeal, that the “prejudicial

spillover from the insufficient evidence for Counts Three and Four subjected him to retroactive

misjoinder.” Id. at 813. However, this Court held that since there was sufficient evidence to support

the defendant’s conviction, his misjoinder claim was moot. Id. Likewise, since this Court held there

was sufficient evidence to support Goldsby’s conviction, Goldsby cannot demonstrate prejudice.

        Even if the Court were to consider the merits of the joinder claim, it would fail. Goldsby was

properly indicted with the other defendants. When defendants are “alleged to have participated in

the same act or transaction, or in the same series of acts or the same series of acts or transactions”

such defendants may be named in the same indictment. Fed. R. Crim. P. 8(b). Furthermore, this

Court has held that “[a]s a general rule, persons jointly indicted should be tried together . . . the jury

must be presumed capable of sorting out the evidence and considering the cases of each defendant

separately.” Murr v. United States, 200 F.3d 895, 903-04 (6th Cir. 2000) (citations omitted). Claims

of retroactive, or prejudicial misjoinder only succeed when “the defendant makes a showing of


                                                   11
compelling prejudice” or “the prosecutor acted in bad faith in bringing the initial conspiracy

charge.” United States v. Warner, 690 F.2d 545, 554 (6th Cir. 1982). The burden of showing

prejudice is “very heavy,” and “[a] defendant is not entitled to severance merely because he might

have had a better chance of acquittal in a separate trial.” Stanford v. Parker, 266 F.3d 442, 458 (6th

Cir. 2001). Goldsby has not met this heavy burden; he merely alleges that “the jury could have

easily lost its way on the possession count.” Goldsby cannot demonstrate prejudice, especially since

this Court found there was sufficient evidence to sustain the possession conviction. Furthermore,

Goldsby has made no showing that the Government acted in bad faith. Thus, Goldsby’s misjoinder

claim fails on all grounds.

D. Classification as a Career Offender

       Goldsby claims that he was constructively denied counsel during two of his prior state

convictions; thus they were invalid and improperly used to classify him as a career offender. He

argues that based on this claim the district court erred in not holding an evidentiary hearing. This

argument, however, is without merit.

       The district court is not required to hold an evidentiary hearing when the record conclusively

shows petitioner is not entitled to relief. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).

Since Goldsby did not raise this issue on direct appeal, the cause and prejudice standard discussed

above applies. Goldsby has not made any showing regarding a cause for his failure to raise this

issue on direct appeal, and he also cannot show prejudice.

       The Supreme Court has held that a defendant may not collaterally attack prior state

convictions during a federal sentencing hearing. Custis v. United States, 511 U.S. 485, 497 (1994).

The proper approach is to challenge prior convictions through state channels, or in a separate federal


                                                  12
habeas proceeding. Id. The only exception recognized in Custis was when a defendant was

completely denied his right to counsel in the prior trial. Id. at 496. As noted by the Government and

the district court, Goldsby was represented by counsel in each prior drug conviction. J.A. at 207-10.

         Goldsby claims that he was constructively denied counsel in two of the prior cases and did

not “knowingly, voluntarily, and intelligently” enter guilty pleas. This is strikingly similar to the

situation in Custis, where the defendant claimed ineffective assistance of counsel, and that his guilty

plea was not “knowing and intelligent.” Custis, 511 U.S. at 496. The Court held that “[n]one of

these alleged constitutional violations rises to the level of a jurisdictional defect resulting from the

failure to appoint counsel at all.” Id. Thus, since Goldbsy cannot show that he was not appointed

counsel, his collateral attack must fail.

         In addition, Goldsby’s claim that he was constructively denied assistance of counsel is too

vague to warrant an evidentiary hearing. Goldsby has provided no specifics as to how he was

constructively denied assistance of counsel. The Sixth Circuit has held that:

         [T]he burden on the petitioner in a habeas case for establishing an entitlement to an
         evidentiary hearing is relatively light. However, it would be nonsensical to conclude
         that the petitioner could meet that burden simply by proclaiming his innocence. [The
         petitioner’s] affidavit contains nothing to indicate that his counsel’s performance was
         constitutionally infirm; therefore, the district court did not err in refusing to conduct
         an evidentiary hearing.

Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999). In this case, Goldsby did nothing more

than proclaim that he had been constructively denied assistance of counsel. This bare allegation was

not sufficient to warrant an evidentiary hearing, and the district court properly denied relief on this

claim.

E. Validity of Title 21

         Goldsby argues that since Congress has not enacted Title 21 into positive law, his conviction

                                                    13
under 21 U.S.C. § 841 is invalid. As the district court noted, this claim is frivolous.

        Goldsby is referring to the fact that Congress has not approved the specific placement of the

underlying legislation into Title 21 of the U.S. Code. However, this is by no means uncommon.

The process works as follows:

       To enact a statute into positive law, Congress must specifically approve the language
       of the codification. The Office of the Revision Counsel submits each individual title
       of the Code to Congress for enactment. When Congress enacts a title of the Code
       into positive law, it puts its authoritative imprimatur on the language appearing in
       that particular title of the Code. As of 1998, less than half the titles in the Code had
       been enacted into positive law.

Henriquez v. United States, No. 03-Civ-478, 2003 U.S. Dist. LEXIS 8931, 2 n.2 (S.D.N.Y. 2003)

(citations omitted). Congress’s failure to approve the specific placement of Title 21 does not affect

the validity of the underlying legislation. As the Tenth Circuit has noted, “the fact that Title 21 has

not yet been ‘revised, codified, and enacted into positive law’ in accordance with the legislative

agenda noted in the preface to the United States Code does not render the substantive law it records

a nullity.” Wilson v. United States, No. 90-6341, 1991 U.S. App. LEXIS 26092, *3-*4 (10th Cir.

1991). Thus, challenges on these grounds are frivolous. Id. at *2.

                                        IV. CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s denial of Goldsby’s motion

to vacate, set aside or correct his sentence.




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