In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2167

Watketa Valenzuela,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4596--George M. Marovich, Judge.

Argued February 26, 2001--Decided August 17, 2001


  Before Bauer, Posner, and Kanne, Circuit
Judges.

  Kanne, Circuit Judge. Watketa
Valenzuela, who was convicted of
conspiring to distribute cocaine and
cocaine base, filed a habeas corpus
petition alleging that he received
ineffective assistance of counsel at
sentencing in violation of the Sixth
Amendment. In his petition, Valenzuela
contends that his attorney failed to
properly challenge the government’s
evidence that the controlled substance in
question was crack cocaine rather than
powder cocaine or some other form of
cocaine base. The district court rejected
his petition, and he now appeals. Because
we agree with the district court’s
conclusion that Valenzuela failed to meet
both prongs of the Strickland test for
any of his claims, we affirm.

I.   History

  On March 10, 1997, Valenzuela entered
into an agreement with the government to
plead guilty to two counts of an eight-
count indictment. Count one charged that
he conspired to distribute cocaine and
cocaine base in violation of 21 U.S.C.
sec. 846;/1 count two alleged that he
hired and used persons under eighteen
years of age to violate 21 U.S.C.
sec.sec. 841(a)(1) and 846. At the plea
hearing, Valenzuela acknowledged that he
knew that he was charged with conspiracy
to deliver cocaine and rock cocaine. The
parties did not, however, reach an
agreement on the amount of cocaine and
cocaine base attributable to Valenzuela.

  On June 23, 1997, the district court
conducted a sentencing hearing for the
purpose of determining the amount of
drugs involved in the conspiracy. Because
the United States Sentencing Guidelines
provide for more severe penalties for
crimes involving crack cocaine than for
those involving powder cocaine, see United
States Sentencing Guidelines Manual sec.
2D1.1(c) (1998), the identity of the
controlled substances was also a critical
issue at sentencing. The government
presented several types of evidence to
demonstrate that Valenzuela dealt crack
as opposed to powder cocaine including:
(1) results of laboratory tests performed
on substances purchased from Valenzuela
and his associates which identified 34.78
grams of the 48.69 grams tested as crack
cocaine or cocaine in rock form; (2)
testimony of police officers Thomas
Richardson and Steven Wilson, who
participated in the investigation of
Valenzuela, in which they stated that
they were familiar with the differences
between crack and powder cocaine and that
all of the substances purchased from
Valenzuela appeared to be crack cocaine
with the exception of two purchases
totaling .44 grams; (3) transcripts of
recorded conversations in which
undercover officers asked dealers who
worked for Valenzuela for "rocks" and
"ready" and then purchased substances
which were later determined to be crack
cocaine; and (4) transcripts of a
recorded conversation in which Valenzuela
said that he didn’t "fuck with raw"
because "that shit be tricking one up."
During final arguments, Valenzuela’s
attorney conceded that fifty grams of
crack cocaine were attributable to
Valenzuela but argued that the government
had failed to show by a preponderance of
the evidence that Valenzuela was
responsible for amounts of crack cocaine
in excess of fifty grams. Valenzuela’s
attorney stated, "I think we can agree
that there was an operation that was
going on, that drugs were being sold. And
as it was put many times, it’s not hard
to conceive that over fifty grams of
crack cocaine was transferred or dealt
with over a seven-month period, so I
think that we need not speak about what
the bottom end is." Tr. of Sentencing
H’rg at 12. However, he went on to argue
that the government’s calculation that
Valenzuela was responsible for more than
fifty grams was inherently unreliable
because the government failed to present
photographs, video tapes, or other
corroborating evidence establishing the
scope of the conspiracy.

  After listening to all of the evidence
and hearing arguments from both parties,
the district court determined that the
government had established that the
controlled substances at issue consisted
mostly of crack cocaine. In announcing
his findings, the district judge
acknowledged that Valenzuela’s attorney
had conceded that Valenzuela was
responsible for fifty grams of crack. He
also stated that:

  So I know and I am convinced that we are
dealing with crack here. . . . Policemen
made hand-to-hand buys that, according to
them, resulted in the seizure of 61 grams
of crack. At least 40 grams of that
substance was both preliminarily tested
and confirmed to be crack. Whether you
want to be semantically correct about
whether they call it rock cocaine or
whether they call it crack, I am
convinced that that is what it was. And
to bolster my conclusion, I look upon
other things that I have heard. The
police officers who handled it said that
it is crack.

  . . . I know that cocaine comes in
bricks and it might be hard, but you sure
as hell can crumble it. I know that you
can’t do it with a rock.

  I know that on the transcripts people
are talking about dealing with ready and
crack and cooking. We have the words out
of Watketa’s mouth that that’s what he
deals with, he doesn’t screw around with
raw. . . .

  We have the testimony of the police
officers, we have the transcripts of
Watketa, we have the transcript of his
workers, and we have the lab reports, not
standing alone, but when you put them all
together . . . it is my opinion and I am
convinced that they are dealing with
crack.
Tr. of Sentencing H’rg at 25-26. On the
basis of its determination that
Valenzuela was responsible for 1.5
kilograms of crack cocaine, the district
court imposed a sentence of 360 months
imprisonment, ten years supervised
release, and a $12,000 fine.

  Valenzuela appealed, arguing that the
district court erred in finding that he
dealt crack cocaine as opposed to powder
cocaine or another form of cocaine base.
On appeal, the government contended that,
by conceding that fifty grams of crack
cocaine were attributable to Valenzuela,
Valenzuela’s attorney had waived
Valenzuela’s right to challenge the fact
that he dealt crack cocaine. See United
States v. Valenzuela, 150 F.3d 664, 668
(7th Cir. 1998). We agreed, noting that:

  Valenzuela’s counsel was not careful in
making his concession to the court. After
strenuously cross-examining the
Government’s witnesses in an effort to
show that the Government could not
establish that the cocaine was crack and
not another form of cocaine base,
Valenzuela conceded that he dealt fifty
grams of crack cocaine in one sentence.
While his motivation may have been an
effort to refrain from antagonizing the
court, Valenzuela’s counsel did not
preserve his right to appeal in making
his concession. Preserving this right
would not have been hard. All
Valenzuela’s counsel needed to say is
that he rests his argument based on the
testimony presented and his cross-
examination but would like to retain his
right to appeal this issue. Because he
did not use any limiting language in his
concession, we consider the statement to
be an admission that Valenzuela dealt
crack cocaine on appeal such that he
abandoned his right to challenge it on
appeal.

Id. We went on to clarify that, even   if
Valenzuela’s attorney had not waived   the
issue, there was sufficient evidence   to
support the district court’s finding   that
the substance in question was crack
cocaine:

  Even if we consider Valenzuela’s
counsel’s statements as an admission but
not a waiver of this issue, we find more
than sufficient evidence for the district
court to conclude that Valenzuela dealt
crack cocaine. Valenzuela admitted as
much on three separate occasions: (1) on
tape to the undercover officers when he
stated that he did not deal in powder
cocaine, (2) in person to the district
court when he agreed to the Government’s
description of his crime at the plea
hearing, and (3) through his counsel to
the district court at the close of the
sentencing hearing. These pieces of
evidence when combined with the police
officers’ observations of the drugs
purchased and the testimony about the
laboratory results are more than enough
for a district court to decide by a
preponderance of the evidence that
Valenzuela dealt crack cocaine.

Id.

  On July 13, 1999, Valenzuela filed a
petition for a writ of habeas corpus, see
28 U.S.C. sec. 2255, in which he asserted
that he had been denied effective
assistance of counsel at sentencing in
violation of the Sixth Amendment.
Thedistrict court denied his petition
because it found that Valenzuela’s
attorney’s performance was not
constitutionally deficient, and even if
it was, that Valenzuela had not shown
that he was prejudiced by his attorney’s
alleged errors. He now appeals.

II.   Analysis

  Valenzuela contends that his attorney
provided ineffective assistance of
counsel by: (1) admitting that fifty
grams of crack cocaine were attributable
to Valenzuela; (2) deciding not to
present expert testimony to challenge the
identification of the controlled
substance as crack cocaine; and (3)
failing to argue that the identity of the
controlled substance must be proved
beyond a reasonable doubt. We review the
district court’s findings of fact for
clear error and its legal determinations
de novo. See Fountain v. United States,
211 F.3d 429, 433 (7th Cir. 2000).

  To show a violation of the Sixth
Amendment right to effective assistance
of counsel, a defendant must show that
counsel’s performance fell below an
objective standard of reasonableness and
that counsel’s poor performance
prejudiced the outcome of the
proceedings. See United States v.
Williams, 106 F.3d 1362, 1367 (7th Cir.
1997) (citingStrickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)). Our examination of an
ineffectiveness of counsel claim is
"’highly deferential’ to counsel,
presuming reasonable judgment and
declining to second guess strategic
choices." Id. (quoting Strickland, 466
U.S. at 689). In order to determine
whether the defendant has met the
performance prong, we "consider the
reasonableness of counsel’s conduct in
the context of the case as a whole,
viewed at the time of the conduct, and
there is a strong presumption that any
decisions by counsel fall within a wide
range of reasonable trial strategies."
United States v. Lindsay, 157 F.3d 532,
535 (7th Cir. 1998). With respect to the
prejudice prong, the defendant must "be
able to demonstrate that the complained
of deficiency resulted in . . . [a]
’reasonable probability’ that in the
absence of error the result of the
proceedings would have been different,
and [that the proceeding] was
fundamentally unfair or unreliable."
Williams v. Washington, 59 F.3d 673, 682
(7th Cir. 1995) (quoting Strickland, 466
U.S. at 694).

A. Admission that Valenzuela Dealt Crack
Cocaine

  Valenzuela first argues that his
attorney’s performance was
constitutionally deficient because he
waived Valenzuela’s right to argue on
appeal that the controlled substances at
issue were not crack cocaine. Even if
Valenzuela is correct that it was
objectively unreasonable for his attorney
to concede that fifty grams of crack
cocaine were attributable to Valenzuela,
he still must show that but for his
attorney’s alleged error, there is a
reasonable probability that the outcome
of the proceeding would have been
different. See United States v. Jackson,
103 F.3d 561, 573 (7th Cir. 1996). In the
context of the Strickland test, a reason
able probability of a different result is
"a probability sufficient to undermine
confidence in the outcome [of the
proceeding]." United States v. Balzano,
916 F.2d 1273, 1292 (7th Cir. 1990)
(internal quotation omitted).

  Valenzuela’s argument ignores the
additional evidence at sentencing that
suggested that the substances at issue
were crack cocaine. As we indicated on
direct appeal, there was an abundance of
evidence showing that some, if not
virtually all of the controlled
substances distributed by Valenzuela were
crack rather than powder cocaine.
Inaddition to the testimony of the police
officers involved in the investigation
and the lab reports suggesting the
presence of "rock" and "crack" cocaine,
Valenzuela himself admitted that he
distributed crack cocaine on tape to the
undercover officers and at his plea
hearing when he agreed to the
government’s description of his crime.
Considering the overwhelming amount of
evidence that the drugs in question were
crack cocaine, we do not think there is a
reasonable probability that the outcome
of Valenzuela’s sentencing hearing would
have been different even if his counsel
had not conceded that Valenzuela was
responsible for fifty grams of crack
cocaine. Therefore, because he has not
shown that his attorney’s concession
rendered the sentencing proceeding
fundamentally unfair or unreliable, see
Williams v. Washington, 59 F.3d 673, 682
(7th Cir. 1995), Valenzuela has not met
the prejudice prong of the Strickland
test and is not entitled to habeas relief
on his first claim.

B.   Failure to Present Expert Testimony

  Next, Valenzuela alleges that his
counsel was deficient because he did not
call an expert witness to refute the gov
ernment’s contention that the controlled
substances at issue were crack cocaine
rather than powder cocaine or another
form of cocaine base. At the sentencing
hearing, Valenzuela’s attorney
strenuously cross-examined the
government’s witnesses to establish the
limitations of the police officers’
ability to ascertain that the substances
in question were actually crack cocaine.
Valenzuela asserts that this was not
sufficient; he claims that his counsel
should have called a chemist to testify
that, based on the lab reports as
presented at the sentencing hearing, it
would not be possible to determine to a
scientific certainty that the substances
in question were crack cocaine.
Unfortunately for Valenzuela, however,
"[a] lawyer’s decision to call or not to
call a witness is a strategic decision
generally not subject to review." United
States v. Williams, 106 F.3d 1362, 1367
(7th Cir. 1997); see also United States
v. Balzano, 916 F.2d 1273, 1294 (7th Cir.
1990) ("The Constitution does not oblige
counsel to present each and every witness
that is suggested to him. In fact, such
tactics would be considered dilatory
unless the attorney and the court believe
the witness will add competent,
admissible and non-cumulative testimony
to the trial record."). Here,
Valenzuela’s attorney established on
cross-examination that: (1) the police
officers did not have a background in
chemistry; (2) the police officers did
not perform the lab tests themselves; (3)
many of the lab reports used the term
"rock" as opposed to the term "crack" and
none of the lab reports state that the
cocaine tested positive for crack; and
(4) the police reports of the cocaine
purchases did not use the term "crack."
Given this testimony, we are unsure what,
if any, added value the proposed witness
would have added. Thus, because
Valenzuela has not demonstrated that his
counsel’s decision not to call a chemist
was unreasonable under prevailing
professional norms, his second
ineffective assistance of counsel claim
must fail.

C. Failure to Object to Preponderance
of the Evidence Standard

  Valenzuela was sentenced prior to the
Supreme Court’s decision in Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 434 (2000), which
held that "[o]ther than the fact of a
prior conviction, any fact that increases
the penalty for a crime beyond the
prescribed statutory maximum must be
submitted to a jury and proved beyond a
reasonable doubt." Id. at 490. Valenzuela
now argues for the first time that his
attorney provided ineffective assistance
of counsel by failing to object to the
district court’s use of a preponderance
standard to determine the amount of
cocaine and cocaine base./2 By failing
to raise this issue in his sec. 2255
petition before the district court,
however, Valenzuela has waived it. See
Drake v. Clarke, 14 F.3d 351, 355 (7th
Cir. 1994). At any rate, this argument is
meritless because our cases provide that
"[t]he Sixth Amendment does not require
counsel to forecast changes or advances
in the law." Lilly v. Gilmore, 988 F.2d
783, 786 (7th Cir. 1993); see also United
States v. Smith, 241 F.3d 546, 548 (7th
Cir. 2001) (noting that an ineffective
assistance of counsel argument premised
on counsel’s failure to anticipate
Apprendi would be untenable).

III.   Conclusion

  For the foregoing reasons, we agree with
the district court’s determination that
Valenzuela has not shown that he was
denied the effective assistance of
counsel. Therefore, we AFFIRM the district
court’s denial of petitioner’s motion for
a writ of habeas corpus.

FOOTNOTES

/1 The cocaine base referred to in count one was
additionally identified as the substance "common-
ly known as crack."

/2 Although Valenzuela frames the issue as one of
ineffective assistance of counsel, it appears
from his brief that he is actually arguing that
the district court erred by using a preponderance
of the evidence standard. We previously denied
Valenzuela’s motion to expand the certificate of
appealability to include the Apprendi issue; thus
we need not address it here. Valenzuela did not
present this argument at trial, on direct appeal,
or in the district court in his sec. 2255 motion.
Even if Apprendi applies retroactively on collat-
eral review under Teague v. Lane, 489 U.S. 288,
109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), our
cases are clear that the novelty of Apprendi does
not constitute cause for failing to raise the
issue earlier because "the foundation for Ap-
prendi was laid long before 1992." Garrott v.
United States, 238 F.3d 903, 905 (7th Cir. 2001).
