                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0870n.06
                            Filed: December 20, 2007

                                             No. 05-6006

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


JAMES A. STONE,                                      )
                                                     )
        Petitioner-Appellant,                        )
                                                     )
v.                                                   )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                            )    EASTERN DISTRICT OF KENTUCKY
                                                     )
        Respondent-Appellee.                         )




        Before: DAUGHTREY and COLE, Circuit Judges; and COLLIER,* District Judge.


        PER CURIAM. James A. Stone appeals pro se from the denial of his motion, filed

pursuant to 28 U.S.C. § 2255, to vacate the sentence imposed upon him as the result of

his convictions on federal drug charges.                 Stone insists that his trial counsel was

constitutionally ineffective (1) in failing to object to the prosecutor’s closing argument that

commented on Stone’s decision to invoke his right to silence and (2) in failing to object to

the quantity of crack cocaine attributed to him for sentencing purposes. Although we

conclude that Stone has shown deficiencies in the performance of his trial counsel, he has

not shown that he was prejudiced by those deficiencies. For this reason, we affirm the

district court’s order denying relief on the petitioner’s § 2255 motion.

        *
         The Hon. Curtis L. Collier, Chief District Judge for the Eastern District of Tennessee, sitting by
designation.
No. 05-6006
Stone v. United States

                     FACTUAL AND PROCEDURAL BACKGROUND


       In the early morning hours of October 11, 1999, Lexington, Kentucky, police stopped

a Chevrolet van that the officers had observed speeding and being driven somewhat

erratically. See United States v. Carter, Nos. 00-5855, 00-5879, 00-5888, 2002 WL

1890132, at **1-2 (6th Cir. Aug. 15, 2002) (a prior decision of this court on the direct

appeal of co-defendants Elton Carter, James Stone, and Antonio Smith). Although the

driver of the van, James Stone, was originally arrested only for reckless driving, a

subsequent search of the van, of Stone, and of Stone’s two female passengers, Lia Hicks

and Yolanda Parker, produced a room key to Room 264 of a local motel and a makeup

compact case containing both cocaine residue and marijuana stems. See id. at *2. Upon

arriving at that motel, the officers then obtained consent to enter Room 264 and there

found three other individuals – co-defendants Carter, Smith, and Raymond Williams – who

shared the room with Stone, Hicks, and Parker. In searching the room, the police officers

uncovered various evidence of drug use, $2,310 in cash, and 60 grams of crack cocaine.

See id. at **2-3. Because trial testimony indicated that Stone actually paid for the room

and financed the criminal activities of the group, the jury ultimately convicted Stone on

three drug counts, convictions that then led the district judge to sentence Stone to life in

prison. See id. at *4.


       We affirmed the convictions, not only of Stone but also of Carter and Smith. See

id.   In doing so, we noted that the government had violated the defendants’ Fifth


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Stone v. United States

Amendment rights by the prosecutor’s “constant references to the defendants’ decisions

to remain silent.” Id. at *8. But we also held that Stone and his co-defendants had waived

any challenge to that error by declining the district judge’s sua sponte offer to declare a

mistrial because of the misconduct. Id.


       Furthermore, we “concluded that an Apprendi [v. New Jersey, 530 U.S. 466 (2000),]

violation occurred” when the district court determined, by a preponderance of the evidence,

that 60 grams of crack cocaine were attributable to Stone, thus increasing his possible

punishment to life in prison. Carter, 2002 WL 1890132, at *12. Because Stone’s counsel

failed to lodge a timely Apprendi objection, however, and because “the drug amount used

was in fact clearly shown,” id., we ruled that any error in this regard did not “seriously affect

the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United

States v. Cotton, 535 U.S. 625, 633 (2002)).


       Stone then filed his § 2255 motion with the district court, alleging ineffective

assistance of counsel in that:


       (1) at trial, his counsel failed to timely object to the prosecutor’s closing
       argument concerning the unrebutted evidence against Stone, resulting in
       waiver of that issue for appellate review, (2) at sentencing, his counsel failed
       to object to the amount of cocaine used for sentencing purposes, resulting
       in the imposition of a life sentence, and (3) on appeal, his counsel failed to
       argue that the evidence at trial was insufficient to support his conviction.




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Stone v. United States

The magistrate judge recommended that each ground for relief be denied and the district

judge adopted that recommendation in its entirety. Subsequently, we issued a certificate

of appealability on the first and second claims raised in the § 2255 motion.




                                        DISCUSSION


       When presented on appeal with a challenge to the denial of a § 2255 motion, we

“review the district court’s factual findings for clear error and its legal conclusions de novo.”

Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). Moreover, “[t]o warrant

relief under § 2255, a petitioner must demonstrate the existence of an error of

constitutional magnitude which had a substantial and injurious effect or influence on the

guilty plea or the jury’s verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)

(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).


       Stone contends that he was deprived of a fair trial and a valid sentence because he

received the ineffective assistance of counsel. In addressing such a claim, we are guided

by the now-familiar two-part test of Strickland v. Washington, 466 U.S. 668 (1984). As

required by that analytical framework:


       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s

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Stone v. United States

       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.


Id. at 687.


       In evaluating the prejudice suffered by a petitioner as a result of alleged ineffective

assistance of counsel, “[i]t is not enough for the defendant to show that the errors had

some conceivable effect on the outcome of the proceeding.” Id. at 693. Indeed, “[v]irtually

every act or omission of counsel would meet that test, and not every error that conceivably

could have influenced the outcome undermines the reliability of the result of the

proceeding.” Id. (citation omitted). Rather, the petitioner “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. at 694.


A. Failure of Trial Counsel to Object to Comments on Right to Silence


       As we previously noted in addressing the issues raised in Stone’s direct appeal:


       A defendant’s Fifth Amendment rights [against self-incrimination] are violated
       when a prosecutor is permitted to use against him his choice to remain silent
       at trial. Griffin v. California, 380 U.S. 609, 613, 85 S.Ct. 1229, 14 L.Ed.2d
       106 (1965). Post-arrest silence also may not be used against a defendant
       at trial in order to imply guilt from that silence. Doyle v. Ohio, 426 U.S. 610,
       611, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Pre-arrest silence also may not
       be used as substantive evidence of guilt, and will be admitted at trial only for
       impeachment purposes. See Combs v. Coyle, 205 F.3d 269, 281-83 (6th
       Cir. 2000); see also Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S.Ct.


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No. 05-6006
Stone v. United States

       1710, 123 L.Ed.2d 353 (1993). As such, the use of an accused’s pre-arrest
       silence is “not a legitimate governmental practice.” Combs, 205 F.3d at 285.


Carter, 2002 WL 1890132, at *6.


       During the closing arguments in Stone’s trial, however, the prosecutor continually

ignored this fundamental precept of criminal law and made reference to the defendants’

failure to adduce proof contravening the government’s assertions. In his initial closing

argument, for example, the prosecutor stated, “[T]he unrefuted evidence of this case is that

over 60 grams of crack cocaine is found in a hotel room in which these four defendants

were staying; unrefuted, uncontroverted, undenied . . . .” (Emphasis added.) He then

continued by arguing, “I asked Detective Dawson, when you found the drugs, when you

found them, what was the reaction of each of them? Was there any reaction? None.

Common sense. Common sense.” (Emphasis added.) Finally, in ending his rebuttal

argument, the government’s attorney continued:


       The search of that room clearly produced 60 grams of crack cocaine. Three
       individuals there; Mr. Stone, who’s driving the van where crack is found;
       where Mr. Carter is using a fake I.D.; cell phone; scales; pager; all indicative
       of trafficking in drugs. That’s unrefuted. There’s no speculation there. The
       evidence, the common sense dictates that these individuals were here
       trafficking in cocaine, and that’s what they were – and that’s what happened
       and had been doing, and they were caught. And that’s why they hung their
       head, and that’s why there was no surprise, and that’s the simple truth of the
       matter. (Emphasis added.)


       Surprisingly, defense counsel did not lodge objections to the majority of these

improper statements, and Stone now insists that those failures amounted to ineffective

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Stone v. United States

assistance of counsel that should result in setting aside his convictions. Such inattention

on the part of defense counsel to his client’s constitutional rights is clearly a practice that

falls below the standard of competence that is demanded of criminal defense attorneys.

Fortunately, however, the district judge himself recognized the serious constitutional

problems presented by the prosecution’s unrestrained advocacy and, sua sponte, offered

the defendants a mistrial. For strategic reasons, defense counsel chose not to avail

themselves of that option and instead agreed that the district court could offer a curative

instruction to the jury on the matter following the conclusion of the arguments. In that vein,

the court charged:


       The defendants have an absolute right not to testify or present evidence.
       The fact that they did not testify or present any evidence cannot be
       considered by you in any way. Do not even discuss it in your deliberations.
       Remember that it is up to the government to prove the defendants guilty
       beyond a reasonable doubt. It is not up to the defendants to prove that they
       are innocent.
       You must disregard the government’s argument in closing that its evidence
       was unrebutted. (Emphasis added.)


       Given the overwhelming proof of Stone’s complicity in the drug possession plans,

and the district court’s emphasis on the importance of disregarding any insinuation by the

government that the defendants were required to, or even should have, rebutted the

proffered testimony, we conclude that no prejudice resulted from this error. Because a

different result at trial was not reasonably probable, we hold that Stone’s ineffective-




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Stone v. United States

assistance-of-counsel claim based on the failure to object to improper closing arguments

is without merit.


B. Failure of Trial Counsel to Challenge Drug Quantity


       As additional evidence that he received ineffective assistance of counsel, Stone

asserts that his trial attorney improperly allowed him to be sentenced to life in prison by

failing to object to the district court’s finding, made without the intervention of a jury, that

Stone’s sentence should be based upon possession of 60 grams of crack cocaine. As we

determined on Stone’s direct appeal:


       Because of the district court’s determination that sixty grams of cocaine base
       were involved, Stone was sentenced to life imprisonment under [21 U.S.C.]
       § 841(b)(1)(A), beyond the statutory maximum of thirty years in
       § 841(b)(1)(C). Apprendi requires that any fact that enhances the sentence
       in this manner must be found by the jury beyond a reasonable doubt.
       Apprendi, 530 U.S. at 483. Because Instruction No. 20 clearly informed the
       jury that they need not find the amount alleged in the indictment, “but that
       only a measurable amount of cocaine base (crack cocaine) was involved,”
       the jury made no finding regarding drug quantity sufficient for the district
       court to sentence Stone beyond the thirty year maximum allowable for
       possessing “a measurable amount of cocaine base” under § 841(b)(1)(C).
       Accordingly, Stone’s sentence of life imprisonment violates Apprendi.


Carter, 2002 WL 1890132, at *12.


       Clearly, the failure of defense counsel to object to an obvious Apprendi error that

results in a life sentence instead of a maximum sentence of 30 years, as otherwise

provided by statute, constitutes the type of deficient performance that satisfies the first


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Stone v. United States

prong of the Strickland standard. Nevertheless, Stone cannot establish the necessary

prejudice from that error to justify a grant of § 2255 relief. Under the unique facts of this

case, even if trial counsel had lodged an Apprendi objection and a jury, rather than the

district judge, had determined the drug quantity, the result would have been the same. The

only evidence in the trial testimony supporting convictions on the crack cocaine charges

was that 60 grams of crack were recovered from Room 264 of the motel. Thus, Stone was

necessarily chargeable with possession of those 60 grams or of no amount at all. Because

Stone cannot establish that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different,” we conclude

that this § 2255 challenge is also without merit.


                                      CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court

denying relief on the petitioner’s § 2255 motion.




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