     11-3457
     McCoy v. United States


 1
 2                    UNITED STATES COURT OF APPEALS
 3
 4                        FOR THE SECOND CIRCUIT
 5
 6
 7
 8                            August Term, 2012
 9
10   (Argued: December 13, 2012             Decided: January 30, 2012)
11
12                            Docket No. 11-3457
13
14
15                               TRANELL MCCOY,
16
17                                                 Petitioner-Appellant,
18
19                                   –v.–
20
21                         UNITED STATES OF AMERICA,
22
23                                                 Respondent-Appellee.
24
25
26
27
28   Before:
29             WESLEY, HALL, Circuit Judges, Goldberg, Judge.*
30
31        Appeal from the district court’s judgment of August 9,
32   2011, entered pursuant to its ruling and order of August 4,
33   2011, denying Petitioner-Appellant Tranell McCoy’s petition
34   for writ of habeas corpus and issuing a certificate of
35   appealability as to McCoy's ineffective assistance of
36   counsel claim. In its ruling and order, the district court
37   held, inter alia, that McCoy's trial counsel was not
38   constitutionally defective for failing to challenge a second
39   offender notice filed by the government, see 21 U.S.C. §


          *
            The Honorable Richard W. Goldberg, of the United States
     Court of International Trade, sitting by designation.
 1   851, which caused the five year mandatory minimum sentence
 2   for McCoy's convictions to increase to ten years, see 21
 3   U.S.C. § 841(b)(l)(B). We affirm.
 4
 5        AFFIRMED.
 6
 7
 8
 9             STEVEN B. RASILE, Law Offices of Mirto & Rasile,
10                  LLC, West Haven, CT for Petitioner-Appellant.
11
12             ROBERT M. SPECTOR, Assistant United States
13                  Attorney (Sandra S. Glover, Assistant United
14                  States Attorney of Counsel, on the brief), for
15                  David B. Fein, United States Attorney for the
16                  District of Connecticut, New Haven, CT for
17                  Respondent-Appellee.
18
19
20
21   PER CURIAM:

22        Petitioner-Appellant Tranell McCoy appeals from the

23   district court’s judgment of August 9, 2011, entered

24   pursuant to its ruling and order of August 4, 2011, denying

25   his petition for writ of habeas corpus and issuing a

26   certificate of appealability as to McCoy’s ineffective

27   assistance of counsel claim.    In its ruling and order, the

28   district court held, inter alia, that McCoy's trial counsel

29   was not constitutionally defective for failing to challenge

30   a second offender notice filed by the government, see 21

31   U.S.C. § 851, which caused the five year mandatory minimum

32   sentence for McCoy’s convictions to increase to ten years,

33   see 21 U.S.C. § 841(b)(l)(B).    McCoy v. United States, No.
                             Page 2 of   11
 1   3:09-cv-1960 (MRK), 2011 WL 3439529, at *1 (D. Conn. Aug. 4,

 2   2011).   For the following reasons, we affirm.

 3                                 I.

 4       In August 2006, a jury convicted McCoy on charges

 5   contained in two separate indictments, including conspiracy

 6   to possess with intent to distribute five grams or more of

 7   cocaine base; possession with intent to distribute five

 8   grams or more of cocaine base; possession with intent to

 9   distribute marijuana; and possession of a firearm in

10   furtherance of a drug trafficking crime.       Id.

11       Before trial, the government filed a second offender

12   notice pursuant to 21 U.S.C. § 851.       In that notice, the

13   government indicated its intent to rely on a prior felony

14   drug conviction that would subject McCoy to a sentencing

15   enhancement under 21 U.S.C. § 841(b).       The offense

16   identified by the government was McCoy’s 1996 conviction for

17   the sale of narcotics in violation of Connecticut General

18   Statutes § 21a-277(a).   In that 1996 case, McCoy entered an

19   Alford plea, i.e., McCoy never admitted to the facts

20   underlying his conviction.   See North Carolina v. Alford,

21   400 U.S. 25 (1970).   McCoy’s trial counsel did not object to

22   the second offender notice, which caused McCoy’s five year

23   mandatory minimum sentence to increase to ten years.       See 21

                              Page 3 of   11
 1   U.S.C. § 841(b)(l)(B).     The district court ultimately

 2   imposed a non-Guidelines sentence of 181 months’

 3   imprisonment and eight years supervised release.          On direct

 4   appeal, McCoy’s appellate counsel did not object to the

 5   second offender enhancement or any other aspect of his

 6   sentence.   McCoy, 2011 WL 3439529, at *6.

 7        On March 17, 2011, McCoy filed an amended petition for

 8   writ of habeas corpus pursuant to 28 U.S.C. § 2255 alleging

 9   that (1) his sentence was illegal insofar as it was based on

10   a second offender enhancement under § 851; and (2) his trial

11   counsel was ineffective for failing to object to the second

12   offender enhancement.1     McCoy argued, and the government now

13   concedes, that because he entered an Alford plea, the plea

14   transcript and other court documents did not provide a

15   sufficient basis for finding a predicate “felony drug

16   offense.”   See 21 U.S.C. § 841(b)(l)(B).

17        The district court rejected both of McCoy’s claims.

18   With respect to his claim that his sentence was illegal, the

19   district court concluded that McCoy failed to establish

20   either cause or prejudice to excuse his failure to object to


          1
             McCoy filed his original § 2255 petition in December 2009. He
     amended his petition in January 2010. The claims raised in his
     original and January 2010 amended petition, as well as the district
     court’s disposition of those claims, are not relevant to this appeal.

                                Page 4 of   11
 1   the second offender enhancement on direct appeal.       McCoy,

 2   2011 WL 3439529, at *6-7.    It reasoned that the legal basis

 3   for his claim was “reasonably available at the time of Mr.

 4   McCoy’s direct appeal,” and that he was not prejudiced

 5   because “whether or not the second offender enhancement

 6   applied, Mr. McCoy's sentence was in fact far below the

 7   applicable Guidelines range."       Id. at *6-8.   The district

 8   court also rejected McCoy’s ineffective assistance of

 9   counsel claim, concluding that he did not meet the

10   requirements of the Strickland standard.      Id. at *9-10; see

11   Strickland v. Washington, 466 U.S. 668 (1984).

12   Nevertheless, the district court issued a certificate of

13   appealability as to the ineffective assistance of counsel

14   claim.   McCoy, 2011 WL 3439529, at *10.     Although the court

15   was “confident that the performance of Mr. McCoy's trial

16   counsel was not constitutionally deficient,” it concluded

17   that “reasonable jurists could debate the Court’s

18   assessment” of this claim.    Id.

19                                II.2

20       To prevail on an ineffective assistance of counsel

21   claim, a habeas petitioner must demonstrate that: (1) his



         2
            We review de novo a district court’s denial of a § 2255
     petition. Fountain v. United States, 357 F.3d 250, 254 (2d Cir.
     2004).


                              Page 5 of    11
 1   counsel’s representation fell below an objective standard of

 2   reasonableness; and (2) there is a reasonable probability

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

 4   the proceeding would have been different. See Strickland,

 5   466 U.S. at 687–88, 694.     McCoy’s petition fails at both

 6   steps.

 7       McCoy bears a “heavy” burden to establish that trial

 8   counsel’s performance was unreasonable under “‘prevailing

 9   professional norms.’”   Harrington v. United States, 689 F.3d

10   124, 129-30 (2d Cir. 2012) (quoting Harrington v. Richter,

11   131 S. Ct. 770, 788 (2011)).     In this vein, he argues that

12   trial counsel’s failure to object to the second offender

13   notice fell below prevailing professional norms and was

14   constitutionally deficient.

15       McCoy premises his claim on a discrepancy between the

16   Connecticut and federal drug schedules.     When McCoy entered

17   an Alford plea in 1996, Connecticut General Statutes

18   § 21a-277(a) criminalized some conduct that did not fall

19   within the federal definition of a “felony drug offense.”

20   Specifically, Connecticut criminalizes conduct involving two

21   obscure opiate derivatives, thenylfentanyl and

22   benzylfentanyl, that no longer fall within the federal

23   definition of a “felony drug offense.”      Compare Conn.

                                Page 6 of   11
 1   Agencies Regs. § 21a-243-7(a)(10), para. 52, with 21 U.S.C.

 2   § 811(a)(1),(h)(2); 51 Fed. Reg. 43025 (Nov. 28, 1986); 50

 3   Fed. Reg. 43698 (Oct. 29, 1985).     Thus, to establish that

 4   McCoy’s state conviction qualified as a predicate offense

 5   triggering a § 851 sentence enhancement, the government

 6   concedes that it needed to rely on court documents “in which

 7   the factual basis for [McCoy's] plea was confirmed by the

 8   defendant.”   Shepard v. United States, 544 U.S. 13, 26

 9   (2005).   Instead, the government categorically relied on

10   McCoy’s 1996 Alford plea.

11       We agree with the district court that trial counsel’s

12   failure to object to the second offender enhancement does

13   not constitute constitutionally deficient performance.      As

14   the court explained, at the time of McCoy’s trial and

15   sentencing the District of Connecticut “had proceeded with

16   the long-held belief that prior Connecticut convictions for

17   sale of narcotics qualified categorically as . . . felony

18   drug offenses under 21 U.S.C. § 841(b)(1).”     McCoy, 2011 WL

19   3439529, at *9 (internal quotation marks and citation

20   omitted); see also Sarah French Russell, Rethinking

21   Recidivist Enhancements: The Role of Prior Drug Convictions

22   in Federal Sentencing, 43 U.C. Davis L. Rev. 1135, 1199-1202

23   (2010) (same).   Accordingly, the performance of McCoy’s

                              Page 7 of   11
 1   trial counsel did not “amount[] to incompetence under

 2   prevailing professional norms” as examined from counsel’s

 3   perspective at the time.     Harrington v. Richter, 131 S. Ct.

 4   at 788 (internal quotation marks and citation omitted).

 5        McCoy does not contest that this was the prevailing

 6   professional norm at the time of his trial and sentencing.

 7   Instead, he argues that trial counsel should have objected

 8   to the second offender enhancement based on developments in

 9   the law that occurred after his trial.      We disagree.

10        Several weeks after trial, a district court in

11   Connecticut held, for the first time, that a conviction

12   under Connecticut General Statute § 21a-277(a) was not

13   categorically a conviction for a “serious drug offense”

14   under 18 U.S.C. § 924(e) because of the criminalization in

15   Connecticut of benzylfentanyl and thenylfentanyl.3      United

16   States v. Madera, 521 F. Supp. 2d 149, 154-55 (D. Conn.

17   2007); see also United States v. Lopez, 536 F. Supp. 2d 218,

18   221-222 (D. Conn. 2008) (same); United States v. Cohens, No.

19   3:07-cr-195 (EBB), 2008 WL 3824758, at *4-5 (D. Conn. Aug.

20   13, 2008) (same).   A year after Madera, we held that a



          3
            A “serious drug offense” under § 924 includes any offense
     that qualifies as a “felony drug offense” under § 841. See 18
     U.S.C. § 924(e)(2); 21 U.S.C. § 802(44).

                                Page 8 of   11
 1   conviction under § 21a-277(b) was not categorically a

 2   conviction for a “controlled substance offense” as that term

 3   is defined in U.S.S.G. § 4B1.2(b), the career offender

 4   guideline.    United States v. Savage, 542 F.3d 959, 960 (2d

 5   Cir. 2008).

 6       But “[a]n attorney is not required to forecast changes

 7   or advances in the law" in order to provide effective

 8   assistance.    Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir.

 9   2001) (internal quotation marks and citation omitted).

10   Rather “counsel’s performance must be assessed . . . as of

11   the time of counsel’s conduct without the benefit of

12   hindsight.”    Id. (internal quotation marks omitted).

13   Moreover, even after Madera, Lopez, Cohens, and Savage, it

14   was not immediately apparent to the defense bar that an

15   Alford plea to Connecticut’s controlled substance laws could

16   not categorically serve as the basis to enhance a sentence

17   under 21 U.S.C. § 841(b).    These cases did not address the

18   long-accepted use of the categorical approach to determine

19   whether a defendant has been convicted of a prior felony

20   drug offense under § 841(b).    Indeed, it was not until June

21   29, 2009 that the government acknowledged § 21a-277(a)

22   criminalized conduct involving narcotic substances not

23   covered by the federal definition of a “felony drug offense”

                               Page 9 of   11
 1   used in 21 U.S.C. §§ 802(44) and 841(b)(1).     See Sentencing

 2   Mem. of United States at 6-8, United States v. Jackson, No.

 3   3:06-cr-151 (MRK) (D. Conn. June 29, 2009) (ECF No. 96).      We

 4   should not fault trial counsel for failing to raise an

 5   objection to the second offender enhancement the legal basis

 6   for which was not sustained until almost three years after

 7   trial.   See Sellan, 261 F.3d at 315.

 8       McCoy counters that the district court placed him in a

 9   “Catch 22” by finding that his claim did not overcome the

10   “cause” portion of the procedural default standard, while

11   also concluding that counsel was not deficient because the

12   argument was novel at the time of the sentencing.      But McCoy

13   ignores the differences between determining whether cause

14   exists to excuse a procedural default and whether counsel’s

15   performance was constitutionally deficient.    As the district

16   court carefully explained, the reason that McCoy failed to

17   establish cause for failing to raise the challenge below is

18   because the argument was “reasonably available” to McCoy and

19   nothing external prevented him from making it.     McCoy, 2011

20   WL 3439529, at *6-7.   But given the defense bar’s long-held

21   position that Connecticut narcotics convictions

22   categorically qualified under § 851, it did not constitute

23   ineffective assistance for trial counsel to fail to

24   challenge the second offender notice.     Id. at *9.

                             Page 10 of   11
 1        Finally, even if trial counsel’s performance was

 2   deficient, there is not a reasonable probability that, but

 3   for counsel’s unprofessional errors, the result of the

 4   proceeding would have been different.         See Strickland, 466

 5   U.S. at 694.    The district court made it exceedingly clear

 6   in its original written judgment and in its ruling on the

 7   habeas petition that a lower mandatory minimum sentence

 8   would not have changed McCoy’s sentence.4         McCoy, 2011 WL

 9   3439529 at *8-9.

10                                   III.

11        For the foregoing reasons, the judgment of the district

12   court, entered pursuant to its thorough and thoughtful

13   ruling and order, is AFFIRMED.




          4
            We decline to consider whether the performance of McCoy’s
     appellate counsel was constitutionally deficient as this claim was not
     included in the certificate of appealability. See Armienti v. United
     States, 234 F.3d 820, 824 (2d Cir. 2000).

                                Page 11 of   11
