The opinion of the court was delivered by: Savage, J.
In his motion under 28 U.S.C. § 2255 challenging his conviction for conspiring to distribute cocaine base ("crack"), Jose Rivas raises ineffectiveness of counsel at both the trial and the sentencing levels. He asserts that his trial counsel was ineffective for failing to object to testimony that he was a target of the government's drug investigation, and to the jury instructions relating to reasonable doubt and the stipulation about the substance and amount of crack cocaine. He contends that counsel at sentencing was ineffective because he failed to argue that Rivas was only responsible for the drug quantity attributable to him and to move for a downward departure based on sentencing entrapment.
Because his claims are without merit, his motion will be denied.
Factual and Procedural History
On four separate occasions, Charles Mobley, while working as a confidential informant with government agents, purchased crack cocaine at 7th and Reed Streets in Philadelphia. Initially, Mobley dealt only with Darrin Culler. In in later transactions, he dealt directly with Rivas and Juan Johnson. The transactions were surveilled and documented by the agents.
On April 25, 2002, after Mobley called Culler to arrange a purchase of crack cocaine, they met and exchanged $1,200 for 41.2 grams of crack cocaine. On June 25, 2002, Mobley and Culler met again, exchanging $1,600 for 54.3 grams of crack cocaine. Before leaving, Culler provided Mobley with Rivas's telephone number to call if he needed more crack cocaine. Rivas supplied the drugs sold on April 25, 2002 and June 25, 2002.
On August 6, 2002, Mobley contacted Rivas directly and arranged to purchase crack cocaine. The following day, Mobley purchased 80.1 grams of crack cocaine for $2,400. It was not clear whether it was Rivas or Culler who passed the crack cocaine to Mobley.*fn1
Mobley again contacted Rivas on September 11, 2002 to arrange a purchase of crack cocaine. The next day, Mobley met Johnson, whom Rivas had asked to handle the sale. Mobley paid Johnson $2,400 for 86.2 grams of crack cocaine. After the sale, Rivas contacted both Mobley and Johnson to determine how the sale had gone.
After each transaction, the agents confiscated the drugs which were weighed and analyzed by police chemists. The drugs were preserved for evidence.
Rivas was charged with conspiracy to distribute crack cocaine,*fn2 and distributing crack cocaine*fn3 and aiding and abetting the distribution of crack cocaine.*fn4 Following a jury trial at which both Culler and Johnson testified, Rivas was found guilty of the conspiracy charge, but not guilty of the distribution charge. He was sentenced to a mandatory minimum prison term of 240 months.
Rivas appealed to the Third Circuit Court of Appeals, which affirmed the conviction and sentence. His petition for certiorari was denied by the United States Supreme Court. He then filed this timely petition under 28 U.S.C. § 2255.
In his petition, Rivas claims that his trial counsel was ineffective in three situations. He argues that his attorney failed to object to: (1) testimony that Rivas was a target of the investigation; (2) the "two-inference" jury charge which instructed that "[i]f you view the evidence as reasonably permitting either a finding of guilty or a finding of not guilty, you must adopt the conclusion of not guilty as your verdict"; and (3) the jury instruction regarding a stipulation which stated that:
[w]hen a fact is stipulated or agreed by both sides the law deems that fact to be established and you are to accept that fact as established for your purposes. You should concern yourselves with determining from the evidence only those facts to which there has been no stipulation. Tr. Second Day at 154.
He also contends that counsel was ineffective at sentencing when he failed to request a determination of the drug quantity attributable to him, and to argue sentencing entrapment.
Ineffective assistance of counsel claims are evaluated under the familiar two part standard established in Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S. 362, 391 (2000). First, the petitioner must demonstrate that his attorney's performance was deficient, that is, "counsel's representation fell below an objective standard of reasonableness," considering all of the surrounding circumstances of the particular case and the facts viewed at the time of counsel's conduct. Strickland, 466 U.S. at 687-89. Second, if there was a deficiency, he must show that it prejudiced his defense. Id. at 692. The prejudice prong requires a showing that as a result of the deficient representation, a reasonable probability exists that the results of the proceedings would have been different. Id. at 694. A reasonable probability is one that is "sufficient to undermine confidence in the outcome." Id. at 694. In other words, the prejudice component focuses on whether counsel's deficient performance renders the result of the proceedings unreliable or fundamentally unfair. Williams, 529 U.S. at 393, n. 17.
Rivas claims that his counsel was ineffective for failing to object to testimony that he was a target of the drug investigation that ultimately resulted in his arrest. He claims that the testimony about who "ended up being the target" of the investigation was testimonial hearsay in violation of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004) and Idaho v. Wright, 497 U.S. 805(1990).
The Third Circuit Court of Appeals concluded on direct appeal that although the testimony was improper and there was no legitimate basis for the question, there was no plain error in its admission. United States v. Rivas, 493 F.3d 131, 137 (3d Cir. 2007). The court found that if "there was a brief suggestion of extra-record evidence . . . the jury was instructed to disregard it." Id. The Third Circuit was "not convinced that the 'target' testimony affected the outcome of the trial." Id.
Considering the appellate court's finding, Rivas cannot show any prejudice. The Third Circuit determined that the 'target' testimony did not affect the outcome of the trial. Therefore, Rivas cannot show any prejudice from the failure of counsel to object to the "target" testimony. Id.
There was no Confrontation Clause violation. The Confrontation Clause protects against the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had [the] opportunity for cross examination." Crawford, 541 U.S. at 53-54. The Court explained that "[t]he [Confrontation] Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Id. at 59 n. 9.
In this case, the witness, who characterized Rivas as one of the "targets", was available for cross-examination to test the basis and reliability of his testimony. Therefore, there was no Confrontation Clause violation.
Even if the testimony was inadmissible hearsay, counsel cannot be faulted for not objecting to it. It is understandable why counsel chose not to cross examine the witness on this issue. He would have opened the door for the introduction of evidence that would have severely prejudiced his client. Furthermore, rather than call attention to the passing comment, counsel let it go without objection. Thus, counsel was not deficient.
"Two-Inference" Jury Instruction
The "two-inference" jury instruction has been disapproved, but has not been held per se constitutionally deficient. United States v. Isaac, 134 F.3d 199, 203 (3d Cir. 1998). In determining whether the "two-inference" instruction was constitutionally deficient, the reasonable doubt instruction must be considered as a whole. Victor v. Nebraska, 511 U.S. 1, 5 (1994) (quoting Holland v. United States, 348 U.S. 121, 140 (1954)). In assessing whether an instruction is constitutionally deficient, the question "is not whether the instruction 'could have' been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so . . . ." Id. at 6 (citing Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991)).
In Isaac, the trial court's reasonable doubt instruction included the following:
[W]hile bearing in mind that it is rarely possible to prove anything to an absolute certainty, you must remember, as well, that a defendant must never be convicted on mere assumption, conjecture or speculation. So if the jury views the evidence in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, the jury should, of course, adopt the conclusion of innocence. Isaac, 134 F.3d at 202.
In Isaac, the trial court contrasted guilt and innocence. Doing so, according to the Third Circuit, it suggested a lower standard of proof. Id. at 204. While noting that the Second Circuit had held the "two-inference" instruction, such as the one in Isaac, improper because it "'may mislead a jury into thinking that the government's burden is somehow less than proof beyond a reasonable doubt'", the Third Circuit, nevertheless, held that this "jury instruction, taken as a whole, was not ...