Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2387
BEVIL CAMPBELL,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Bevil Campbell on Request for Certificate of Appealability for
appellant.
August 25, 2004
Per Curiam. Bevil Campbell seeks a certificate of
appealability ("COA") to appeal from the district court's denial of
his motion pursuant to 28 U.S.C. § 2255. Campbell was convicted
following a jury trial of conspiracy to import a controlled
substance, aiding and abetting the importation of a controlled
substance, and conspiracy to possess a controlled substance with
intent to distribute. He was sentenced to 121 months'
imprisonment, to be followed by 48 months' supervised release. His
conviction and sentence were affirmed on direct appeal. See United
States v. Campbell, 268 F.3d 1 (1st Cir. 2001).
Campbell requests a COA to raise on appeal all of the
ineffective assistance of trial and appellate counsel claims he
raised in his § 2255 motion. A COA may issue "only if the applicant
has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2).
The COA determination under § 2253(c) requires
an overview of the claims in the habeas
petition and a general assessment of their
merits. We look to the District Court's
application of AEDPA to petitioner's
constitutional claims and ask whether that
resolution was debatable among jurists of
reason.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
"To successfully claim ineffective assistance of counsel
under the Sixth Amendment, a defendant must establish that his
counsel's performance fell below an objective standard of
reasonableness and 'that there was a reasonable probability that,
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but for counsel's unprofessional errors, the results of the
proceeding would have been different.'" United States v. Theodore,
354 F.3d 1, 5-6 (1st Cir. 2003)(quoting Strickland v. Washington,
466 U.S. 668 (1984)). With regard to the performance aspect of the
standard, this court has held that it "demands a fairly tolerant
approach," Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994), and that
"since even the most celebrated lawyers can differ over trial
tactics in a particular case, a reviewing court must indulge a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.'" Id. (quoting
Strickland, supra).
The Supreme Court has held that "appellate counsel who
files a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order
to maximize the likelihood of success on appeal." Smith v. Robbins,
528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745
(1983)). Although it "is still possible to bring a Strickland
claim based on counsel's failure to raise a particular claim," the
Court has indicated that satisfying the first part of the
Strickland test requires a showing that the ignored issues were
"clearly stronger than issues that counsel did present." Robbins,
528 U.S. at 288.
Having thoroughly reviewed the record, including the
trial transcripts, we agree with the district court that
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"[o]verwhelmingly, what Campbell asserts as errors are more
appropriately viewed as strategic decisions with which Campbell, in
hindsight, disagrees." District Court's Memorandum and Order,
9/4/02, p. 12. Our overview of Campbell's claims and assessment of
their merits leads us, essentially for the reasons stated by the
district court, to find that reasonable jurists could not debate
the conclusion that Campbell's ineffective assistance claims are
without merit. We add the following comments with respect to
certain of the claims.
Campbell faulted his trial counsel for failing to move
for suppression of derivative evidence for violation of his Fourth
Amendment rights. However, the district court's finding that
Campbell was "in custody" for Fifth Amendment purposes would not
necessarily dictate a finding that he had been unreasonably seized
for Fourth Amendment purposes and that all evidence derivative of
that seizure should be suppressed. See United States v. Newton, 369
F.3d 659, 673 (2d Cir. 2004) (discussing differences between two
standards). Moreover, Campbell has failed to make a substantial
showing that the exclusion of the evidence derived from his seizure
at the airport would likely have resulted in his acquittal.
Similarly, reasonable jurists could not find a reasonable
probability that the exclusion of Campbell's statements to customs
officials at the time of his seizure would have resulted in
acquittal on any of the counts. In view of the substantial direct
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evidence of Campbell's involvement in the charged conspiracy, the
statements have only marginal significance. Therefore, Campbell
has not made the requisite showing that defense counsel's cross-
examination of a government witness which led the court to reverse
its decision to exclude the statements, constituted ineffective
assistance of counsel.
Campbell faults both his trial and appellate counsel for
failing to argue that the supervised release term violated the rule
of Apprendi v. New Jersey, 530 U.S. 466 (2000), because it "exceeds
the term prescribed by 21 U.S.C. § 841(b)(1)(C)." § 2255 Motion, p.
34. However, that statute prescribes a minimum term of supervised
release of three years, and no maximum term. See United States v.
Lopez, 299 F.3d 84, 90 (1st Cir. 2002), cert. denied, __ U.S. __,
124 S.Ct. 1095 (2004). Therefore, reasonable jurists could not
dispute that Campbell's attorneys were not ineffective for failing
to challenge the supervised release term on that basis.
Campbell argues that appellate counsel was deficient for
failing to challenge the district court's excusal of one of two
black jurors. After the close of evidence and prior to closing
arguments, the juror had expressed to the clerk her concern that
because she "runs in the same circles" within the Carribean-
American community in Boston as the defendant, she might be
recognized by Campbell's family and friends as a juror on his case.
After a colloquy between the court, counsel and the juror, the
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court supportably found that the juror "is genuinely concerned
about her safety and that that would interfere with her being open
and candid and participating with the other jurors in the
deliberations in the case."
Under the Federal Rules of Criminal Procedure, "[t]he
court may impanel up to 6 alternate jurors to replace any jurors
who are unable to perform or who are disqualified from performing
their duties." Fed.R.Crim.P. 24(c)(1) (emphasis added). The court
has substantial discretion in decisions to excuse jurors. See
United States v. Gonzalez-Soberal, 109 F.3d 64, 66 (1st Cir. 1997).
A judge may remove a juror "when 'convinced that the juror's
abilities to perform his duties [have] become impaired.'" United
States v. Walsh, 75 F.3d 1, 5 (1st Cir. 1996). Here, the transcript
of the voir dire with the juror supports the judge's finding that
the juror's fear would impair her ability to perform her duties.
There is no suggestion from the record, and Campbell does not
allege, that the juror was excused because of her race. And the
fact that there was only one juror of the defendant's race on the
jury, standing alone, is not ground for reversal. "[A] defendant
has no right to a 'petit jury composed in whole or in part of
persons of his own race.'" Batson v. Kentucky, 476 U.S. 79, 85
(quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1880)).
Therefore, reasonable jurists could not find that this issue was
clearly stronger than those presented by appellate counsel.
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Finally, Campbell is not entitled to a COA to pursue the
claim that counsel was ineffective for failing to anticipate the
Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct.
2531 (2004). On appeal, this court held that there was no Apprendi
violation because Campbell was sentenced below the statutory
maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C). In his § 2255
motion, Campbell argued that appellate counsel should have argued
that Apprendi was violated because Campbell's base offense level
under the sentencing guidelines was enhanced based on the drug
quantity. He has now filed an addendum to his COA memorandum in
which he asks that Blakely "be applied in evaluating the arguments
which he has placed before the court." Notice of Supplemental
Authority, p. 1.
This case does not require us to decide whether Blakely
applies to the federal sentencing guidelines or whether it applies
retroactively to cases on collateral review. Because Campbell
stipulated at trial to a drug quantity that corresponded to the
base offense level used to calculate his sentence, he cannot show
that he was prejudiced by the failure to charge the specific drug
quantity in his indictment. See United States v. Riggs, 347 F.3d
17, 20 (1st Cir. 2003), cert. denied, __ U.S.__, 124 S.Ct. 1095
(2004). Moreover, counsel's failure to anticipate Blakely would
not constitute unreasonable performance under Strickland because
"First Circuit jurisprudence on this point ha[d] been well
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established." Campbell, 268 F.3d at 7, n.7. Therefore, reasonable
jurists could not find that he has made a substantial showing that
the Blakely issue would have been clearly stronger than the issues
raised by appellate counsel.1
Campbell's request to proceed IFP is granted, but his
request for a COA is denied. The appeal is terminated.
1
To the extent that petitioner is seeking to assert a new
claim based on Blakely (rather than to provide supplemental support
for his ineffective assistance claim), he would be required to
present that claim first in the district court. Certification to
file a second or successive petition could not be granted unless
the Supreme Court had held that Blakely applied retroactively to
cases on collateral review. 28 U.S.C. § 2255.
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