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 eightcount 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 crossexamination 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 "commonly 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 collateral 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 Apprendi was laid long before 1992." Garrott v.

United States, 238 F.3d 903, 905 (7th Cir. 2001).