IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

VS. § NO. 3-03-CR-0078-N(14) 

§ NO. 3-06-CV-2063-N 

JOSEPH H. FIELDS §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant Joseph H. Fields, appearing pro se, has filed a motion to correct, vacate, or set

aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should

be denied.

I.

Defendant was charged in three counts of a six count indictment with: (1) conspiracy to

possess with intent to distribute more than 50 grams of cocaine base, (2) possession with intent to

distribute cocaine, and (3) distribution of cocaine. He pled guilty to the substantive counts and was

convicted by a jury on the conspiracy count. Punishment was assessed at 292 months confinement

followed by supervised release for a period of five years. His conviction and sentence were affirmed

on direct appeal. United States v. Fields, 138 Fed.Appx. 622, 2005 WL 1412914 (5th Cir.), cert.

denied, 126 S.Ct. 669 (2005). Defendant now seeks post-conviction relief under 28 U.S.C. § 2255.

II.

In his sole ground for relief, defendant contends that he received ineffective assistance of

counsel at sentencing because his attorney failed to make an Apprendi or Blakely objection and did

not preserve a possible Booker claim for appeal.

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A.

The Sixth Amendment to the United States Constitution guarantees a defendant reasonably

effective assistance of counsel at all critical stages of a criminal proceeding. Cuyler v. Sullivan, 446

U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain post-conviction

relief due to ineffective assistance of counsel during the punishment phase of a non-capital case, a

defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must first demonstrate that counsel's performance

fell below an objective standard of reasonable professional service. Id., 104 S.Ct. at 2064. He also

must establish prejudice--that he was subjected to increased jail time due to the deficient

performance of his attorney. See United States v. Grammas, 376 F.3d 433, 439 (5th Cir. 2004),

citing Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 699, 148 L.Ed.2d 604 (2001).

There is a strong presumption that counsel's conduct falls within a wide range of reasonable

professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110

S.Ct. 1311 (1990). A defendant must affirmatively show how the actions of his attorney deprived

him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).

B.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the

Supreme Court 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 the jury, and

proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-63. Four years later, in Blakely

v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d. 403 (2004), a majority of the Court held

that an enhanced sentence imposed by a judge under the Washington Sentencing Reform Act, which

was based on facts neither admitted by the defendant nor found by a jury, violated the Sixth

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Amendment to the United States Constitution. See Blakely, 124 S.Ct. at 2538. The Court

subsequently extended its holdings in Apprendi and Blakely to invalidate the mandatory nature of

the federal sentencing guidelines. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005). 

Relying on these authorities, defendant faults his attorney for failing to object to his sentence

on the grounds that the amount of drugs attributed to him was never determined by a jury or proved

beyond a reasonable doubt. The court initially observes that neither Blakely nor Booker had been

decided when defendant was sentenced in March 2004. The Fifth Circuit has repeatedly held that

there is no general duty on the part of defense counsel to anticipate changes in the law, and the

failure to do so does not give rise to a Sixth Amendment claim. Green v. Johnson, 116 F.3d 1115,

1125 (5th Cir. 1997). See also Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981) ("Clairvoyance

is not a required attribute of effective representation."). With respect to any alleged Apprendi error,

the law in effect at the time defendant was sentenced limited the holding in that case to "facts which

increase the penalty beyond the statutory maximum[.]" United States v. Doggett, 230 F.3d 160, 166

(5th Cir. 2000), cert. denied, 121 S.Ct. 1152 (2001); see also United States v. Meshak, 225 F.3d 556,

576-77 (5th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001). Here, the indictment charged defendant

with a drug offense involving, inter alia, "fifty (50) grams or more of 'crack cocaine,' a mixture and

substance containing cocaine base, a schedule II controlled substance[.]" (Indict. at 4, Ct. 1). The

jury found beyond a reasonable doubt that defendant conspired to possess with intent to distribute

50 grams or more of "crack" cocaine. The statutory maximum penalty for such an offense is life

imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). Defendant was sentenced to 292 months.

Consequently, there was no basis for an Apprendi objection. See Untied States v. Keith, 230 F.3d

784, 787 (5th Cir. 2000), cert. denied, 121 S.Ct. 1163 (2001) (Apprendi applies only to cases where

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sentence exceeds statutory maximum); Doggett, 230 F.3d at 165 (same). This ground for relief is

without merit and should be overruled.

RECOMMENDATION

Defendant's motion to correct, vacate, or set aside sentence should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: January 29, 2007.

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