1

The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1181

___________

Terrance David Burkhalter, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

United States of America, *

*

Appellee. *

___________

Submitted: November 16, 1999

Filed: February 17, 2000

___________

Before WOLLMAN, Chief Judge, LAY, and BOWMAN, Circuit Judges. 

___________

WOLLMAN, Chief Judge.

Terrance David Burkhalter appeals from the district court’s1

 denial of his 28

U.S.C. § 2255 petition to correct, set aside, or vacate his sentence. We affirm.

On January 29, 1997, Burkhalter pleaded guilty, pursuant to a plea agreement,

to one count of possessing cocaine base, or crack cocaine, with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). In the plea agreement,
-2-

Burkhalter stipulated that the controlled substance that he possessed both on the date

of his arrest and on an earlier occasion that the court considered to be relevant conduct

was “cocaine base (‘crack cocaine’).” Also, during the colloquy accompanying his

plea acceptance, Burkhalter admitted that these substances were crack cocaine and

conceded that he did not doubt that the government could bring in a witness to testify

to this fact. Burkhalter’s attorney, however, did not demand that the government

produce such a witness, nor did he demand that it otherwise confirm the identity of the

substances as crack cocaine. The court then applied the provisions of U.S.S.G. §

2D1.1(c) that relate to crack cocaine and sentenced Burkhalter to 151 months’

imprisonment and five years’ supervised release. Burkhalter did not take a direct

appeal.

Burkhalter filed his section 2255 petition on April 27, 1998, alleging that he was

denied due process and effective assistance of counsel. After denying Burkhalter’s

petition, the district court granted a certificate of appealability on the issue of whether

Burkhalter was denied the effective assistance of counsel when his attorney failed to

require the government to prove that the controlled substances that formed the basis of

his sentence were crack cocaine. Although the government asserts that Burkhalter has

waived his right to appeal and also that his claim is procedurally barred, we choose to

avoid these more complex issues because we believe that Burkhalter’s claim is easily

resolved on the merits. See Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999)

(en banc), cert. denied, 120 S.Ct. 120 (1999) (“[J]udicial economy sometimes dictates

reaching the merits if the merits are easily resolvable against a petitioner while the

procedural bar issues are complicated.”). 

Claims of ineffective assistance of counsel are governed by the two-part test set

forth in Strickland v. Washington. See 466 U.S. 668, 687 (1984). Under Strickland,

a defendant claiming ineffective assistance of counsel must show that his attorney’s

performance was deficient and that the deficient performance prejudiced his defense.

See id.; Bounds v. Delo, 151 F.3d 1116, 1119 (8th Cir. 1998).
-3-

Under the deficient performance inquiry of Strickland, we consider whether

counsel’s performance was reasonable “under prevailing professional norms” and

“considering all the circumstances.” See Fields v. United States, No. 98-3025, slip op.

at 4 (8th Cir. Jan. 12, 2000) (quoting Strickland, 466 U.S. at 688). We presume that

counsel acted reasonably, and we grant much deference to counsel’s performance. See

Parkus v. Bowersox, 157 F.3d 1136, 1139 (8th Cir. 1998). In this case, Burkhalter

repeatedly admitted in both his plea agreement and during the colloquy before the court

that he was in possession of crack cocaine at the time he was arrested and on a separate

relevant occasion. Burkhalter also acknowledged during the colloquy that the

government had submitted for laboratory testing the substances seized on those

occasions, that they were found to be crack cocaine, and that the government could

undoubtedly establish this fact. Finally, in his interview with the officer who prepared

his presentence investigation report, Burkhalter reiterated that the substances at issue

were in fact crack cocaine. 

In light of these repeated and unequivocal statements by Burkhalter regarding the

nature of the substances at issue, we cannot say that it was unreasonable for counsel

to accept his client’s admission that these substances were crack cocaine. See

Strickland, 466 U.S. at 691 (“[W]hen a defendant has given counsel reason to believe

that pursuing certain investigations would be fruitless or even harmful, counsel’s failure

to pursue those investigations may not later be challenged as unreasonable.”); Lingar

v. Bowersox, 176 F.3d 453, 461 (8th Cir. 1999). This is particularly true considering

counsel’s knowledge of Burkhalter’s admitted history of using and selling crack

cocaine, and the resulting familiarity with crack cocaine that such activity fosters. See

United States v. Marsalla, 164 F.3d 1178, 1179-80 (8th Cir. 1999); United States v.

Brown, 156 F.3d 813, 816 (8th Cir. 1998) (“[A]mong the most knowledgeable experts

on crack are those who regularly smoke it or sell it.”). Counsel therefore had no reason

to question the accuracy of Burkhalter’s statements regarding the nature of the

substances at issue. Burkhalter was admittedly experienced in handling crack cocaine

and had repeatedly stated that the narcotics that he possessed on the two relevant
-4-

occasions were crack cocaine. Accordingly, counsel’s failure to force the government

to further prove the identity of these substances did not constitute deficient performance

under the Strickland test. 

In so holding, we reject Burkhalter’s assertion that because admissions

resembling his have been found to be insufficient to bring into play the enhanced

sentencing provisions applicable to crack cocaine, it was unreasonable for counsel to

rely on his admissions. Burkhalter relies upon two cases in which the court held that

a defendant’s admission to possessing “cocaine base” does not by itself make section

2D1.1(c)’s sentencing enhancements applicable because Note D of that subsection

provides that only the cocaine base known as “crack,” which is just one type of cocaine

base, is subject to enhanced sentencing. See United States v. Adams, 125 F.3d 586,

590-92 (7th Cir. 1997); United States v. James, 78 F.3d 851, 855-58 (3rd. Cir. 1996).

What gave those courts pause, and what ultimately caused them to require additional

proof regarding the substance at issue, was the possibility that the defendants did not

actually possess crack cocaine but rather some other subset of cocaine base that, unlike

crack cocaine, was not subject to sentence enhancement. See Adams, 125 F.3d at 592;

James, 78 F.3d at 858. In this case, however, Burkhalter consistently stated that the

substances that he possessed on the two relevant occasions were crack cocaine, the

very subset of cocaine base that is subject to an enhanced sentence under section

2D1.1(c). Therefore, it was reasonable for counsel to conclude that Burkhalter’s

admissions made applicable the sentencing enhancements of section 2D1.1(c). See

United States v. Kang, 143 F.3d 379, 380 (8th Cir. 1998) (finding defendant’s

admission to possessing “crack” sufficient to make applicable sentencing enhancements

of section 2D1.1(c)).

The judgment is affirmed.
-5-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.