NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0700n.06 No. 10-3672 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. JOHN F INLEY, IV, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL F ROM THE UNITED STATE S DISTRICT COURT F OR THE NORTHERN DISTRICT O F OHIO

BEFORE: McK

EAGU E and WHITE , Circuit Judges; BARRETT, District Judge. *
HELE NE N. WHITE , Circuit Judge. After a jury trial, Def endant- Appellant J ohn Finley , I V (F inley

), was found g uilty of distributing 50 g rams or more of coca i n e b as e (crack)

. He was
sentenc ed to a mandatory min i m u m s en t ence of life in prison. Finley appea ls, asser ting (1) ineffe ctive assist an ce of counsel and (2) that he shoul d be re-sente nced under the Fa ir Sentencing Act of 20 1 0 , wh i ch wa s passed while this appea l was pending , and under which the mandatory minimum sentenc e for

Finley ’s offe nse would be te n y ear s. We AF F IRM

. I. Finley sold 248 g rams of coca ine to a confide ntial informant, Damon Towns, who had called Finley to arra ng e a meeting wher e they discussed t he purchase. At the m eeting , neither ma n used

The Honorable Michael R . Ba rre tt, United States District J udg e for the S outhern District * of Ohio, sitting by

desig nation.No. 10-3672

United States v. Finley the word coca ine or specifie d whether the s ale would be for powde r coc aine or cra ck cocaine, but Finley told Towns that the produc t would “come ba ck” w hen y ou “roc k it up,” and that it “almost look[ s] like it’s rocke d up alre ady .” Towns testified that “roc ked u p ” m ea n s cra ck-c ocaine

. The men met ag ain later

that evening and F inley

purcha sed nine ounc es of the dr ug for $6000. Finley was arr ested and char g ed with the knowing and intentional distribution of 50 g rams

or m ore of a mi x ture or sub s t ance containing a detectable amount of cocaine base (crac k), U.S .C. § 841(a) (1), ( b)(1) (A). A t the arr aig nment, Finley enter ed a ple a of not g uilty

. The g overnme nt filed an information g iving notice of its intent to rely in sentenc ing on one prior drug conviction for Finley

. The prior conviction raised the mandatory minimum sentenc e from
ten y ear s to twenty y ear s. 21 U.S.C. §§ 851(a) (1), 8 4 1 (b )( 1 )(A)

. A chang e of plea hear ing was schedule d for a few day s later, but prior to the hear ing Finley told his counsel that he was not g oing
to chang e his plea to g

uilty and that he had reta ined new counsel. Finley ’s new counsel proce eded to file a ser ies of fr ivolous mot ions, which the district court summarily denied. 1

The motions included, inter alia , a Motion for a Bill of Particulars, a Motion for Production 1 of C lassified R ecor ds rela ted to Def endant a nd/or this Case, a Motion for Dismi ssal due to Gra nd J ury I rre g ularities, and a

Request for Production of All Classified Records. The Motion for a B ill of P articula

rs contained reque sts including, “2. Please identify the m eaning o f t h e l ett ers ‘CR’ in the case number listed on the docket,” “9. Please identify the locus delicti of the alleg ed crimes in Count 1, in rela tion to the Constit utio n o f the United States and the 10th Amendment,” and “12. Please identify the differ ence betwee n the ‘UNI TED STATES OF AMERI CA’ and the United States.” The Motion for Dismissal Due to Gra nd J ury I rre g ularities arg ued that the g rand jury sy stem is unconstitutional and reque sted that the court dismiss the proce eding s and “initiate an investiga tion o f the US Attorney s office and their prac tices, to bring in the FB I or US Marsha l s o r an ‘indepe ndent’ ag ency

of the g overnme nt to conduct that investig ation, and to investig ate eac h and ever y conviction in which these [gra nd jury ] proce eding s took place .” An additional, leng thy motion arg ued that 18 U.S.C. § 3231, the statute co n fe rr i n g orig inal jurisdiction to United States district courts over offe nses ag ainst the laws of the United States, is unconstitutional beca use no quorum was -2-No. 10-3672

United States v. Finley At the final pre trial hea

ring , the district court judg e sug g ested to Mr. Finley that he should
g ive strong considera

tion to acc epting the g overnme nt’s plea deal, which would have resulted in a
sentenc e of twenty y ear s to life, beca use the g overnme nt was likely to find another previous felony conviction for dr

ug s and he w ould wind up with life imprisonment if convicted. Finley ’s counsel then filed an objection to the use of his prior conviction on the basis that his conviction was void b ec au s e t h e trial court failed to proper ly impose post-rele ase control at
sentenc ing. The g overnme nt then filed a second information providing notice that it intended to use
two additional felony drug convictions to incre ase Fi nley ’s sentenc e. I f found g uilty , Finley now fac ed a mandatory minimum sentenc e of life imprisonment. 21 U.S.C. § 841(b) (1 )( A). Subsequently , Finley filed a second objection to the use of prior convictions on the same basis as the first objection—that the convictions wer e void beca use of improper imposit ion of post -r elease control. During the trial, the jury hear d from DEA Ag ent J ohn Clay ton, who afte r taking possession of the drug s conducte d an initial “pre sumptive test” that showed coca ine was prese nt. The jury also hear d from Alexandra Ambriz, a fore nsic chemist with the DEA, who testified that she deter mined throug h testing tha t the drug s were coca ine base and not powder coca ine. The de fense also ca lled
two chem i s t s , Be n

jamin Corpus, who had been hired by Finley ’s orig inal lawy er, and L indsay Reinhold. Howeve r, both Corpus and Reinhold conce ded that their tests indicated that the substance

was c ocaine base.

in place w hen the House of Repre sentatives voted on the bill in 1947. -3-No. 10-3672

United States v. Finley The jury found Finley g uilty of distributing more than 50 g rams of coca ine base. Finley filed

a motion for new trial, which was denied. Prior to sentenc ing, Finley filed a sentenc ing motion and

a separ ate sent en cing memorandum reque sting downwar d depar tures based on the sentenc ing disparity betwee n powder coca ine and cra ck coca ine and on the basis that mandatory minimum life
sentenc es constitute crue l and unusual punishment. Both wer e denied. Finley ’s advisory Guidelines
sentenc ing rang e, based on a total offe nse level of 32 and six criminal history points, was 151 to 188 months. However , under 21 U .S.C. § 841(b) (1)( A), Finley was sentenc ed on May 19, 2010 to the then mandatory minimum sentenc e of life in prison. Under the 2010 Fa ir Sentencing Act, which was

enac ted and beca

me eff ective on Aug ust 3, 2010, Finley ’s statutory -minimum sentenc e would be ten
y ear s. 21 U.S.C. § 841(b)(1)( B)

. II. Inef fective Assistance of Cou nsel Finley claims he was denied eff ective assistance of counsel based on numerous missteps by his counsel prior to, during , and afte r his trial, including the various frivolous motions filed prior to trial. Finley also claims his attorney pers u ad ed h i m not to enter into a plea ag ree ment with the
g overnme nt, failed to proper ly prepa re for the centr al issue the defe nse soug ht to dispute at trial, namely , whether the drug mix ture he was acc used of selling was cra ck coca ine, and g ener ally proved himself incompetent to handle the case throug h frivolous motions and biz arr e comments. A. The Record is Not Sufficiently Deve loped to Addre ss Finley ’s I neff ective Assistance of Counsel Claim on Direct Review Under Strickland v. W

ashington , a defe ndant claiming ineffe ctive assi s ta n c e o f c o u n s e l mu s t show that (1) counsel’s perf ormanc e was defic ient and (2) that the err or was prejudicia l. 466 U.S.

-4-No. 10-3672

United States v. Finley 668, 686 (1984). Howeve r, beca use the evidenc e introduced at trial will be devoted to issues of
g uilt or innocenc e, “the resulting rec ord in many case s will not disclose the fac ts nece ssary to decide either prong of the Strickland analy sis.” Massaro v. United States , 538 U.S. 500, 505 (2003). The

rec ord may not contain evidenc e of the rea sons for appar entl y o dd or defic ient actions taken by

co u n s el. Acc ording ly , “[t] he appellate court may have no way of knowing whether a seeming l y unusual or misguided action by counsel had a sound strateg ic motive or was taken beca use the counsel’s a lternatives we re e ven wor se.” Id. There fore , a defe ndant g ener ally may not an raise ineffe ctive assistance of counsel claim for the first time on direc t appea l beca use “ther e has not been an opportunity to develop and include in the re cord e vidence bear ing on the merits of the a lleg ations.” United States v. Martinez , 430 F.3d 317, 338 (6th Cir. 2005) (quoting United States v. W under , 919 F.2d 34, 37 (6th Cir. 1990)). Such claims are best broug ht in a post-conviction proce eding under 28 U.S.C. § 2255, wher e the parties

can develop an adequate rec ord on the issue. Id. (citing United States v. Brown , 332 F.3d 363, 368 (6t h Cir. 2003)). When, howeve r, the rec ord is adequate to assess the merits of the defe nd an t ’s alleg ations, they

may be conside red. See W

under , 919 F.2d at 37 (6th Cir. 1990) (holding that the

rec ord was adequa

te to c o n s id e r a

n d dismiss defe ndant’s claim that he rec eived ineffe ctive assistance of counsel); United States v. Pierce , 62 F.3d 818 ( 6th Cir. 1995) (finding without analy sis that the

rec ord was adequately develope d to consider and dismiss defe ndant’s ineffe ctive assistance claim). 2

Finley cites no case in which a claim of ineffe ctive assistance of counsel was considere d and 2 granted on direc t review

. -5-No. 10-3672

United States v. Finley Finley arg ues that his trial counsel’s incompetenc e is so appar ent that this Court need not wait for further development of the rec ord. He arg ues that in addition to the frivolous pretria l motions, the motions objecting to the use of Finley ’s prior convictions on the basis that the trial court failed to proper ly impose post-rele ase control at sentenc ing wer e clea rl y wrong beca

use the prior convictions had arisen from conduct t hat occurre d prior to the ex istence of post-rele ase control in Ohio. (F inley Reply Br

. at 5 (citing State v. Foster , 845 N.E.2d 470 (2006)) .) Finley notes that his counsel’s reque st for a downwar d depar ture sug g ests he was altog ether unawa re that Finley was not subject to the advisory g uidelines but was fac ing a statutory penalty requiring a mandatory -minimum
sentenc e of life in prison. Finally , Finley arg ues that his attorney was clea rly defic ient in abandoning
neg otiations with the g overnme nt and proce eding to trial even though the g overnme nt and defe nse chemists ag ree d that the substance Finley sold was cr ack- coca ine. Finley raises serious questions a bout the competenc e of his defe nse counsel. Howeve r, we

are not pers u ad ed to depar t from the g ener al rule that such a claim should be broug ht in a postconviction proce eding pursuant to 2 8 U. S

. C

. § 2 255. The rec ord does not contain evidenc e reg arding why defe nse counsel filed the various motions at issue or whether he had a sound rea son
to call the defe nse’s chemists as witnesses. Additionally , there is evidenc e in the rec ord to sug g est that Finley may have instructed his counsel not to acc ept any plea ag ree ment that acknow ledg ed the sale of cra ck cocaine. T h e p ar t ies should be given the opportunity to develop the rec ord on these issues. Acc ording ly , we de cline to hea r F inley ’s ineff

ective- assistance claim on direc t appea l. III. Re-Sente ncing Und er t he F air Sentencing Act of 2010

-6-No. 10-3672

United States v. Finley Finley further arg ues that he should be re- sentenc ed under the Fa ir Sentencing Act of 2010, Pub. L

. No. 111-220, 124 Stat. 2372 (2010) (“F SA”), which was passed while Finley ’s appea l was pending , and which raised the quantity thresholds for mandatory minimum sentenc es for offe nses involving cra ck-c ocaine , there by reduc ing the d i s p ar i t y betwee n sentenc es for cra ck and powder

coca ine. Under the curr ent version of 21 U. S

. C

. § 8 4 1 , Finley ’s offe nse, involving 248 g rams of

coca ine and two o r m o re prior felony drug offe nses, does not meet the 280 g ram threshold now require d fo r a ma

n d a to r y mi n im u m s e n te nce of life imprisonment. See 21 U.S.C. § 841(b)( 1)(A) (iii). The g overnme nt responds that under the “g ener al saving s statute,” 1 U.S.C. § 109, the FSA may not be re troac tively

applied to Finley

. The g ener al saving s statute provides in re levant par t: The repe al of any statute shall not have the eff ect to rele ase or exti ng uish any penalty , forf eiture, or liabilit y incurre d under such statute, unless the repealing Act shall so expressly provide, and such statute shall be trea ted as still rema ining in forc e for the purpose of

sustaining a

ny proper action or pr osecution for the enf orce ment of such penalty , forf

eiture, or liability

. 1 U.S.C. § 109. We ha ve previously held that the g ener al saving s statute applies to the FSA. United States

v. Carradine , 621 F.3d 575, 580 (6th Cir. 2010)

. I n Carradine , the def endant, who pleade d g uilty
to possession with intent to distribute coca ine and, like Finley , was sentenc ed prior to the enac tment of the FSA, arg ued he was entitled to the benef it of the FSA, which had been passed while his appea l

was pending , and under which he would not have been subject to the 60-month statutory minimum
sentenc e under 21 U.S.C. § 841(b)( 1)(B )(iii). Id. We conclude d that the FSA “conta ins no express
statement that i t i s re t ro ac t i ve nor can we infer any such express intent from its plain lang uag e.”
-7-No. 10-3672

United States v. Finley Acc ording ly , we conclude d the district court proper ly applied “the penalty provision in place at the time Carra dine committed the cr ime in question.” Id. Our sister circ uits have uniformly rea ched the same result and declined to apply the FSA to defe ndants in Finley ’s situation, i.e., defe ndants who wer e sentenc ed prior to enac tment of the FSA. See United States v. Goncalve s , 642 F.3d 245, 252–255 (1st Cir. 2011); United States v. Acoff , 634 F.3d 200, 202 (2d Cir. 2011); United States v. Ree vey , 631 F.3d 110, 114–15 (3d Cir. 2010); United States v. Bullard , 645 F.3d 237, 248–49 (4th Cir. 2011); United States v. Doggins , 633 F.3d 379, 384 (5th Cir. 2011); United States v. Bell , 624 F.3d 803, 814–15 (7th Cir. 2010); United States v. Smith , 632 F.3d 1043, 1047–49 (8th Cir. 2011); United States v. Baptis t , 6 4 6 F. 3 d 1 225, 1229 (9th Cir. 2011); United States v. Lewis , 625 F.3d 1224, 1228 (10th Cir. 2010) ; United States v. Gomes , 621 F.3d 1343, 1346 ( 11th Cir. 2010). I n Dorsey v. Un ited States , — U.S. —, 2012 WL 2344463 (June 21, 2012), the Supreme Court rec ently

held that the F SA applies to all offe nders se ntence d afte r the F SA’s eff ective date, Aug ust 3, 2010, even if their crimes wer e committed prior to Aug ust 3, 2010. This clar ification does
not help Finley , however, as h e was sentenc ed prior to Aug ust 3, 2010. I t thus appea rs that Carradine , as clar ified by Dorsey , controls. I n other words, the district court proper l y s entenc ed Finley in acc ordanc e with the law in e ffe ct at the time of his sente ncing

. Finley seeks to distinguish Carradine on the basis that “the saving clause does not prese rve the harshe r criminal punishment contained in a superse ded statute in a case , like Mr. Finley ’s, wher e this now-super seded law would (1) no longe r serve any leg islative p u rp o s e, or (2) conflict with a chang ed constitutional landscape.” (F inley Br . at 40–41.) I n support of the fir st arg ument, Finley
-8-No. 10-3672

United States v. Finley cites Hamm v. City of Rock Hill , 379 U.S. 306 (1964), wher e the Supreme Court held that the
passag e of the Civil Rights Act of 1964 require d vaca ting pending convictions under state trespass
statutes for “sit-in” demonstrators, even though the demonstrations took pla ce prior to the passag e of the Act. Hamm , 379 U.S. at 308. The Supreme Court rea d the Civil Rights Act of 1964 to “prohibit[] the application of state laws in a way that would deprive any person of the rig hts g rante d under the Act.” Id. at 3 1 1

. The Court emphasized that afte r passag e of the Act, the offe nding conduct could no longe r be considere d a crime, beca use the Act “substitutes a rig ht for a crime.” Id.
at 314. Moreove r, the Court relied on the Supremac y Clause, and found that nonfinal prosec utions under state law must g ive way to a conf licting f eder al law. Id. at 315. Hamm also cited United States v. Chambers , 291 U.S. 217 (1934), for expressing a g ener al principle of “imputing to Congr ess an intention to avoid inflicting punishment at a time when it can

no lon ger further any leg islative purpose, and would be unnece ssarily vindictive.” Hamm , 379 U.S. at 313. But Chambers dismiss ed pending prosec utions under the National Prohibiti on Act afte r the passag e of the Twenty -F irst Amendment. Chambers , 291 U.S. at 222-23. Thus, Chambers also dealt with an enac tment that rende red previously cr i m i n al co nduct altog ether leg al. Fur ther, the Court noted that the g ener al saving s statute dealt only with cong ressional repe al of statutes, and not constitutional amendments, which rende red statutes inopera tive rathe r t han repea l ed , as such. Id.
at 224. Neither Chambers n o r Ha mm involved a cong ressional statute that mitigated a harsh
sentenc ing law but fell short of making previousl y cr i m i n al conduct leg al. On that question, a deca de afte r Hamm was decide d, the Supreme Court stated that “the saving clause has been held to bar application of ameliora tive criminal sentenc ing laws repe aling harshe r ones in forc e at the time
-9-No. 10-3672

United States v. Finley of the commission of an offe nse.” W arden, Lewisburg Penitentiary v. Marrero , 417 U.S. 653, 661 (1974) ( citations omitt ed). Finley also arg ues that the g ener al saving s statute should be narrowly construed in light of chan ges i n E q ual Protection jurisprudenc e since the Supreme Court decide d Marrero

. He cites Gr i f f ith v. Kentucky , 479 U.S. 314 (1987), for the proposition that “Equa l Protection require s chang es in the criminal law to a pply to c ases on appea l w hen the c hang e occ urre d.” (F inley Br . at 45.) Griffit h held that when the Supreme Court announce s a new const itutional rule of criminal
proce dure, such as the rule announced in Batson v. Kentucky which prohibited rac e-ba sed
p er emptory challeng es during jury selec tion, it must be applied retroa ctively to case s p en d i n g o n direc t revie w. Griffit h , 479 U.S. at 328. Griffit h conce rned the retroa ctive application of Supreme Court decisions and did not purport to apply to cong ressional statutes such as the FSA, to which the
g ener al saving s statute applies. I t is therefor e cle arly distinguishable f

rom Carradine

. Finley nonetheless seeks to extend Griffit h by arg uing that the principles of equal protec tion

on which Griffit h is based should apply with equal forc e to leg islative chang es, such as the FSA, that

are enac ted in order to addre ss perc eived equal protec tion violations. But the g ener al saving s statute require s Congr ess to furnish an express statemen t o f retroa ctive application. Fur ther, Griffit h specific ally

limit ed its holding to newrules announc ed by the Supreme Court, noting that: Un l i k e a leg islature, we do not promulg ate new rules of constitutional crimin al proce dure on a broad basis. Rather, the nature of judicial revie w require s that we adjudicate specific case s , an d eac h case usually become s the vehicle for announce ment of a new rule. Bu t af t er we h ave decide d a new rule in the case selec ted, the integ rity of judicial revie w require s that we apply that rule to all simil ar case s pending on direc t review

.

-10-No. 10-3672

United States v. Finley Griffit h , 479 U.S. at 323. Acc ording ly , we conclude that our decision in Carra d i n e , as clar ified by Dorsey , controls and that Finley was proper ly sentenc ed under the penalty provision in place at the time he was
sentenc ed for

the cr ime in question. IV. Conclusion For the fore g oing r easons, we AF F IRM Finley ’s conviction and se ntence

.

-11-