Gonzalez v. Huntley

Filing 23

MEMORANDUM OPINION AND ORDER DENYING Mr. Gonzalez's § 2254 1 Petition and DISMISSING this action WITH PREJUDICE. Signed by Judge James H Hancock on 9/25/2013. (JLC)

FILED
2013 Sep-25 PM 12:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARGARITO GONZALEZ,
pro se,

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) Case No. 7:09-cv-2596-JHH-MHH
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Petitioner,
v.
WARDEN RODNEY HUNTLEY,
et al.,
Respondents.

MEMORANDUM OPINION AND ORDER
Pursuant to 28 U.S.C. § 2254, petitioner Margarito Gonzalez seeks relief from
his state court conviction for trafficking and possessing marijuana.1 In his pro se
petition and in his reply to the State’s brief, Gonzalez asserts two federal
constitutional challenges to his conviction: he contends that he was denied effective
assistance of counsel at various stages of his state court proceedings, and he argues
that he was denied due process because the sentence enhancements that the state trial
court applied were not incorporated in his indictment. (Docs. 1, 21). For the reasons

1/

Mr. Gonzalez’s name appears as “Gonzales” in certain portions of the record. In this
opinion, the Court uses the spelling on Mr. Gonzalez’s habeas petition.
1

that follow, the Court finds that Mr. Gonzalez is not entitled to habeas relief.2
I.

FACTUAL BACKGROUND
On March 14, 2003, an Alabama Grand Jury indicted Mr. Gonzalez on one

count of trafficking in cannabis and one count of first degree possession of marijuana,
violations of Alabama Code §§ 13A-12-231 and 13A-12-213, respectively. (Doc. 81, pp. 10-11). On May 15, 2003, Mr. Gonzalez pled not guilty to the charges against
him. (Doc. 8-1, p. 41). Two months later, in conjunction with a pretrial conference,
the State of Alabama (“the State”) filed a “Notice of Intent to Invoke Enhanced
Sentencing Pursuant to 13A-12-250 & 13A-12-270.” (Doc. 8-1, pp. 5, 43). The
notice provides that under Alabama Code §§ 13A-12-250 and 13A-12-270, “the
defendant is subject to additional consecutive five-year sentences upon proof that the
sale offense charged in this action occurred within three miles of a school and/or
2/

When he filed his petition, Mr. Gonzalez was confined at the Childersburg Community Work
Center in Childersburg, Alabama. (Doc. 1, p. 8). On April 13, 2011, Mr. Gonzalez filed a
notice of change of address. (Doc. 22). His new address suggests that he no longer is
incarcerated. The Court contacted the Alabama Department of Corrections and discovered
that Mr. Gonzalez has been on probation since April, 2011. His release from custody does
not moot his petition. “Section 2254, by its literal terms, applies to persons ‘in custody,’ but
the Supreme Court has held that section 2254(a) is satisfied so long as the petitioner is in
custody when the petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923,
1925, 104 L.Ed. 2d 540 (1989) (per curiam). Completion of a criminal sentence does not
render a petition for habeas relief moot because the ongoing collateral consequences of a
wrongful conviction, such as the possible enhancement of a later criminal sentence on the
basis of the earlier wrongful conviction, satisfy the case-or-controversy jurisdictional
requirement of Article III of the Constitution. Spencer v. Kemma, 523 U.S. 1, 7-8, 118 S.Ct.
978, 983, 140 L.Ed.2d 43 (1998).” Jamerson v. U.S. Dep’t of Corrections, 410 F.3d 682,
686 (11th Cir. 2005).
2

within three miles of a housing project, respectively.” (Doc. 8-1, p. 43).
Unpersuaded by Mr. Gonzalez’s entrapment defense, on December 17, 2004,
a jury in the Circuit Court of Tuscaloosa County, Alabama found Mr. Gonzalez guilty
of unlawful possession of marijuana first degree and trafficking in cannabis. (Doc.
8-1, pp. 7-8, 74-75). The jury also concluded that Mr. Gonzalez committed the
trafficking offense within three miles of a school and of a housing project. (Doc. 8-1,
pp. 7-8).
On May 24, 2005, the trial court sentenced Mr. Gonzalez, a one-time previous
felony offender, to 25 years imprisonment on the trafficking conviction and two years
imprisonment on the possession conviction. (Doc. 1, ¶ 3; Doc. 8-1, p. 9).3 The trial
court directed that the two year sentence on the possession count should run
concurrently with the 25 year sentence on the trafficking count. (Doc. 8-1, p. 9).
Mr. Gonzalez appealed his conviction to the Alabama Court of Criminal
Appeals. In a memorandum opinion dated February 17, 2006, that court affirmed the
trial court’s decision. (Doc. 1, ¶9; Doc. 9-6). The Alabama Court of Criminal
Appeals subsequently denied Mr. Gonzalez’s application for rehearing. (Doc. 9-7).
3/

Because prior to his sentencing for trafficking, Mr. Gonzalez previously had been convicted
of a felony, the trial court had to impose a minimum 15 year sentence on the trafficking
count. Ala. Code. §§ 13A-5-9(a)(3) & 13A-12-231(1), (13). The trial court added ten years
to Mr. Gonzalez’s sentence because the school and housing project enhancements both carry
five year prison terms. Ala. Code §§ 13A-12-250, 13A-12-270. The trial court also imposed
a fine and various state assessments. (Doc. 8-1, p. 9).
3

Mr. Gonzalez did not seek certiorari review in the Alabama Supreme Court.
Consequently, the state court judgment against Gonzalez became final on March 28,
2006. (Doc. 9-8).
Within one year of the final judgment, on February 9, 2007, Mr. Gonzalez filed
a petition in the state trial court seeking post-conviction relief pursuant to Rule 32 of
the Alabama Rules of Criminal Procedure. (Doc. 1, ¶ 11; Doc. 9-9, pp. 3-60, 78-84).4
In that petition, he sought relief based on various theories, including ineffective
assistance of counsel and lack of jurisdiction to impose the“schoolyard” and “housing
project” enhancements because the enhancements were “never charged in the
indictment.” (Doc. 1, ¶ 11; Doc. 9-9, pp. 14-15, 80-84).
The trial court conducted an evidentiary hearing on Gonzalez’s Rule 32
petition. (Doc. 10-2, pp. 48 et seq.). The trial court received testimony from Mr.
Gonzalez and his wife and from his trial counsel, Mr. Bivens. (Doc. 10-3, pp. 23, 41,
70). Mr. Gonzalez did not call his appellate counsel to testify at the hearing, and he
did not offer evidence regarding his claim that his appellate counsel rendered
ineffective assistance. (Doc. 10-6, pp. 7-8). The state trial court denied Gonzalez’s

4/

The petition’s certificate of service is dated February 9, 2007. The petition, submitted by
Gonzalez while incarcerated, is therefore deemed filed on that date. See, e.g., Houston v.
Lack, 487 U.S. 266 (1988) (regarding “mailbox rule”); Holland v. State, 621 So. 2d 373 (Ala.
Crim. App. 1993) (unsworn certificate of service on Rule 32 petition accepted as true when
unchallenged in the trial court).
4

petition on March 28, 2008. (Doc. 1, ¶ 11(a)(8); Doc. 10-2, pp. 23-28).
Mr. Gonzalez challenged the order denying his Rule 32 petition in the Alabama
Court of Criminal Appeals. (Doc. 10-2, pp. 302-304). In Gonzales v. State, CR-071310 (Ala. Crim. App. Sept. 25, 2009), the Court of Criminal Appeals affirmed the
trial court’s judgment. (Doc. 10-6). Mr. Gonzalez applied for rehearing, but he was
unsuccessful. (Doc. 10-7; 10-8). He then filed a petition for a writ of certiorari in the
Alabama Supreme Court. In his writ petition, he essentially reasserted the theories
of relief that he presented in his Rule 32 motion. (Doc. 10-9). On December 11,
2009, the Alabama Supreme Court denied Mr. Gonzalez’s petition and entered a
certificate of judgment. (Doc. 10-10).
On December 17, 2009, Mr. Gonzalez filed his federal habeas petition. (Doc.
1, p. 1).5 Mr. Gonzalez does not take issue with his conviction for possession of
marijuana. Instead, his habeas petition focuses on his trafficking conviction and the
related sentence enhancements. In his petition Mr. Gonzalez raises two general
theories of relief: ineffective assistance of counsel under the Sixth and Fourteenth
Amendments of the United States Constitution and Strickland v. Washington, and

5/

Mr. Gonzalez signed the petition form and dated it as having been “executed”
on December 17, 2009. (Doc. 1, p. 8). Consequently, the Court deems the petition filed on that
date. The Clerk of Court docketed Mr. Gonzalez’s habeas petition on December 29, 2009. (Doc.
1, p. 1).
5

deprivation of due process. With respect to his ineffective assistance of counsel
argument, Mr. Gonzalez asserts that his trial counsel (1) failed to challenge the
admissibility during his trial of marijuana evidence from another case; (2) failed to
challenge the sentencing enhancements because they were not included in his
indictment; (3) failed to object to the prosecutor’s characterization of Gonzalez as a
“major drug dealer”; and (4) failed to protect Mr. Gonzalez by repeating the
prosecutor’s accusation that Mr. Gonzalez was a “major drug dealer” within the
hearing of the jury. (Doc. 1, pp. 4-7). Mr. Gonzalez criticizes his appellate counsel
for his failure to address a Batson jury selection issue in Mr. Gonzalez’s direct appeal.
(Doc. 1, pp. 6-7). Mr. Gonzalez contends that he was deprived of due process
because his indictment did not include sentencing enhancements that were imposed
at trial. (Doc. 1, pp. 4-7).
On February 11, 2010, the Court ordered the State to show cause why the Court
should not grant the relief that Mr. Gonzalez requested. (Doc. 6). The State
responded on March 2, 2010 and submitted evidentiary material in support of its
response. (Docs. 7-10). Mr. Gonzalez filed a reply brief on June 9, 2010. (Doc. 21).
Mr. Gonzalez’s petition is ripe for decision.
II.

DISCUSSION
As discussed fully below, the Court denies Mr. Gonzalez’s § 2254 petition for
6

habeas corpus with respect to his contention that his appellate counsel was ineffective
because Mr. Gonzalez did not properly preserve the argument in state court. The
Court also denies Mr. Gonzalez’s request for relief based on his trial attorney’s
purported ineffective assistance because Mr. Gonzalez has not demonstrated that his
attorney’s conduct was deficient or that he was prejudiced because of his attorney’s
alleged insufficient representation.

Finally, the Court is unpersuaded by Mr.

Gonzalez’s Apprendi argument regarding the trafficking sentence enhancements
because the State provided pretrial notice of the enhancements, and the jury made the
requisite findings of fact regarding the enhancements.
A.

Mr. Gonzalez is procedurally barred from pursuing his ineffective
assistance of appellate counsel argument.

This Court may not reach the merits of Mr. Gonzalez’s argument that his state
court appellate counsel was ineffective because Mr. Gonzalez did not preserve the
issue properly. Mr. Gonzalez contends that his appellate attorney should have
presented a Batson argument in Mr. Gonzalez’s direct appeal from his state court
conviction. (Doc. 1, pp. 6-7). Mr. Gonzalez raised this ineffective assistance of
counsel argument in his state post-trial motion; however, at the hearing on his Rule
32 motion, Mr. Gonzalez did not present evidence to support his contention that his
appellate attorney’s performance was deficient. In its order affirming the trial court’s
7

denial of Mr. Gonzalez’s Rule 32 motion, the Alabama Court of Criminal Appeals
held that:
Gonzalez presented no evidence whatsoever regarding this claim nor did
he call his appellate counsel (who was different than his trial counsel)
to testify at the evidentiary hearing. Therefore, this claim is deemed
abandoned.
(Doc. 10-6, p. 22). The abandoned claim rule is well-settled under Alabama law.
See, e.g., Miller v. State, 99 So. 3d 349, 425 (Ala. Crim. App. 2011); Brooks v. State,
929 So. 2d 491, 497 (Ala. Crim. App. 2005) (“At the evidentiary hearing Brooks
failed to ask [appellate counsel] any questions concerning her reasons for not
pursuing many of the claims he now challenges on direct appeal. We have held that
a petitioner is deemed to have abandoned [an ineffective assistance of counsel] claim
if he fails to present any evidence to support the claim at the evidentiary hearing.”).
“‘[W]hen a petitioner fails to raise his federal claims in compliance with
relevant state procedural rules, the state court’s refusal to adjudicate the claim
ordinarily qualifies as an independent and adequate state ground for denying federal
review,’” and the federal claim is procedurally defaulted. Taylor v. Secretary, Dep’t
of Corrections, 2013 WL 491570, *1 (11th Cir. Feb. 11, 2013) (quoting Cone v. Bell,
556 U.S. 449, 465 (2009)). The Eleventh Circuit employs a three-part test to
determine whether a state court decisions rests upon an “independent and adequate”
8

state ground:
(1) ‘the last state court rendering a judgment in the case must clearly and
expressly state that it is relying on state procedural rules to resolve the
federal claim without reaching the merits of that claim’[; (2)] the state
court’s decision must rest solidly on state law grounds, and may not be
‘intertwined with an interpretation of federal law[;]’ and (3) the state
procedural rule must not be applied in an arbitrary or unprecedented
fashion. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001).
Mason v. Allen, 605 F.3d 1114, 1119-20 (11th Cir. 2010). Because the Alabama
Court of Civil Appeals did not apply Alabama’s abandoned claim rule in an arbitrary
or unprecedented fashion, the state court’s denial of Mr. Gonzalez’s ineffective
assistance of appellate counsel claim rests on an independent and adequate state
ground.
Because his ineffective assistance of appellate counsel argument is
procedurally defaulted, the Court may reach the merits of the argument only if Mr.
Gonzalez can demonstrate either (1) that there was “cause” for the default and
resulting “prejudice,” or (2) that failure to review the claim will result in a
“fundamental miscarriage of justice.” Spencer v. Secretary, Dep’t of Corr., 609 F.3d
1170, 1179-80 (11th Cir. 2010); In re Davis, 565 F.3d 810, 821 (11th Cir. 2009). “To
establish ‘cause’ for procedural default, a petitioner must demonstrate that some
objective factor external to the defense impeded the effort to raise the claim properly

9

in the state court.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003)
(quotation marks and citation omitted); see also Murray v. Carrier, 477 U.S. 478, 488
(1986). “To establish ‘prejudice,’ a petitioner must show that there is at least a
reasonable probability that the result of the proceeding would have been different.”
Henderson, 353 F.3d at 892 (citation omitted).

The “miscarriage of justice”

exception applies “where a constitutional violation has resulted in the conviction of
someone who is actually innocent.” House v. Bell, 547 U.S. 518, 536 (2006) (citation
omitted). “[P]risoners asserting innocence as a gateway to defaulted claims must
establish that, in light of new evidence, ‘it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable doubt.’” House, 547
U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Mr. Gonzalez cannot demonstrate that some objective factor external to the
defense impeded his effort to raise his ineffective assistance of appellate counsel
claim in state court. Based on the state court record, it is apparent that Mr.
Gonzalez’s Rule 32 counsel did not argue that Mr. Gonzalez’s appellate counsel was
ineffective for failing to appeal the trial court’s ruling on Gonzalez’s Batson motion
because the argument would have been frivolous. Alabama law provides that to
succeed on a Batson challenge, the “burden of persuasion is initially on the party
alleging discriminatory use of peremptory challenges to establish a prima facie case
10

of discrimination. In determining whether there is a prima facie case, the court is to
consider ‘all relevant circumstances’ which could lead to an inference of
discrimination.” Ex parte Branch, 526 So. 2d 609, 622 (Ala. 1987) (quoting Batson
v. Kentucky, 476 U.S. 79, 93 (1986)). The trial court properly found that Mr.
Gonzalez’s trial counsel did not make a prima facie showing that race motivated the
State’s use of its peremptory strikes. (Doc. 8-3, pp. 31-32). Mr. Gonzalez’s trial
counsel merely stated:
I’m putting on the record a challenge to the State’s method of striking
under Batson and asking them to justify their strikes ... I didn’t have any
clear reading from some of the jurors that they said anything that would
cause them to be struck ... there’s just a limited number [of black jurors]
to be on the jury panel, and that’s why I raised the question.
(Doc. 8-3, pp. 31-32). The trial court replied, “I don’t find a prima facie case has
been made, so we’ll seat the jury.” (Doc. 8-3, p. 32). Mr. Gonzalez’s trial attorney
made no effort to pursue the argument.
Thus, Mr. Gonzalez’s appellate counsel did not appeal the Batson ruling
because the argument would be meritless under Alabama law, and his Rule 32
counsel undoubtedly understood that she would be unable to develop evidence to
support an ineffective assistance of appellate counsel claim. Nothing “external” to
the case affected Mr. Gonzalez’s Rule 32 counsel’s strategy.

11

Mr. Gonzalez does not argue that he is innocent of the crime of trafficking
marijuana. To the contrary, Gonzalez asserted an entrapment defense at trial. (Doc.
21, p. 21). Under Alabama law, Mr. Gonzalez had to concede that he committed the
underlying crime to pursue the entrapment defense. See Davis v. State, 840 So. 2d
945, 948 (Ala. Crim. App. 2002) (an entrapment defense under Alabama law requires
that a defendant who committed a crime demonstrate that he was induced to do so by
an agent of the state when he ordinarily would not engage in criminal activity) (relied
on by Mr. Gonzalez at Doc. 21, p. 33). Thus, the Court’s finding that Mr. Gonzalez’s
ineffective assistance of appellate counsel claim is defaulted will not result in a
fundamental miscarriage of justice. See House, 547 U.S. at 536-37 (quoting Schlup
v. Delo, 513 U.S. 298, 327 (1995)).
For these reasons, Mr. Gonzalez’s ineffective assistance of appellate counsel
claim is procedurally defaulted.
B.

Mr. Gonzalez’s ineffective assistance of trial counsel arguments are
unpersuasive.

In his habeas petition, Mr. Gonzalez contends that his trial counsel’s
performance was constitutionally deficient because counsel did not object to certain
evidence regarding 4.6 pounds of marijuana that Mr. Gonzalez sold. In addition, Mr.
Gonzalez asserts that his trial counsel was ineffective because he did not object when
12

the prosecutor called Gonzalez a “major drug dealer.” Familiar standards govern the
Court’s evaluation of the merits of Mr. Gonzalez’s ineffective assistance of trial
counsel claims.
The Sixth Amendment affords a criminal defendant the right to “the Assistance
of Counsel for his defense.” U.S. Const. Amend. VI. This right applies in state
criminal actions via the Due Process Clause of the Fourteenth Amendment. See
Gideon v. Wainright, 372 U.S. 335, 343-44 (1963). “It has long been recognized that
the right to counsel is the right to effective assistance of counsel.” McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970). To establish a claim of ineffective
assistance of counsel, a habeas petitioner must demonstrate (1) that “counsel’s
performance was deficient,” and (2) “that the deficient performance prejudiced the
defense” because the “errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
The petitioner generally carries the burden to establish both components. Lawhorn
v. Allen, 519 F.3d 1272, 1293 (11th Cir. 2008) (citing Atkins v. Singletary, 965 F.2d
952, 958-59 (11th Cir.1992)).6

6/

An exception to the petitioner’s burden to prove prejudice lies where the circumstances of
counsel’s ineffective assistance “are so likely to prejudice the accused that the cost of
litigating their effect ... is unjustified.” United States v. Cronic, 466 U.S. 648, 658 (1984).
Such circumstances exist when “the accused is denied counsel at a critical stage of his trial
... [or when] counsel entirely fails to subject the prosecution’s case to meaningful adversarial
13

To establish a constitutionally deficient performance by counsel, the Eleventh
Circuit has explained that the defendant must:
‘identify the acts or omissions ... that are alleged not to have been the
result of reasonable professional judgment’ to ‘show that counsel’s
representation fell below an objective standard of reasonableness’ and
‘outside the wide range of professionally competent assistance.’
Strickland, 466 U.S. at 687, 690. The ‘highly deferential’ reviewing
court must ‘indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,’ id. at 689,
and recognize that cases warranting the grant of habeas relief based on
an ineffective assistance claim ‘are few and far between.’ Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)
(quotation and citation omitted). ... ‘[T]he defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’ ’ Strickland, 466 U.S. at 689. ...
Because ‘it is all too easy to conclude that a particular act or omission
of counsel was unreasonable in the harsh light of hindsight,’ Bell v.
Cone, 535 U.S. 685, 702 (2002), we must make ‘every effort ... to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.’ Strickland, 466 U.S. at
689.
Lawhorn, 519 F.3d at 1293-94.
If the petitioner successfully identifies constitutionally deficient performance,
then to prove prejudice, he must convince the court, “that there is a reasonable
probability that, but for the counsel’s unprofessional errors, the result of the

testing.” Id. at 659.
14

proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
While a petitioner need not show that counsel’s deficient conduct “more likely than
not altered the outcome of the case,” it is not enough for the petitioner to show that
counsel’s errors merely had “some conceivable effect on the outcome of the
proceeding.” 466 U.S. at 693.
The Court finds Mr. Gonzalez’s arguments regarding ineffective assistance of
trial counsel unpersuasive.
1.

Failure to Object to Marijuana Evidence

According to Mr. Gonzalez, his trial counsel was ineffective because he did not
object to the introduction of evidence regarding 4.6 pounds of marijuana that were
not in Mr. Gonzalez’s possession at the time of his arrest and that were subject to a
certificate of analysis that bore the name of the individual to whom Mr. Gonzalez sold
the 4.6 pounds of marijuana. (Doc. 21, pp. 1-12). Mr. Gonzalez framed the issue this
way in his Rule 32 petition:
Trial Counsel failed to object to the State using the marijuana of a
separate and distinct case. State Exhibit 40, now, Petitioners Exhibit
"A",clearly shows that suspects Christopher Knox, Billy Jennings,
Johnetta Knox, were in Possession [sic] of two thousand seventy point
seven grams or four point six pounds of the marijuana introduced at
Gonzales' [sic] trial.
15

Petitioners Exhibit "B", The Certificate of Analysis bearing Gonzales'
[sic] name, shows 130.37 grams. This quantity of marijuana does not
constitute Trafficking in Marijuana. The State used the marijuana of
three other individuals, (Exhibit A) with a different case number to
obtain a trafficking in marijuana conviction against Gonzales [sic]. Trial
Transcript Pages (449-452) - (482-492)
Petitioners Exhibit "C"
Gonzales [sic] claims that had Counsel objected to the State’s use of the
marijuana belonging to other individuals, in his case, the outcome of the
proceeding would have been different.
(Doc. 9-9, pp. 78-79).
The trial court denied Mr. Gonzalez’s Rule 32 petition on this ground, finding
that Gonzalez “failed to prove he was entitled to relief on this claim by a
preponderance of the evidence.” (Doc. 10-2, pp. 25-26). The trial court noted that
there was “no proof” that five pounds of marijuana was brought into the courtroom
during trial. (Doc. 10-2, p. 25).
The Alabama Court of Criminal Appeals agreed with the trial court that Mr.
Gonzalez’s ineffective counsel argument regarding the marijuana evidence was
“meritless.” (Doc. 10-6, pp. 9-10). The Court explained that the marijuana evidence
was not inadmissible against Mr. Gonzalez simply because it was found in the
possession of the confidential informant to whom Mr. Gonzlez sold it at the time of

16

Gonzalez’s arrest. (Doc. 10-6, p. 11) (“Contrary to Gonzalez’s contention, merely
because he was not found in possession of the 4.6 pounds of marijuana that he had
obtained from Jennings and sold to Douglass does not render the marijuana
inadmissible against him.”). Moreover, the evidence was not inadmissible against
Mr. Gonzalez “merely because that marijuana could also be used in a case against”
the individual who sold the marijuana to Gonzalez. Id. Consequently, an objection
to the evidence would have been “baseless,” and “‘counsel could not be ineffective
for failing to raise a baseless objection.’” (Doc. 10-6, p. 11) (quoting Bearden v.
State, 825 So. 2d 868, 872 (Ala. Crim. App. 2001)). The appellate court added that
by stipulating that there was a certificate of analysis relating to the 4.6 pounds of
marijuana that Gonzalez argues should not have been admitted against him, Mr.
Gonzalez’s trial counsel kept that certificate out of evidence, thereby giving Mr.
Gonzalez a possible strategic advantage because that certificate of analysis contained
information about “the larger amounts of marijuana that were not related to the
trafficking or possession charges against Gonzalez.” (Doc. 10-6, p. 11).
This Court agrees with the Alabama Court of Civil Appeals. Mr. Gonzalez has
not demonstrated that his trial counsel’s conduct “‘fell below an objective standard
of reasonableness,’” and he has failed to overcome the “‘strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’”
17

Lawhorn, 519 F.3d at 1293-94. As the Alabama Court of Civil Appeals held,
objection to admission of the 4.6 pounds of marijuana would have been futile under
Alabama law. (Doc. 10-6, p. 11). U.S. v. Winfield, 960 F.2d 970, 974 (11th Cir.
1992)(“a lawyer’s failure to preserve a meritless issue plainly cannot prejudice a
client.”); Palmes v. Wainright, 725 F.2d 1511, 1523 (11th Cir. 1984) (“The sixth
amendment right to effective assistance of counsel does not require counsel to raise
every objection without regard to its merits.”). Indeed, “the challenged action ‘might
be considered sound trial strategy’” because by keeping the certificate of analysis at
issue out of evidence, Mr. Gonzalez’s trial counsel kept from the jury evidence about
sizeable amounts of marijuana that were related to the transaction that led to Mr.
Gonzalez’s arrest. Lawhorn, 519 F.3d at 1293-94 (quoting Strickland, 466 U.S. at
687, 689). Consequently, the Court denies Mr. Gonzalez’s application for writ of
habeas corpus on this ground. 18 U.S.C. §2254 (d).
2.

Failure to object when the prosecutor called Mr. Gonzalez a “major
drug dealer.”

Mr. Gonzalez argues that his trial counsel was ineffective because counsel did
not object when the prosecutor referred to Gonzalez as a “major drug dealer,” and

18

counsel later repeated the prosecutor’s words to the jury.7 (Doc. 1, p. 6). Gonzalez
contends the label was prejudicial because “Gonzalez’s defense was that of
entrapment. Certainly, if the jury believed that Gonzalez was in fact a major drug
dealer, then they would not be willing to believe his defense of entrapment.” (Doc.
1, p. 6). In denying Mr. Gonzalez’s Rule 32 petition, the trial court found that the
remark from Mr. Gonzalez’s attorney “was meant as sarcasm.” (Doc. 10-2, p. 26).
The Alabama Court of Criminal Appeals agreed. The appellate court wrote:
It is clear from the context in which counsel made the remarks that he
was doing so sarcastically in an attempt to make the jurors believe that
the State’s theory that Gonzales was, in fact, a major drug dealer was
ridiculous under the facts. In light of Gonzales’s defense of entrapment,
this was clearly trial strategy on the part of counsel and did not
constitute ineffective assistance.
(Doc. 10-6, p. 12-14).
In keeping with the cases discussed above, this Court finds Mr. Gonzalez’s
arguments regarding ineffective assistance of counsel unpersuasive on this point.
Consistent with the holdings of the trial court and the Alabama Court of Criminal
Appeals, this Court finds that Mr. Gonzalez’s trial counsel made a strategic decision
to use the prosecution’s phrase “major drug dealer” sarcastically to show the jury that

7/

In his reply brief, Mr. Gonzalez states that he was called a “major drug dealer” or “big-time
drug dealer.” (Doc. 21, p. 18).
19

Mr. Gonzalez was not such a person.
There is nothing in Mr. Gonzalez’s petition or in the record that enables Mr.
Gonzalez to overcome the presumption that trial counsel engaged in a constitutionally
permissible trial tactic. See Lawhorn, 519 F.3d at 1293-94. Accordingly, the Court
rejects Mr. Gonzalez’s claim of ineffective assistance of trial counsel based on this
theory.8
C.

The State’s failure to include sentence enhancements in Mr.
Gonzalez’s indictment does not violate Apprendi.

Mr. Gonzalez contends that his indictment is constitutionally deficient because
it does not mention the schoolyard and housing project sentence enhancements under
Alabama Code §§ 13A-12-250 and 13A-12-270 that extended his prison term by ten
years. Mr. Gonzalez argues that the omission constitutes a denial of due process
under Apprendi v. New Jersey, 530 U.S. 466 (2002).
Citing Hale v. State, 848 So. 2d 224 (Ala. 2002), the Court of Criminal Appeals
found that Mr. Gonzalez’s argument was “meritless” because “the sentence

8/

All trial tactics carry risks and benefits. If Mr. Gonzalez’s attorney had objected to the
prosecutor’s statement and the trial judge had overruled the objection, Mr. Gonzalez would
have been stuck with the label. Had counsel objected and the trial court sustained the
objection, then jurors may have wondered why Gonzalez’s attorney was so troubled by the
expression. In short, an objection is not always the best way for an attorney to combat
opposing counsel’s turn of phrase.
20

enhancements in §§ 13A-12-250 and 13A-12-270 do not have to be charged in the
indictment.” (Doc. 10-6, p. 17). In Hale, the Alabama Supreme Court held that “the
absence of sentence enhancement allegations from the indictment does not deprive
the trial court of jurisdiction to impose the enhancements.” 848 So. 2d at 233. Mr.
Gonzalez takes issue with the Court of Criminal Appeals’s decision, arguing that
Alabama state law on this procedural issue is at odds with Apprendi and that
Apprendi trumps the state court decisions. (Doc. 21, pp. 17-18).
In a footnote in Apprendi, the United States Supreme Court noted that the
defendant “relies entirely on the fact that the ‘due process of law’ that the Fourteenth
Amendment requires the States to provide to persons accused of crime encompasses
the right to a trial by jury, and the right to have every element of the offense proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 477, n. 3 (citations omitted). The
Court stated, “Apprendi has not here asserted a constitutional claim based on the
omission of any reference to sentence enhancement or racial bias in the indictment
. . . We thus do not address the indictment question separately today.” Apprendi, 530
U.S. at 477, n. 3. The Court nevertheless indicated that state prosecutors should
charge information relating to sentence enhancements in indictments, writing that in
Jones v. United States, 526 U.S. 227 (1999), the Court “noted that ‘under the Due
process Clause of the Fifth Amendment and the notice and jury trial guarantees of the
21

Sixth Amendment, any fact (other than a prior conviction) that increases the
maximum penalty for a crime must be charged in the indictment, submitted to a jury,
and proven beyond a reasonable doubt.’ The Fourteenth Amendment commands the
same answer in this case involving a state statute.” Apprendi, 530 U.S. at 476
(quoting Jones, 526 U.S. at 243, n. 6).
The Supreme Court’s recent discussion in Alleyne leaves no doubt that, “widely
recognized principles follow[] a well-established practice of including in the
indictment, and submitting to the jury, every fact that was a basis for imposing or
increasing punishment.” Alleyne v. United States, 133 S. Ct. 2151, 2159 (2013).
Tracing these principles to court practices dating from the 1840’s onward, Justice
Thomas explained:
This rule “enabled [the defendant] to determine the species of offence”
with which he was charged “in order that he may prepare his defence
accordingly ... and that there may be no doubt as to the judgment which
should be given, if the defendant be convicted.” Archbold 44 (emphasis
added). As the Court noted in Apprendi, “[t]he defendant’s ability to
predict with certainty the judgment from the face of the felony
indictment flowed from the invariable linkage of punishment with
crime.” 530 U.S., at 478, 120 S. Ct. 2348.
Alleyne, 133 S.Ct. at 2160 (emphasis in original).9 Recognizing the notice component
of due process and citing Apprendi, the Court observed, “[d]efining facts that increase
9/

Apprendi looks back to common law to examine the information which the State must
include in an indictment. Apprendi, 530 U.S. at 480-81.
22

a mandatory statutory minimum to be part of the substantive offense enables the
defendant to predict the legally applicable penalty from the face of the indictment.”
Alleyne, 133 S. Ct. at 2161 (citing Apprendi, 530 U.S., at 478-479, 120 S.Ct. 2348).
On the record in this case, this discussion about Apprendi and Alleyne is
academic because the jury, not the trial judge, found that Mr. Gonzalez committed the
crime of trafficking in marijuana within three miles of a school and a public housing
project. (Doc. 8-1, pp. 7-8,74). The jury’s factual findings produced the sentence
enhancements that the trial court applied under Alabama Code §§ 13A-12-250 and
13A-12-270.10 This jury finding satisfies the letter of Apprendi. Moreover, although
the indictment may not satisfy the spirit of Apprendi, Mr. Gonzalez received written
notice of the State’s intent to seek the school and housing project enhancements on
July 7, 2003, more than 18 months before Mr. Gonzalez’s trial began. (Doc. 8-1, pp.
5-6, 43). Therefore, Mr. Gonzalez had adequate notice of the State’s plan to pursue
those sentence enhancements well in advance of trial. He and his attorney had
enough time to formulate a strategy for responding to the State’s efforts to prove the
facts relating to the sentence enhancements.

10/

Because prior to his sentencing for trafficking, Mr. Gonzalez previously had been convicted
of a felony, the trial court had to impose a minimum 15 year sentence on the trafficking
count. Ala. Code. §§ 13A-5-9(a)(3) & 13A-12-231(1), (13). The trial court added ten years
to Mr. Gonzalez’s sentence because the school and housing project enhancements both carry
five year prison terms. Ala. Code §§ 13A-12-250, 13A-12-270.
23

Consequently, the Court is unpersuaded by Mr. Gonzalez’s argument that the
State’s failure to charge the school and housing project sentence enhancements in the
indictment violated Apprendi.11
III. CONCLUSION
For the foregoing reasons, Mr. Gonzalez’s § 2254 petition is DENIED and this
matter is DISMISSED WITH PREJUDICE.
DONE this the

25th

day of September, 2013.

SENIOR UNITED STATES DISTRICT JUDGE

11/

Similarly, Apprendi afforded Mr. Gonzalez’s trial counsel no legal basis for objecting to the
failure of the State to charge the sentence enhancements at in the indictment. Consequently,
Mr. Gonzalez’s argument that his trial counsel’s performance was deficient for failing to
challenge the indictment fails.
24