McCoy v. U.S.
Trial counsel's failure to object to the government's second offender notice may not qualify as ineffective assistance of counsel. A jury convicted the petitioner, Tranel McCoy, of possession with intent to distribute marijuana and cocaine base and possession of a firearm in furtherance of drug trafficking. The five-year minimum sentence was increased to 10 years, because the government filed a second offender notice, pursuant to 21 United States Code §851, based on McCoy's earlier conviction for the alleged sale of narcotics, in violation of Connecticut General Statutes §21a-277(a). In the earlier case, McCoy entered an Alford plea. At that time, Connecticut criminalized conduct that did not meet the federal definition of "felony drug offense." McCoy's trial counsel did not file an objection to the government's second offender notice, based on the earlier conviction, and the District Court sentenced McCoy to 181 months, which was below the U.S. Sentencing Guidelines range. In 2011, McCoy filed a writ of habeas corpus and argued that because he entered an Alford plea in connection with the earlier conviction, there was insufficient proof of a "felony drug offense." The District Court found that McCoy failed to establish cause or prejudice excused his failure to object to the second offender enhancement on direct appeal. Also, he failed to prove ineffective assistance of counsel. McCoy appealed. To prove ineffective assistance, a petitioner must establish: 1.) counsel's representation fell below an objective standard of reasonableness; and 2.) but for counsel's errors, the result would have been different. Counsel's performance must be assessed as of the time of counsel's conduct, and McCoy's attorney did not qualify as incompetent, pursuant to the prevailing norms. "We should not fault trial counsel," wrote the 2nd Circuit, "for failing to raise an objection to the second offender enhancement the legal basis for which was not sustained until almost three years after trial." After McCoy's trial, a court held for the first time that a C.G.S. §21a-277(a) conviction did not qualify as a conviction for a "serious drug offense." The 2nd Circuit affirmed the "thoughtful" ruling and order of the District Court, Kravitz, J.