McCoy v.

11-3457
McCoy v. United States
* The Honorable Richard W. Goldberg, of the United States
Court of International Trade, sitting by designation.
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UNITED STATES COURT OF APPEALS 2
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FOR THE SECOND CIRCUIT 4
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August Term, 2012 8
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(Argued: December 13, 2012 Decided: January 30, 2012) 10
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Docket No. 11-3457 12
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T RANELL M C C OY , 15
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Petitioner-Appellant, 17
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–v.– 19
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U NITED S TATES OF A MERICA , 21
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Respondent-Appellee. 23
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27
Before: 28
W ESLEY , H ALL , Circuit Judges, Goldberg, Judge. *
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Appeal from the district court’s judgment of August 9, 31
2011, entered pursuant to its ruling and order of August 4, 32
2011, denying Petitioner-Appellant Tranell McCoy’s petition 33
for writ of habeas corpus and issuing a certificate of 34
appealability as to McCoy's ineffective assistance of 35
counsel claim. In its ruling and order, the district court 36
held, inter alia, that McCoy's trial counsel was not 37
constitutionally defective for failing to challenge a second 38
offender notice filed by the government, see 21 U.S.C. § 39

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851, which caused the five year mandatory minimum sentence 1
for McCoy's convictions to increase to ten years, see 21 2
U.S.C. § 841(b)(l)(B). We affirm. 3
4
A FFIRMED . 5
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STEVEN B. RASILE, Law Offices of Mirto & Rasile, 9
LLC, West Haven, CT for Petitioner-Appellant. 10
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ROBERT M. SPECTOR, Assistant United States 12
Attorney (Sandra S. Glover, Assistant United 13
States Attorney of Counsel, on the brief), for 14
David B. Fein, United States Attorney for the 15
District of Connecticut, New Haven, CT for 16
Respondent-Appellee. 17
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P ER C URIAM : 21
Petitioner-Appellant Tranell McCoy appeals from the 22
district court’s judgment of August 9, 2011, entered 23
pursuant to its ruling and order of August 4, 2011, denying 24
his petition for writ of habeas corpus and issuing a 25
certificate of appealability as to McCoy’s ineffective 26
assistance of counsel claim. In its ruling and order, the 27
district court held, inter alia, that McCoy's trial counsel 28
was not constitutionally defective for failing to challenge 29
a second offender notice filed by the government, see 21 30
U.S.C. § 851, which caused the five year mandatory minimum 31
sentence for McCoy’s convictions to increase to ten years, 32
see 21 U.S.C. § 841(b)(l)(B). McCoy v. United States, No. 33

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3:09-cv-1960 (MRK), 2011 WL 3439529, at *1 (D. Conn. Aug. 4, 1
2011). For the following reasons, we affirm. 2
I. 3
In August 2006, a jury convicted McCoy on charges 4
contained in two separate indictments, including conspiracy 5
to possess with intent to distribute five grams or more of 6
cocaine base; possession with intent to distribute five 7
grams or more of cocaine base; possession with intent to 8
distribute marijuana; and possession of a firearm in 9
furtherance of a drug trafficking crime. Id. 10
Before trial, the government filed a second offender 11
notice pursuant to 21 U.S.C. § 851. In that notice, the 12
government indicated its intent to rely on a prior felony 13
drug conviction that would subject McCoy to a sentencing 14
enhancement under 21 U.S.C. § 841(b). The offense 15
identified by the government was McCoy’s 1996 conviction for 16
the sale of narcotics in violation of Connecticut General 17
Statutes § 21a-277(a). In that 1996 case, McCoy entered an 18
Alford plea, i.e., McCoy never admitted to the facts 19
underlying his conviction. See North Carolina v. Alford, 20
400 U.S. 25 (1970). McCoy’s trial counsel did not object to 21
the second offender notice, which caused McCoy’s five year 22
mandatory minimum sentence to increase to ten years. See 21 23

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1 McCoy filed his original § 2255 petition in December 2009. He
amended his petition in January 2010. The claims raised in his
original and January 2010 amended petition, as well as the district
court’s disposition of those claims, are not relevant to this appeal.
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U.S.C. § 841(b)(l)(B). The district court ultimately 1
imposed a non-Guidelines sentence of 181 months’ 2
imprisonment and eight years supervised release. On direct 3
appeal, McCoy’s appellate counsel did not object to the 4
second offender enhancement or any other aspect of his 5
sentence. McCoy, 2011 WL 3439529, at *6. 6
On March 17, 2011, McCoy filed an amended petition for 7
writ of habeas corpus pursuant to 28 U.S.C. § 2255 alleging 8
that (1) his sentence was illegal insofar as it was based on 9
a second offender enhancement under § 851; and (2) his trial 10
counsel was ineffective for failing to object to the second 11
offender enhancement. 1 McCoy argued, and the government now 12
concedes, that because he entered an Alford plea, the plea 13
transcript and other court documents did not provide a 14
sufficient basis for finding a predicate “felony drug 15
offense.” See 21 U.S.C. § 841(b)(l)(B). 16
The district court rejected both of McCoy’s claims. 17
With respect to his claim that his sentence was illegal, the 18
district court concluded that McCoy failed to establish 19
either cause or prejudice to excuse his failure to object to 20

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2 We review de novo a district court’s denial of a § 2255
petition. Fountain v. United States, 357 F.3d 250, 254 (2d Cir.
2004).
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the second offender enhancement on direct appeal. McCoy, 1
2011 WL 3439529, at *6-7. It reasoned that the legal basis 2
for his claim was “reasonably available at the time of Mr. 3
McCoy’s direct appeal,” and that he was not prejudiced 4
because “whether or not the second offender enhancement 5
applied, Mr. McCoy's sentence was in fact far below the 6
applicable Guidelines range." Id. at *6-8. The district 7
court also rejected McCoy’s ineffective assistance of 8
counsel claim, concluding that he did not meet the 9
requirements of the Strickland standard. Id. at *9-10; see 10
Strickland v. Washington, 466 U.S. 668 (1984). 11
Nevertheless, the district court issued a certificate of 12
appealability as to the ineffective assistance of counsel 13
claim. McCoy, 2011 WL 3439529, at *10. Although the court 14
was “confident that the performance of Mr. McCoy's trial 15
counsel was not constitutionally deficient,” it concluded 16
that “reasonable jurists could debate the Court’s 17
assessment” of this claim. Id. 18
II.2
19
To prevail on an ineffective assistance of counsel 20
claim, a habeas petitioner must demonstrate that: (1) his 21

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counsel’s representation fell below an objective standard of 1
reasonableness; and (2) there is a reasonable probability 2
that, but for counsel’s unprofessional errors, the result of 3
the proceeding would have been different. See Strickland, 4
466 U.S. at 687–88, 694. McCoy’s petition fails at both 5
steps. 6
McCoy bears a “heavy” burden to establish that trial 7
counsel’s performance was unreasonable under “‘prevailing 8
professional norms.’” Harrington v. United States, 689 F.3d 9
124, 129-30 (2d Cir. 2012) (quoting Harrington v. Richter, 10
131 S. Ct. 770, 788 (2011)). In this vein, he argues that 11
trial counsel’s failure to object to the second offender 12
notice fell below prevailing professional norms and was 13
constitutionally deficient. 14
McCoy premises his claim on a discrepancy between the 15
Connecticut and federal drug schedules. When McCoy entered 16
an Alford plea in 1996, Connecticut General Statutes 17
§ 21a-277(a) criminalized some conduct that did not fall 18
within the federal definition of a “felony drug offense.” 19
Specifically, Connecticut criminalizes conduct involving two 20
obscure opiate derivatives, thenylfentanyl and 21
benzylfentanyl, that no longer fall within the federal 22
definition of a “felony drug offense.” Compare Conn. 23

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Agencies Regs. § 21a-243-7(a)(10), para. 52, with 21 U.S.C. 1
§ 811(a)(1),(h)(2); 51 Fed. Reg. 43025 (Nov. 28, 1986); 50 2
Fed. Reg. 43698 (Oct. 29, 1985). Thus, to establish that 3
McCoy’s state conviction qualified as a predicate offense 4
triggering a § 851 sentence enhancement, the government 5
concedes that it needed to rely on court documents “in which 6
the factual basis for [McCoy's] plea was confirmed by the 7
defendant.” Shepard v. United States, 544 U.S. 13, 26 8
(2005). Instead, the government categorically relied on 9
McCoy’s 1996 Alford plea. 10
We agree with the district court that trial counsel’s 11
failure to object to the second offender enhancement does 12
not constitute constitutionally deficient performance. As 13
the court explained, at the time of McCoy’s trial and 14
sentencing the District of Connecticut “had proceeded with 15
the long-held belief that prior Connecticut convictions for 16
sale of narcotics qualified categorically as . . . felony 17
drug offenses under 21 U.S.C. § 841(b)(1).” McCoy, 2011 WL 18
3439529, at *9 (internal quotation marks and citation 19
omitted); see also Sarah French Russell, Rethinking 20
Recidivist Enhancements: The Role of Prior Drug Convictions 21
in Federal Sentencing, 43 U.C. Davis L. Rev. 1135, 1199-1202 22
(2010) (same). Accordingly, the performance of McCoy’s 23

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3 A “serious drug offense” under § 924 includes any offense
that qualifies as a “felony drug offense” under § 841. See 18
U.S.C. § 924(e)(2); 21 U.S.C. § 802(44).
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trial counsel did not “amount[] to incompetence under 1
prevailing professional norms” as examined from counsel’s 2
perspective at the time. Harrington v. Richter, 131 S. Ct. 3
at 788 (internal quotation marks and citation omitted). 4
McCoy does not contest that this was the prevailing 5
professional norm at the time of his trial and sentencing. 6
Instead, he argues that trial counsel should have objected 7
to the second offender enhancement based on developments in 8
the law that occurred after his trial. We disagree. 9
Several weeks after trial, a district court in 10
Connecticut held, for the first time, that a conviction 11
under Connecticut General Statute § 21a-277(a) was not 12
categorically a conviction for a “serious drug offense” 13
under 18 U.S.C. § 924(e) because of the criminalization in 14
Connecticut of benzylfentanyl and thenylfentanyl. 3 United 15
States v. Madera, 521 F. Supp. 2d 149, 154-55 (D. Conn. 16
2007); see also United States v. Lopez, 536 F. Supp. 2d 218, 17
221-222 (D. Conn. 2008) (same); United States v. Cohens, No. 18
3:07-cr-195 (EBB), 2008 WL 3824758, at *4-5 (D. Conn. Aug. 19
13, 2008) (same). A year after Madera, we held that a 20

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conviction under § 21a-277(b) was not categorically a 1
conviction for a “controlled substance offense” as that term 2
is defined in U.S.S.G. § 4B1.2(b), the career offender 3
guideline. United States v. Savage, 542 F.3d 959, 960 (2d 4
Cir. 2008). 5
But “[a]n attorney is not required to forecast changes 6
or advances in the law" in order to provide effective 7
assistance. Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 8
2001) (internal quotation marks and citation omitted). 9
Rather “counsel’s performance must be assessed . . . as of 10
the time of counsel’s conduct without the benefit of 11
hindsight.” Id. (internal quotation marks omitted). 12
Moreover, even after Madera, Lopez, Cohens, and Savage, it 13
was not immediately apparent to the defense bar that an 14
Alford plea to Connecticut’s controlled substance laws could 15
not categorically serve as the basis to enhance a sentence 16
under 21 U.S.C. § 841(b). These cases did not address the 17
long-accepted use of the categorical approach to determine 18
whether a defendant has been convicted of a prior felony 19
drug offense under § 841(b). Indeed, it was not until June 20
29, 2009 that the government acknowledged § 21a-277(a) 21
criminalized conduct involving narcotic substances not 22
covered by the federal definition of a “felony drug offense” 23

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used in 21 U.S.C. §§ 802(44) and 841(b)(1). See Sentencing 1
Mem. of United States at 6-8, United States v. Jackson, No. 2
3:06-cr-151 (MRK) (D. Conn. June 29, 2009) (ECF No. 96). We 3
should not fault trial counsel for failing to raise an 4
objection to the second offender enhancement the legal basis 5
for which was not sustained until almost three years after 6
trial. See Sellan, 261 F.3d at 315. 7
McCoy counters that the district court placed him in a 8
“Catch 22” by finding that his claim did not overcome the 9
“cause” portion of the procedural default standard, while 10
also concluding that counsel was not deficient because the 11
argument was novel at the time of the sentencing. But McCoy 12
ignores the differences between determining whether cause 13
exists to excuse a procedural default and whether counsel’s 14
performance was constitutionally deficient. As the district 15
court carefully explained, the reason that McCoy failed to 16
establish cause for failing to raise the challenge below is 17
because the argument was “reasonably available” to McCoy and 18
nothing external prevented him from making it. McCoy, 2011 19
WL 3439529, at *6-7. But given the defense bar’s long-held 20
position that Connecticut narcotics convictions 21
categorically qualified under § 851, it did not constitute 22
ineffective assistance for trial counsel to fail to 23
challenge the second offender notice. Id. at *9. 24

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4 We decline to consider whether the performance of McCoy’s
appellate counsel was constitutionally deficient as this claim was not
included in the certificate of appealability. See Armienti v. United
States, 234 F.3d 820, 824 (2d Cir. 2000).
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Finally, even if trial counsel’s performance was 1
deficient, there is not a reasonable probability that, but 2
for counsel’s unprofessional errors, the result of the 3
proceeding would have been different. See Strickland, 466 4
U.S. at 694. The district court made it exceedingly clear 5
in its original written judgment and in its ruling on the 6
habeas petition that a lower mandatory minimum sentence 7
would not have changed McCoy’s sentence. 4 McCoy, 2011 WL 8
3439529 at *8-9. 9
III. 10
For the foregoing reasons, the judgment of the district 11
court, entered pursuant to its thorough and thoughtful 12
ruling and order, is AFFIRMED. 13

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