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Gonzalez v. United States

December 5, 2008

JOMILL GONZALEZ, PETITIONER-DEFENDANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-PLAINTIFF.



The opinion of the court was delivered by: David D. Dowd, Jr. U.S. District Judge

MEMORANDUM OPINION

I. Introduction

The petitioner seeks habeas relief from his conviction and sentence. The defendant is presently serving a sentence of 60 months following his conviction and the appeal of the government which successfully challenged the Court's initial sentence of 30 months following the petitioner's jury conviction. The thrust of the petitioner's claim for habeas relief is that he was denied the effective assistance of counsel during his trial. The Court conducted an evidentiary hearing on October 8, 2008 during which his trial counsel testified. (See Docket No. 121).

Counsel for the petitioner and the government then filed post evidentiary hearing briefs (Docket Nos. 124 and 125, respectively). Based on the Court's analysis which follows, the Court finds that the petitioner was denied the effective assistance of counsel and grants the writ.

II. A Review of the Pleadings

The initial indictment, filed on August 31, 2005 charged as follows:

The Grand Jury charges:

On or about August 10, 2005, in the Northern District of Ohio, Eastern Division, ANTONIO RODRIGUEZ, HECTOR SANCHEZ, and JOMILL GONZALEZ, defendants herein, did knowingly and intentionally distribute 500 grams or more of a mixture of substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B), and Title 18, United States Code, Section 2.

Subsequently, a superceding indictment was filed on September 14, 2005 which charged as follows:

The Grand Jury charges:

On or about August 10, 2005, in the Northern District of Ohio, Eastern Division, ANTONIO RODRIGUEZ, HECTOR SANCHEZ, and JOMILL GONZALEZ, defendants herein, did knowingly and intentionally possess with intent to distribute and did distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B) and Title 18, United States Code, Section

2. (Emphasis added).

III. The Government's Requested Jury Instructions

The United States Attorney's Office in this district, almost without exception, provides the Court, prior to the commencement of the trial, proposed jury instructions. Counsel for the government followed that practice. Its proposed jury instruction number 14, which ignored the text of the superseding indictment, stated as follows:*fn1

PROPOSED JURY INSTRUCTION NO. 14 Summary of Count 1, Statute Defining Offense and Essential Elements: **POSSESSION WITH INTENT TO DISTRIBUTE** 21 U.S.C. § 841(a)(1)

A. Charge

The indictment charges that on or about the 10th day of August, 2005, in the Northern District of Ohio, Eastern Division, the defendant, JOMILL GONZALEZ, along with co-defendants Antonio Rodriguez and Hector Sanchez, did possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, Section 841(a), United States Code and Title 18, Section 2, United States Code. (Emphasis added).

Title 21, Section 841(a) of the United States Code states in part that "it shall be unlawful for any person knowingly or intentionally to... possess with intent... distribute... a controlled substance."

The essential elements of the distribution of a controlled substance, each of which the government must prove beyond a reasonable doubt, are: First: that the defendant knowingly and intentionally possessed a mixture or substance containing a detectable amount of a controlled substance, in this case cocaine; and Second: that the defendant possessed the cocaine with intent to deliver it, or a portion of it, to someone else.

It is not necessary for you to be convinced that the defendant actually delivered the controlled substance to someone else, or that he made any money out of the transaction. It is enough for the government to prove, beyond a reasonable doubt, that the defendant had in his possession what he knew was a controlled substance and that he intended to deliver it to someone else.

The Court did not adopt proposed jury instruction number 14, but rather instructed the jury, in reliance on the text of the superseding indictment, as follows:*fn2

COURT:... Summary of count, statute defining offense and essential elements.

The indictment charges that on or about the 10th day of August, 2005, in the Northern District of Ohio, Eastern Division, the defendant Jomill Gonzalez along with co-defendants Antonio Rodriguez and Hector Sanchez did knowingly and intentionally possess with intent to distribute and did distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, Section 841(a), United States Code, and Title 18, Section 2, United States Code. (Emphasis added)

Title 21, Section 841(a) of the United States Code states in part that "It shall be unlawful for any person knowingly or intentionally to possess with intent, distribute, a controlled substance."

I instruct you again as a matter of law that cocaine is a Schedule II controlled substance.

The essential elements of the distribution of a controlled substance, each of which the government must prove beyond a reasonable doubt, are, first, that the defendant knowingly and intentionally possessed a mixture or substance containing a detectable amount of a controlled substance, in this case cocaine, and second, that the defendant possessed with intent to deliver it or a portion of it to someone else.

It is not necessary for you to be convinced that the defendant actually delivered the controlled substance to someone else or that he ...


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