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RODRIGUEZ v. UNITED STATES

October 28, 1994

SALVADOR RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.

 Petitioner in the above-captioned action brings this second 28 U.S.C. § 2255 petition to vacate his sentence, this time on the grounds that the Court should have departed downward in his sentence since he will face unduly harsh collateral consequences from his status as a deportable alien and that the Court erroneously failed to make a specific factual finding as to the quantity of cocaine involved in the conspiracy. For the reasons that follow, the petition is denied.

 BACKGROUND

 On May 22, 1990, Petitioner pled guilty to conspiring to possess in excess of 500 grams of cocaine with intent to distribute. See 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B). After the prosecutor advised the Court that the mandatory minimum sentence applicable to Rodriguez's case was five years, Plea Transcript dated May 22, 1990 ("Plea Tr.") at 3, the Court addressed Rodriguez as follows:

 
You have heard what the government has said about what the maximum is here. Let me tell you that the five-year mandatory minimum means that I must impose a sentence of at least five years. Whatever additional time you receive between five years and the forty-year maximum, which the statute provides, will be to some extent controlled by what we call the sentencing guidelines.

 At sentencing on July 31, 1990, the prosecutor advised the Court that Rodriguez's guidelines range of fifty-one to sixty-three months reflected a two-point reduction for acceptance of responsibility and a two-point reduction for a minor role in the offense. Sentencing Transcript dated July 31, 1990 ("Sent. Tr.") at 2-4. The Court sentenced Petitioner to the mandatory minimum under the statute of sixty months. Id. at 8.

 Rodriguez did not appeal his conviction.

 On September 21, 1992, Rodriguez filed a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction. Rodriguez argued that his guilty plea was invalid because it was the result of incompetent advice from his attorney. In a Memorandum Opinion and Order dated February 22, 1993, this Court rejected Rodriguez's habeas motion. See Rodriguez v. United States, 814 F. Supp. 343 (S.D.N.Y. 1993). This Court reasoned both that Rodriguez's claims were procedurally barred since he had not filed a direct appeal and that, in any event, his claims lacked merit, since he had not established any unreasonable errors on the part of his attorney. Id. at 345.

 On April 27, 1993, Rodriguez filed a second § 2255 petition to vacate his sentence. In this new petition, Rodriguez challenges his sentence on the ground that he should have been awarded a downward departure since he will face unduly harsh collateral consequences from his status as a deportable alien and that the Court erroneously failed to make a specific factual finding as to the quantity of cocaine involved in the conspiracy.

 DISCUSSION

 Where, as here, a defendant has failed to raise a claim on direct appeal, his claim is barred from collateral review on a § 2255 petition unless he can demonstrate "cause" for the default of normal appellate procedure and actual "prejudice" from the alleged violation on which the claim is based. Campino v. United States, 968 F.2d 187 (2d Cir. 1992); see also United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1981). Under the cause and prejudice test, "'cause' . . . must be something external to the petitioner, something that cannot be fairly attributed to him," Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991) (emphasis in original), and the "prejudice" must be so substantial that it undermines the integrity of the entire trial. Frady, 456 U.S. at 169-70.

 All of the facts on which Rodriguez bases his claims for a downward departure in his sentence and for a specific factual finding as to the quantity of narcotics quantity were known to him no later than the time of sentencing, but were neither raised on direct appeal nor in his first § 2255 petition. The only explanation offered for that failure is the petitioner's assertion that he had a "lack of understanding of the legal process," Petitioner's Traverse to Government's Response at 10 ...


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