The opinion of the court was delivered by: JOHN E. SPRIZZO
Petitioner pro se in the above-captioned action brings this 28 U.S.C. § 2255 petition to vacate his judgment of conviction on the grounds of ineffective assistance of counsel and government suppression of exculpatory and impeachment evidence concerning the informant. In the alternative, petitioner maintains that his sentence should be modified due to his "minor participation" in the proposed sale of cocaine. For the reasons that follow, the petition is denied.
Indictment 89 Cr. 594 charged Pedro Antonio Santana ("Santana") with two counts of narcotics violations, i.e., conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 (b)(1)(B). During Santana's four-day trial in November 1989, the government called a confidential informant, Gerson Ferrer ("Ferrer"), and two Special Agents of the Drug Enforcement Administration ("DEA") who established the following facts. On or about July 31, 1989, two DEA informants, one of whom was Ferrer (collectively the "informants"), met with an unidentified man at La Concha Restaurant on 162nd Street and Broadway. Ferrer Tr. (Nov. 27, 1989) at 53-6. The unidentified man took the informants in a car to 160th Street and Broadway to meet with petitioner, Pedro Antonio Santana ("Santana"), who stated that he could supply three kilograms of cocaine to Ferrer at a price of $ 17,500 per kilogram. Ferrer Tr. (Nov. 27, 1989) at 56. The informants set up a deal with Santana for later that afternoon and then went to 151st Street and Broadway to meet with John McKenna ("McKenna"), a DEA agent. Ferrer Tr. (Nov. 27, 1989) at 57.
After discussing the details of the investigation with agent McKenna and other DEA agents at 150th Street and Riverside, the informants drove, with the DEA agents following close behind, to 160th Street and Broadway to meet with Santana. Ferrer Tr. (Nov. 27, 1989) at 61-4. Ferrer met Santana at 160th Street and Fort Washington. McKenna Tr. (Nov. 29, 1989) at 245. The DEA surveillance team saw Santana make one phone call at the corner, and then both Santana and Ferrer went into apartment number 44 at 648 West 160th Street, McKenna Tr. (Nov. 29, 1989) at 247-50, where two of four individuals they met escorted them to a back room. Ferrer Tr. (Nov. 27, 1898) at 72-4. Ferrer testified that "they showed me two yellow bricks that they later opened, and I tested and I believe was cocaine. And they also pulled out a gray case which contained several packages of plastic Ziploc bags." Ferrer Tr. (Nov. 27, 1989) at 74. After testing the quality of the two uncut bricks, Ferrer told Santana that he had to go downstairs to get the money for the cocaine. Ferrer Tr. (Nov. 28, 1989) at 88-90.
After Santana and Ferrer exited the building, DEA agent McKenna arrested Santana and then proceeded with the other DEA agents to apartment 44. McKenna Tr. (Nov. 29, 1989) at 249-50. The DEA agents recovered one kilogram of cocaine in apartment 44 and two other kilograms in an alleyway outside. McKenna Tr. (Nov. 29, 1989) at 251-54.
In his defense at trial, Santana raised a claim of entrapment by the informant. He testified to a number of chance meetings with Ferrer at which he repeatedly refused Ferrer's request to participate in his drug transaction. Santana Tr. (Nov. 29, 1989) at 334, 344. According to Santana, on the day he was arrested, he was not selling cocaine. Rather, as Santana testified, his sole function was to protect Ferrer during the drug transaction. Santana Tr. (Nov. 29, 1989) at 347.
On November 30, 1989, a jury found Santana not guilty on the conspiracy count and guilty on the substantive count of possession with intent to distribute three kilograms of cocaine in violation of 21 U.S.C. § 841(b)(1)(B). On February 28, 1990, the Court sentenced Santana to seventy-eight months imprisonment, four years supervised release, and a $ 50 special assessment on each count.
On December 26, 1990, Santana's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). In January 1991, Santana filed a pro se appellate brief in which he claimed that the Court abused it's discretion in not allowing Santana the opportunity to review the presentence report, that the evidence established entrapment as a matter of law, and that the Government's use of the informant constituted conduct so outrageous that petitioner's due process rights were violated. By summary order dated April 15, 1991, the Second Circuit relieved appellate counsel and affirmed the judgment of conviction. Petitioner does not pursue, in these collateral proceedings, any of the grounds set forth in his pro se memorandum.
In his § 2255 petition, Santana now attacks his conviction on the grounds that the ineffective assistance of trial counsel and appellate counsel violated his sixth amendment right to counsel and that the government suppressed exculpatory and impeachment evidence concerning the informant. In the alternative, Santana maintains that his sentence should be modified to account for his alleged "minor participation" in the proposed sale of cocaine.
It is the general rule that where, as here, a defendant has failed to raise a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom. Campino v. United States. 968 F.2d 187, 189 (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 can not be fairly attributed to him," Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991), and the "prejudice" must be so substantial that it undermines the integrity of the entire trial. Frady, 456 U.S. at 169-170.
The Second Circuit has recently, however, carved out an exception to the Campino requirement that a § 2255 petition establish "cause." For those § 2255 petitions that raise an issue of ineffective assistance of counsel, "cause" does not have to be established unless (1) the petitioner was represented by new appellate counsel on direct appeal, or (2) the claim is based solely on the record developed at trial. See Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993). Santana has raised two grounds for his claim of ineffective assistance of counsel: (1) that trial counsel failed to act as an effective advocate when the prosecutor allegedly withheld exculpatory and impeachment evidence concerning the informant; (2) that appellate counsel filed an Anders brief without petitioner's knowledge. Although new counsel was appointed on appeal, these claims are not based solely on the record developed at trial, and therefore they fall within the Billy-Eko exception to Campino.
Nevertheless, Santana's claims of ineffective assistance of counsel lack merit. The standards governing Santana's claim of ineffective assistance of counsel are well-settled. The defendant must: (1) overcome a strong presumption that his counsel's conduct was reasonable and show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms;" and (2) "affirmatively prove prejudice," that is, show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); see also United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990); United States v. Reiter, 897 ...