The opinion of the court was delivered by: JOHN E. SPRIZZO
Pursuant to 28 U.S.C. § 2255, Andre Rodriguez brings the instant pro se petition to vacate his sentence upon the ground that the Court misapplied the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G."), and upon various grounds of ineffective assistance of counsel. For the reasons that follow, the petition is denied.
At all times pertinent to this action, Miguel Gonzalez operated as a confidential informant for the Drug Enforcement Administration ("DEA"). During the fall of 1991, the Drug Enforcement Agency ("DEA") conducted an undercover narcotics operation which was facilitated by Gonzalez. Trial Transcript ("Tr.") 79.
Following numerous discussions, Gonzalez and Pablo Benitez agreed to arrange the sale of four kilograms of cocaine to a third party. Tr. 80-83. Unbeknownst to Benitez, an undercover DEA agent was to act as that third party. Id. at 80-81. In order to arrange the transaction, Benitez contacted Andre Rodriguez who agreed to supply the four kilograms of cocaine. Id. at 529-34. On November 20, 1991, Rodriguez informed Benitez that the cocaine would be transacted one kilogram at a time. Id.
On November 21, 1991, Benitez arrived at Gonzalez's apartment building in one automobile, followed by Andre Rodriguez and Marco Rodriguez in another vehicle. Tr. 100-02. Benitez entered the sixth-floor apartment, while Marco Rodriguez remained outside in the hallway and Andre Rodriguez circled the block in an automobile. Id. at 102-07. When Benitez entered the apartment, Gonzalez, another individual and two undercover DEA agents were already inside. Id. at 95-96. While one undercover DEA agent posed as the purchaser, the other agent remained out of view in another room. Id. at 364-66.
In the apartment, the purchasing agent showed Benitez the purchase money and requested the narcotics. Tr. 364-66. After viewing approximately $ 80,000 and counting out $ 22,000 thereof, the purchase price for one kilogram, Benitez agreed to bring the one kilogram up to the apartment. Id. If time permitted, the three additional kilograms of cocaine were to be purchased later in the day. Id. at 550. Benitez then proceeded downstairs to meet Andre Rodriguez, who was waiting in a parked automobile. Id. at 367. At that point, Rodriguez got out of the car, opened the trunk of the vehicle, removed one kilogram of cocaine from a black briefcase, put it into a yellow duffle bag, and handed it to Benitez. Id. 368, 549.
During the foregoing sequence of events, additional DEA agents conducted video surveillance in a van parked across the street.
Tr. 324. In addition, these agents conducted audio surveillance via an electronic wire worn by the purchasing agent. Id. at 328-31. Based upon their surveillance, the DEA agents arrested Benitez inside the apartment building and arrested Marco Rodriguez outside of the sixth-floor apartment. Id. at 495-96. Shortly thereafter, Andre Rodriguez was arrested at a public telephone in front of the building. Id. at 382.
On December 3, 1991, Benitez, Andre Rodriguez and Marco Rodriguez were indicted for possession of cocaine with an intent to distribute in violation of 21 U.S.C. § 841 and conspiracy to possess four kilograms of cocaine with an intent to distribute in violation of 21 U.S.C. § 846. On February 28, 1992, a jury convicted Andre Rodriguez on both counts of the indictment. On May 19, 1992, the Court sentenced Rodriguez to a term of imprisonment of 97 months, a term of supervised release of four years and a $ 50 special assessment on each count. On May 28, 1992, new appellate counsel filed a direct appeal on behalf of Rodriguez. On March 15, 1993, the Second Circuit affirmed the conviction. See United States v. Rodriguez, Nos. 92-1287, 92-1307 (2d Cir. Apr. 7, 1993).
On January 13, 1994, Andre Rodriguez filed the instant pro se petition, which must be construed liberally and deferentially. See Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993). In his petition, Rodriguez argues that the Court should have employed the one kilogram of cocaine actually delivered in determining his base offense level, rather than the four kilograms negotiated. Rodriguez also sets forth three claims of ineffective assistance of counsel: that trial counsel failed to move to suppress the audio and video surveillance tapes, failed to challenge his warrantless arrest and failed to move to suppress evidence collected incident thereto. For the reasons that follow, the petition must be denied.
Where a defendant, such as Rodriguez seeks collateral review pursuant to § 2255, he must establish "that the sentence was imposed in violation of the Constitution . . . or that the Court was without jurisdiction to impose such sentence." 28 U.S.C. § 2255. It is well-established, however, that the "failure to raise a claim on direct appeal is itself a default of normal appellate procedure which a defendant can overcome only by showing cause and prejudice." Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). In this case, Rodriguez did not assert the instant claims on direct appeal, and he has failed to demonstrate any cause for that procedural default in the instant petition.
Accordingly, the instant petition is procedurally barred.
Rodriguez argues that his ineffective assistance claims fall within the exception to the cause and prejudice test set forth in Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993). In Billy-Eko, the Second Circuit held that notwithstanding the failure to raise an ineffective assistance claim on direct appeal, such claims are properly brought under § 2255, unless (1) the petitioner was represented by new appellate counsel on direct appeal and (2) the claim was based solely upon the trial record. Id. at 114-16; Douglas v. United States, 13 F.3d 43, 48 (2d Cir. 1993). In this case, however, Rodriguez was represented by new appellate counsel on direct appeal and his claims here are based entirely upon the trial record. That record amply reflects the background of the confidential informant, Tr. 67-79, the circumstances surrounding the audio and video surveillance tapes, id. at ...