The opinion of the court was delivered by: DAVID N. EDELSTEIN
EDELSTEIN, District Judge:
Petitioner, pro se, brings this motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255.
On February 29, 1988, two individuals were arrested in Fayetteville, North Carolina after their car was stopped by a North Carolina State Highway Patrolman. Upon searching the car, the patrolman found approximately four kilograms of cocaine. One of the two individuals arrested thereafter became a confidential informant. The confidential informant stated that the four kilograms of cocaine were being transported from Florida to New York for delivery to petitioner William Nelson Rivera. The confidential informant also provided two of petitioner's telephone numbers, one for petitioner's home in New Jersey and one for another location in New York City. The North Carolina State Highway Patrol referred the matter to the Drug Enforcement Administration, which initiated an undercover operation focussing on petitioner's identity and drug-related activities.
At the direction of law enforcement officials, the confidential informant made several recorded telephone calls to petitioner. During these telephone calls, petitioner provided the confidential informant with instructions regarding the completion of the drug delivery to New York City and arranged for a meeting. At approximately 7:00 p.m. on March 2, 1988, petitioner met with the confidential informant at the Market Diner in New York City, where petitioner informed the confidential informant that petitioner had already lined up a buyer for one of the kilograms of cocaine. Upon leaving the Market Diner, petitioner was arrested. Petitioner thereafter consented to a search of his New Jersey residence, where law enforcement officials found approximately $ 10,000 in cash, documents appearing to record sales of cocaine, approximately one pound of marijuana, and a .25 caliber automatic pistol.
Shortly thereafter, the Drug Enforcement Administration initiated civil administrative forfeiture proceedings with respect to a Chevrolet and $ 10,000 in cash, which were seized at the time of petitioner's arrest. Petitioner was notified of the forfeiture proceedings, but failed to file a claim either to the vehicle or to the cash. On June 1, 1988, the $ 10,000 in cash was forfeited to the Government and on June 24, 1988, the Chevrolet was forfeited to the Government, pursuant to 19 U.S.C. § 1609.
On May 9, 1988, petitioner pleaded guilty to a one-count Superseding Information charging him with conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. At sentencing, this Court ruled that petitioner's offense level be increased by two levels for possession of a gun during the commission of his offense, pursuant to United States Sentencing Guidelines ("USSG") § 2D1.1(b)(1) (Oct. 1987), and by an additional two levels because of petitioner's role as a supervisor in his offense, pursuant to USSG § 3B1.1(c). This Court sentenced petitioner to a one-hundred-and-thirty-five-month term of incarceration and imposed a fine of $ 182,335. See Sentencing Hearing Transcript, United States v. Rivera, S 88 Cr. 204 (DNE) (S.D.N.Y. July 29, 1988), at 15-16.
Thereafter, petitioner's trial counsel filed a notice of appeal. On October 27, 1988, the Court of Appeals for the Second Circuit dismissed the appeal on the ground that petitioner had defaulted by failing timely to submit any papers in support of his appeal. See United States v. Rivera, No. 88-1339 (2d Cir. Oct. 27, 1988).
In his § 2255 motion, petitioner claims that this Court erred in calculating petitioner's sentence in two respects: first, petitioner challenges the upward adjustment of his sentence for possession of the gun found in his apartment; second, petitioner claims that he was entitled to a downward departure at sentencing because of his status as a deportable alien. Petitioner further claims that his sentence violated the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution because of the prior civil administrative forfeiture proceedings. Finally, petitioner claims that his counsel was ineffective in that counsel (1) had a conflict of interest because he also represented the individual who allegedly owned the gun found in petitioner's apartment; (2) misinformed petitioner regarding what the range of petitioner's potential sentence would be if petitioner pleaded guilty; (3) failed to inform the Government of petitioner's willingness to cooperate in other investigations; (4) failed to provide petitioner with a copy of the presentence investigation report; and (5) failed to file an appeal on petitioner's behalf.
For the reasons discussed below, petitioner's claims with respect to his sentence and with respect to the Double Jeopardy Clause are procedurally barred.
In any event, even if neither of these claims is procedurally barred, they are nonetheless without merit. Furthermore, petitioner's ineffective-assistance-of-counsel claims are also without merit.
At the outset, this Court finds that petitioner is procedurally barred from bringing two of his claims on the instant § 2255 motion. Specifically, petitioner is procedurally barred from his claims regarding errors in sentencing and violation of the Double Jeopardy Clause.
It is well settled in this circuit that a petitioner who fails to raise a claim on direct appeal cannot raise that claim on a § 2255 motion "unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)); see also Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) (holding that the "cause and prejudice" requirement applies to federal prisoners seeking § 2255 relief for constitutional errors).
As discussed above, although petitioner filed a notice of appeal, he defaulted on his appeal by failing timely to submit papers in support of his appeal. A § 2255 motion is not designed to be a substitute for direct appeal. United States v. Frady, 456 U.S. 152, 165, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Having failed to raise his claims with respect to his sentence and with respect to the Double Jeopardy Clause on appeal, petitioner is procedurally barred from bringing these two claims on a § 2255 motion. Moreover, regardless of whether petitioner could establish cause for his procedural default, he cannot meet his burden of establishing that he has been prejudiced by his default because, as discussed below, these claims are without merit. Accordingly, petitioner's claims are procedurally barred.
Even if none petitioner's claims is procedurally barred, the motion must nevertheless be denied because each of petitioner's claims is without merit, as discussed below.
Petitioner's first claim is that this Court erroneously calculated his sentence in two regards. First, petitioner contends that his offense level was improperly increased by two levels, pursuant to USSG § 2D1.1(b)(1), because of the automatic pistol that was found in his apartment. Petitioner asserts that the gun belonged to a friend of his and denies that the gun was possessed in connection with petitioner's offense. In addition, petitioner stresses that the gun was found several miles from the scene of petitioner's arrest.
Second, petitioner contends that he was entitled to a "moderate"
downward departure at sentencing due to the fact that he will likely be deported once he has completed his term of incarceration. Petitioner argues that because of his status as a deportable alien, he is subject to more onerous conditions of confinement by the Bureau of Prisons, including ineligibility for placement in a minimum security prison or for placement in a half-way house or community custody program during the final portion of his prison term. Petitioner further argues that he may be subject to additional incarceration during deportation proceedings, as well as a "life sentence of banishment" from the United States in the form of his eventual deportation.
As a threshold matter, although the circuits are divided as to whether and under what circumstances violations of the Sentencing Guidelines are cognizable under § 2255, the Court of Appeals for the Second Circuit has held that errors in sentencing procedure are cognizable under § 2255
only if the petitioner "establishes that the violation constituted a 'constitutional or jurisdictional' error, United States v. Timmreck, 441 U.S. 780, 783, 99 S. Ct. 2085, 2087, 60 L. Ed. 2d 634 (1979) (citing Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)), or by showing that the error resulted in a '"complete miscarriage of justice"' or in a proceeding '"inconsistent with the rudimentary demands of fair procedure."' Id. 441 U.S. at 784, 99 S. Ct. at 2087 (quoting Hill, 368 U.S. at 428, 82 S. Ct. at 471). Femia v. United States, 47 F.3d 519, 525 (2d Cir. 1995) (quoting Lucas v. United States, 963 F.2d 8, 12-13 (2d Cir.), cert. denied, 121 L. Ed. 2d 199, 113 S. Ct. 270 (1992)); see also Brennan v. United States, 867 F.2d 111, 120 (2d Cir.) (stating that, absent exceptional circumstances, "non-constitutional or non-jurisdictional questions are generally procedurally foreclosed to a section 2255 petitioner if not raised on direct appeal" notwithstanding whether cause and prejudice could be shown under Frady), cert. denied, 490 U.S. 1022, 104 L. Ed. 2d 187, 109 S. Ct. 1750 (1989).
Petitioner's contention that this Court improperly enhanced his sentence pursuant to USSG § 2D1.1(b)(1) does not set forth a claim of constitutional or jurisdictional error, but rather a claim that this Court misapplied a particular provision of the Sentencing Guidelines in calculating his sentence; even were petitioner's contention correct, the error would not rise to the level of constitutional error. Nor does petitioner's claim raise the specter of a "complete miscarriage of justice" or a "proceeding inconsistent with the rudimentary demands of fair procedure." See Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962). To the contrary, this Court heard argument from both defense counsel and the Government regarding the § 2D1.1(b)(2) enhancement. See Sentencing Hearing Transcript, United States v. Rivera, S 88 Cr. 204 (DNE) (S.D.N.Y. July 29, 1988), at 7-9, 13-14.
Similarly, petitioner's contention that he was entitled to a downward departure at sentencing does not make out a claim of constitutional or jurisdictional error. Nor does this contention raise the possibility of a defect that would render petitioner's sentencing hearing a "complete miscarriage of justice" or a "proceeding inconsistent with the rudimentary demands of fair procedure."
As such, under the law of this circuit, petitioner's claims regarding purported errors at sentencing are not cognizable under § 2255. Even if petitioner's claims were cognizable under § 2255, however, both claims are without merit for the reasons discussed below.
a. Upward Adjustment for Possession of a Firearm
The version of the Sentencing Guidelines that governed petitioner's sentencing provided for an increase in the base offense level of two points "if a firearm or other dangerous weapon was possessed during commission of the offense." USSG § 2D1.1(b)(1) (Oct. 1987) (emphasis added).
The Commentary to § 2D1.1 states in relevant part: "The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." USSG § 2D1.1(b)(1), comment. (n.3). Petitioner's contention that he was not the owner of the automatic pistol found in his apartment is inconclusive. The Sentencing Commission's use of the term "possess" in both § 2D1.1(b)(1) and the accompanying commentary makes clear that the upward adjustment applies to a defendant who is in possession of a gun during the offense even if he does not hold actual title to the gun.
Moreover, petitioner's denial that the gun was possessed in connection with his drug offense is contradicted by the record. As noted in the commentary to § 2D1.1(b)(1), the two-level upward adjustment is appropriate unless it is "clearly improbable" that the automatic pistol seized from petitioner's apartment was connected to his offense. See United States v. Sweet, 25 F.3d 160, 162 (2d Cir. 1994). "Applicability of the specific offense characteristic of weapons possession during a narcotics offense is governed by the relevant-conduct guideline." Id. at 162 (citing USSG § 1B1.3(a)(ii); United States v. Quintero, 937 F.2d 95, 97 (2d Cir. 1991); United States v. Pellegrini, 929 F.2d 55, 56 (2d Cir. 1991) (per curiam)). "With offenses that involve 'aggregate harms', such as drug offenses, relevant conduct consists of all 'acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction.'" 25 F.3d at 162-63 (quoting USSG § 1B1.3(a)(2) and citing Pellegrini, 929 F.2d at 56).
While it is true that petitioner was arrested several miles from his apartment where the gun was located, the Government presented evidence that prior to the March 2, 1988 meeting at the Market Diner, the confidential informant made several telephone calls to petitioner at his apartment in New Jersey. Thus, the Government presented persuasive evidence that petitioner was in possession of a gun during negotiations with his co-conspirators--ie. during the course of the conspiracy to which petitioner pleaded guilty. This Court's ruling that the presence of the gun in petitioner's apartment warranted the two-level sentence enhancement pursuant to USSG § 2D1.1(b)(1) was, therefore, fully supported by the record. See United States v. Schaper, 903 F.2d 891, 896 (2d Cir. 1990) (use of "house phone to arrange cocaine deals" was factor supporting application of § 2D1.1(b)(1) upward adjustment where gun was found in defendant's residence and defendant was arrested while driving away from his residence); see also United States v. Stewart, 926 F.2d 899, 902 (9th Cir. 1991) (mere fact that gun was not present at place where overt act took place does not mean that gun had no connection to the conspiracy); United States v. Durrive, 902 F.2d 1221, 1231-32 (7th Cir. 1990) ("while temporal and spatial dimensions of a conspiracy are often difficult to delineate, the presence of the gun in the conspirator's headquarters several hours before a buyer was to appear and the day after negotiations took place strongly support a finding that Durrive possessed the weapon during the life of the conspiracy"). Accordingly, this claim is without merit.
b. Downward Departure Due To Status as a Deportable Alien
In United States v. Restrepo, 999 F.2d 640, 644 (2d Cir.), cert. denied, 126 L. Ed. 2d 352, 114 S. Ct. 405 (1993), the Court of Appeals for the Second Circuit addressed the question of whether a defendant's status as a deportable alien could ever form the basis for a downward departure from the Sentencing Guidelines. The Restrepo court held that "pertinent collateral consequences of a defendant's alienage" might serve as a valid basis for a downward departure "if those consequences were extraordinary in nature of degree." Turning to the specific consequences of defendant Restrepo's alienage, however, the court held that "none of the bases relied on by the district court, i.e., (1) the unavailability of preferred conditions of confinement, (2) the possibility of an additional period of detention pending deportation following the completion of sentence, and (3) the effect of deportation as banishment from the United States and separation from family, justified the departure." Id.
The pertinent collateral consequences of petitioner's alienage, as set forth in petitioner's moving papers, are precisely those addressed by the Second Circuit in Restrepo: the unavailability of preferred conditions of confinement, the possibility of an additional period of detention pending deportation, and deportation itself. The Second Circuit has ruled that such collateral consequences of petitioner's alienage do not serve as a valid basis for a downward ...