months' imprisonment, three years' supervised release and a $ 50 special assessment. Id. at 18-19.
Pursuant to a plea agreement, on July 12, 1993, Trentacosta's co-defendant Ron Miceli pleaded guilty to one count of RICO conspiracy in violation of 18 U.S.C § 1962(d) and one count of criminal forfeiture pursuant to 18 U.S.C. § 1963. See Transcript dated July 12, 1993 ("Miceli Tr.") at 27-28; Indictment S1 92 Cr. 0749 (JES) at counts 1, 33. The Miceli plea agreement recommended no fine and calculated the Guidelines range applicable to Miceli at fifty-one to sixty-three months' imprisonment and a maximum of three years' supervised release. Miceli Tr. at 26-28. The Court sentenced Miceli to a term of imprisonment of fifty-eight months on each count to be served concurrently, three years' supervised release, a $ 25,000 fine and a $ 100 special assessment. Id at 27.
On September 15, 1994, Trentacosta filed the instant petition which, read liberally, see Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), claims that the sentencing Court violated his constitutional rights in two ways. First, Trentacosta claims that the Court violated his due process rights by sentencing him to the high end of the Guidelines range as punishment for his assertion of his legal right to move for a downward departure. Second, Trentacosta claims that the Court violated his right to equal protection by sentencing him to the high end of the Guidelines range, a sentence that was unconstitutionally disparate from those imposed upon his co-defendants, who were sentenced at the middle or low end of their respective Guidelines ranges.
Trentacosta's petition must be denied because his claims are procedurally barred. Where, as here, a party fails to raise an issue on direct appeal and subsequently endeavors to litigate the issue in a habeas corpus petition, the petitioner must "show that there was cause for failing to raise the issue, and prejudice resulting therefrom." Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993) (citing Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992)). This is especially true given that Trentacosta took no direct appeal and waived his right to appeal a sentence like that imposed herein, which was within the agreed Guidelines range. See United States v. Pipitone, No. 94-1690, 67 F.3d 34, 1995 U.S. App. LEXIS 27855, *12, 1995 WL 580846, at **3 (2d Cir. Oct. 3, 1995).
Trentacosta fails to discuss, let alone establish, cause in his petition.
Nor can Trentacosta set forth any basis for his claim that the sentence imposed resulted "in a complete miscarriage of justice," see United States v. Addonizio, 442 U.S. 178, 185, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962)), because petitioner received a sentence falling squarely within, and specifically anticipated by, his plea agreement. Indeed, the Court had the discretion to sentence petitioner to a lengthier term of imprisonment but chose not to "second-guess" the parties' stipulation that Trentacosta's role in the offense was minor. Sent. Tr. at 17. Moreover, the Court could have imposed a fine of at least $ 250,000, but instead imposed only a $ 10,000 fine. Id. at 14-15, 18.
In any event, his petition must be dismissed because his conclusory allegation of retribution is devoid of factual support. Trentacosta does not, and cannot, cite to any evidence which, even if viewed in the light most favorable to petitioner, would support his claim of retribution. Prior to denying Trentacosta's motion on the merits, the Court gave Trentacosta the opportunity at sentencing to substantiate his motion for a downward departure. Sent. Tr. at 7. However, Trentacosta, through his attorney, declined to do so. Id. at 9. Moreover, Trentacosta's co-defendants were either sentenced to the same twenty-four months' imprisonment or received much longer prison sentences or larger fines. The record reveals that the Court sentenced Trentacosta and his codefendants within its discretion based upon reasons relating to each defendant's individual offenses and circumstances.
For the reasons set forth above, the petition is denied. The Clerk of Court is directed to dismiss the petition and close the above-captioned action.
It is SO ORDERED.
DATED: New York, New York
February 6, 1996
John E. Sprizzo
United States District Judge