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UNITED STATES v. GALLO-LOPEZ

July 13, 1996

UNITED STATES OF AMERICA,
v.
MARCO TULIO GALLO-LOPEZ, Defendant.



The opinion of the court was delivered by: MCAVOY

 Petitioner filed a petition to correct his sentence pursuant to 28 U.S.C. § 2255, asserting the following three grounds for relief: (1) as a deportable alien, he is entitled to a downward departure from the Sentencing Guidelines; (2) as a minimal participant, he is entitled to an additional two-point reduction in his base offense level; and (3) he received ineffective assistance of counsel. The Court denies the Petition.

 I. Background

 On July 3, 1994, a jury convicted petitioner on one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); and one count of possession with intent to distribute approximately one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1). On October 13, 1994, this Court sentenced petitioner to 63 months' imprison-ment and, upon his release from prison, four years of supervised release.

 Because the third crime for which petitioner was convicted involved one kilogram of cocaine, his base level offense was 26. He received a two-level reduction for playing a minor role in the offense and, on the ground that he gave perjured testimony, a two-level enhancement for obstruction of justice.

 On direct appeal, petitioner challenged this Court's imposition of the two-level enhancement for obstruction of justice. The Court of Appeals remanded the case for further findings with regard to petitioner's alleged perjury and, if appropriate, re-sentencing. United States v. Gallo-Lopez, 62 F.3d 41 (2d Cir. 1995). On remand, this Court rescinded the two-level enhancement for obstruction of justice and reduced the incarceration portion of petitioner's sentence from 63 to 60 months.

 II. Discussion

 "A collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468, (1962)). In this collateral attack upon his conviction, petitioner bears the burden of establishing by a preponderance of the evidence that he is entitled to relief. Parsons v. United States, 919 F. Supp. 86, 88-89 (N.D.N.Y. 1996). If, upon the Court's review of the record, moving papers, and any attached exhibits and affidavits, "it plainly appears . . . that the movant is not entitled to relief", the Court may summarily dismiss petitioner's motion. Id. (citing Rule 4(b) of the Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code). Finally, "It is well-settled that where a petitioner does not bring 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." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)). One way for a 2255 petitioner to satisfy both the cause and prejudice requirements is to prove that he received ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986); See Erwin Chemerinsky, Federal Jurisdiction § 15.5.5, at 830 (2d ed. 1994).

 A. Deportable Alien Status

 Petitioner claims that he is entitled to a downward departure from the Sentencing Guidelines because his status as a deportable alien will prevent him from securing placement in a half-way house or other minimum security facility and will increase his actual term of imprisonment by rendering him ineligible for supervised release. Because petitioner forwards this argument for the first time in a 2255 motion, he must demonstrate both cause for, and prejudice resulting from, his failure to raise the issue earlier, at the time of sentencing or on direct appeal. United States v. Campino, 968 F.2d 187 (2d Cir. 1992). Unless petitioner succeeds on his ineffective assistance claim, he cannot establish the requisite cause and prejudice.

 Apart from his ineffective assistance claims, petitioner has failed to allege, let alone attempt to substantiate, that he had cause for failing to seek direct review of the Court's refusal to permit a downward departure based on mitigating circumstances. Even if petitioner were able to show cause, he would be unable to demonstrate prejudice--that his failure to raise this issue earlier affected the outcome of his sentencing and appeal. See Chemerinsky, supra § 15.5 at 830. In United States v. Restrepo, 999 F.2d 640 (2d Cir.), cert. denied, 510 U.S. 954, 114 S. Ct. 405, 126 L. Ed. 2d 352 (1993), the Second Circuit held that a convicted defendant is not entitled to a downward departure based on the "mitigating circumstance" that he is a deportable alien if the only apparent consequences of his alienage are (1) the unavailability of preferred conditions of confinement, (2) the possibility of an additional period of detention following the completion of sentence, and (3) banishment from the United States and separation from his family. Because petitioner has not alleged any consequences of his alienage different from those the Second Circuit addressed in Restrepo, he was not entitled to a downward departure from the Sentencing Guidelines on the basis of his deportable alien status. Therefore, his failure to raise this issue earlier has not caused him prejudice.

 B. Minimal or Minor Participant

 Petitioner received a two-point downward departure under § 3B1.2(b) of the Sentencing Guidelines because of his status as a "minor" participant in the crime. He now claims that because he was only a "minimal" participant, he should have received a four-point downward departure pursuant to § 3B1.2(a) of the Sentencing Guidelines. Because petitioner failed to present this claim at sentencing or on direct appeal, the burden again falls upon him to show cause and prejudice, either independently or by demonstrating that he received ineffective assistance of counsel. Aside from ineffective assistance claims, the Petition is devoid of allegations that might explain Petitioner's failure to raise this issue at sentencing or on direct appeal. Similarly, aside ...


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