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 from petitioner's bald statement that as a driver, he was a minor participant in the crime, his only assertion of prejudice appears in allegations concerning ineffective assistance of counsel.
The Court will now turn to petitioner's strongest argument--that despite two defaults, the Court should permit him to raise new issues in his 2255 petition because he received ineffective assistance of counsel, presumably at sentencing and on appeal. As the Court indicated earlier, demonstrating ineffective assistance of counsel satisfies a 2255 petitioner's burden to show cause for, and prejudice resulting from, his failure at earlier proceedings to raise newly-asserted justifications for a lesser sentence. See Murray, 477 U.S. at 488.
C. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the Supreme Court held that a defendant can establish ineffective assistance only by showing that (1) counsel's performance fell below an objective standard of reasonableness (the "deficient perform-ance" prong); and (2) a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceedings would have been different (the "prejudice" prong). Contrary to the general rule, petitioner's failure to raise any ineffective assistance arguments in his direct appeal does not bar him from raising them here, Billy-Eko v. United States, 8 F.3d 111, 114-15 (2d Cir. 1993) (stating that "in most cases there is good reason to allow a defendant to make ineffective assistance claims on collateral attack even if those claims were not brought on direct appeal[,]" but recognizing an exception for 2255 petitioners who have different trial and appellate counsel and who base their ineffective assistance claims solely on the trial record).
Petitioner provides two grounds for his assertion that his lawyer provided ineffective assistance, apparently during sentencing and on direct appeal. First, petitioner alleges that his lawyer failed to object to the Court's refusal to grant a downward departure based on petitioner's deportable alien status. Second, he alleges that his lawyer failed to pursue vigorously the argument that petitioner's minimal role in the offense justified a four-point reduction from his base level offense, rather than the two-point reduction petitioner received for is role as a minor participant.
1. Deportable Alien
Counsel's alleged failure to object to the Court's refusal to grant a downward departure based on petitioner's deportable alien status did not constitute deficient performance, for the simple reason that under Restrepo, petitioner was not entitled to a downward departure on the basis of his deportable alien status. Whether or not counsel made the argument, it would not have altered the sentence petitioner received or the outcome of his direct appeal. Therefore, petitioner has failed to establish that his counsel provided ineffective assistance by failing to raise this argument in earlier proceedings. This conclusion leads inextricably to a second--that petitioner has failed to establish cause and prejudice for his failure to raise the deportable alien issue earlier. He is thus barred from asserting it for the first time in his 2255 petition.
2. Minimal Participant
Petitioner alleges that his lawyer failed to vigorously argue for a four-point reduction based on his minimal role, rather than a two-point reduction for a minor role. Under the Strickland test, "a defendant raising a claim of ineffective assistance of counsel bears the heavy burden of establishing that his 'counsel's representation fell below an objective standard of reasonableness' and that and that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Bellamy v. Cogdell, 974 F.2d 302, 306 (2d Cir. 1992) en banc) (quoting Strickland 466 U.S. at 694). This pro se petitioner failed to present any arguments regarding either of the two prongs of this test, and the Court's review of the sentencing transcript revealed that counsel's presentation was reasonable and that the result of the sentencing would not have been different. Petitioner's lawyer adequately presented the five criteria for departure and the decision of the Court was that petitioner did not meet the fifth factor due to having been untruthful during his testimony at trial. (Sent. Tr., 10/13/94 at 9). Thus, petitioner has failed to demonstrate that he suffered from ineffective assistance of counsel.
The Court rejects petitioner's first-time claims for downward departures from the Sentencing Guidelines based on his deportable alien status and on his allegedly "minimal" participation in the conspiracy for which he was convicted. He has failed to demonstrate cause for, and prejudice resulting from, his failure to raise these issues during his sentencing or on direct appeal. Furthermore, petitioner's claims regarding ineffective assistance of counsel fail the Strickland test. Accordingly,
Petitioner's motion to correct his sentence pursuant to 28 U.S.C. § 2255 is hereby DENIED.
Dated July 13, 1996
at Binghamton, New York
Thomas J. McAvoy
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