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December 20, 1996

JESUS TINEO, Petitioner, against UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: LOWE


 Before the Court is the motion of petitioner Jesus Tineo ("Petitioner" or "Tineo"), pursuant to 28 U.S.C. § 2255 ("Section 2255"), to vacate, set aside or correct his sentence. For the reasons stated below, the Court denies Petitioner's motion.


 On June 4, 1990, Petitioner pleaded guilty to charges of conspiracy to knowingly possess cocaine base ("crack") with the intent to distribute it in violation of 21 U.S.C. §§ 812, 841 and 846 ("Count I") and possession with intent to distribute crack in violation of 21 U.S.C. §§ 812 and 841 ("Count II"). See Plea Tr. at 3.

 At the plea allocution, *fn1" the Court asked Petitioner to describe in his own words "what it is [he] did which caused [him] to believe [he], in fact, [was] guilty of the counts of the Indictment." Id. at 7. The Court directed Petitioner to look at the conspiracy charge in Count I of the Indictment and to describe what he did that caused him to plead guilty to Count I. Id. at 8. Petitioner then acknowledged that: (1) he and Ricardo Alers ("Alers") (a co-conspirator named in the Indictment) were "selling drugs together as a business," (2) Alers asked him to "sell" 211 grams of crack to his friends (a policeman and an undercover agent), (3) he agreed to "do the deal" because "we were going to earn $ 200" each, (4) "we went and sold the drugs," and (5) "the drugs belonged to us [Petitioner and Alers]." See id. at 8-10.

 Describing his role in the drug transaction, Petitioner stated that he: (1) went with Alers to meet the policeman, (2) told the undercover agent to show him the money, (3) talked to the undercover agent "about the transaction, how much the drugs cost and how many ounces the undercover wanted," (4) told Alers that he "didn't like the deal because [he] thought [the undercover agent] could be a policeman," and (5) gave the "crack" cocaine to Alers to consummate the deal while he stayed at home. Id. at 8-9. Petitioner admitted that the conspiracy occurred on December 14, 1988, the date of the conspiracy charged in Count I. Id. at 9.

 Turning to Count II, the Court asked Petitioner if he had the 211 grams of "crack" in his possession on December 14, 1988. Id. Petitioner admitted that he "gave" the "crack" to Alers and that the "drugs belonged to us [Alers and Petitioner]." Id. at 9-10. Petitioner acknowledged that he knew it was against the law to possess and sell "crack." Id. at 10. The Court also explained the applicable statutory maximum and minimum sentences for Counts I and II, and Petitioner acknowledged that he understood the possible sentences he faced. Id. at 9.

 The Court then inquired about the voluntariness of Petitioner's plea. Id. at 10. In response, Petitioner made clear that his plea was not induced by promises and stated that "nobody is forcing me." Id. When asked by the Court if he was satisfied with trial counsel's representation, Petitioner replied, "Of course, because he's been sincere with me." Id. at 15. Petitioner acknowledged that trial counsel had answered any questions that he may have had. Id. Before adjourning for the sentencing hearing, the Court asked Petitioner if anything had happened at the plea allocution which he did not understand or which needed further explanation. Id. Petitioner responded: "No. Everything is all right." Id.

 Prior to sentencing, the United States Probation Department filed a Presentence Investigation Report ("PSI") which recommended a base offense level under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") of 34 based upon the quantity of crack Petitioner possessed and conspired to distribute. See PSI P 21. In addition, the PSI recommended a two-level enhancement, pursuant to U.S.S.G. § 3B1.1 ("Section 3B1.1"), for Petitioner's role in the offense and a two-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1) ("Section 2D1.1(b)(1)"), based upon the presence of firearms during the commission of the crime. See id. PP 22, 23. The PSI also suggested a two-level reduction, pursuant to U.S.S.G. § 3E1.1(a) ("Section 3E1.1(a)"), for Petitioner's acceptance of responsibility. See id. P 27. As a result, the total offense level recommended was 36, which carries a sentencing range of 188 to 235 months of imprisonment. Id. at 10.

 On September 20, 1990, the Court conducted a sentencing hearing on two disputed issues: (1) the two-level enhancement for Petitioner's role in the offense, see U.S.S.G. § 3B1.1(c), and (2) the two-level enhancement for the presence of firearms, see U.S.S.G. § 2D1.1(b)(1). Petitioner's counsel objected to the probation officer's recommendation to enhance Petitioner's sentence for his role in the offense and the presence of firearms. See Sentencing Tr. at 2-3. Special Agent Walter R. Serniak ("Agent Serniak") *fn2" testified on behalf of the Government. The Court found that the Government had established Petitioner's role as "boss" of the conspiracy by a preponderance of the evidence. See id. at 92. The Court based its finding not only on Agent Serniak's testimony, but also on Petitioner's statements during the plea allocution. See id. at 90-92. Accordingly, the Court enhanced Petitioner's sentence by two levels for his leadership role in the conspiracy. Id. at 92. The Court, however, did not increase Petitioner's sentence for the presence of firearms. Id. at 93.

 At the sentencing hearing, Petitioner moved to withdraw his plea on the grounds that it had been entered involuntarily. Id. at 36. The Court rejected Petitioner's request, finding that Petitioner's retraction of his plea lacked credibility. Id. at 38, 97. In light of Petitioner's attempt to withdraw his plea, the Court denied any downward adjustment for acceptance of responsibility under Section 3E1.1(a). Id. at 97-98. The Court sentenced Petitioner to 211 months imprisonment and fined him $ 100. Id. at 100-02.

 On appeal, Petitioner was represented by new counsel, Mark Freyberg. Petitioner appealed his sentence on the ground that he was improperly denied a two-level reduction for his acceptance of responsibility under Section 3E1.1(a). The Second Circuit rejected Petitioner's argument. Concluding that Petitioner's sentencing testimony "contradicted his earlier testimony at the plea allocution in several material ways," the Second Circuit affirmed this Court's finding that Petitioner's attempts to demonstrate his acceptance of personal responsibility for his criminal conduct were "not credible." See United States v. Tineo, No. 89 Cr. 1017, slip op. at 2 (2d Cir. Oct. 16, 1992).

 On May 27, 1993, Petitioner, proceeding pro se, moved the Court, pursuant to Section 2255, to vacate his sentence on the grounds that he: (1) received ineffective assistance of counsel at trial and (2) entered his plea involuntarily due to the promises of his attorney and the prosecutor that his sentence would not exceed ten years. See 1993 Pet. at 4. *fn3" By order dated February 22, 1994 ("February 1994 Order"), the Court denied Petitioner's motion. See February 1994 Order at 2. The Court found that Petitioner's failure to show "cause" for not raising his claims on direct appeal barred review of his Section 2255 petition. See id. at 1. Additionally, the Court rejected Petitioner's claims on the merits, finding that the record clearly established that Petitioner's counsel had informed Petitioner about the potential minimum and maximum sentences and that he had fully understood the ramifications of pleading guilty to his sentence. See February 1994 Order at 2.

 On November 19, 1996, the Court notified Petitioner that the Government, in response to the instant petition, had asserted an abuse of the writ and instructed him to disprove the alleged abuse. See November 1996 Order at 2. The Court ordered Petitioner to submit papers addressing how the new claims in his second Section 2255 petition satisfied the "cause" and "prejudice" test articulated in McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). Id. at 2.

 Because Petitioner asserts new as well as previously raised claims, the Court will consider them separately, as different legal standards apply to each.


 I. Claim Previously Appealed and Denied

 A. Downward Departure for Acceptance of Responsibility

 Section 2255 *fn5" may not be employed to "relitigate questions which were raised and considered on direct appeal." Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) (citation omitted); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993) ("[Any] claim raised . . . [in a Section 2255 petition] that was also raised . . . on direct appeal . . . is precluded from consideration by this Court."); Giacalone v. United States, 739 F.2d 40, 44 (2d Cir. 1984) (finding summary order rejecting claim on direct appeal sufficient to bar consideration of same claim under Section 2255 petition).

 Petitioner challenges his sentence on the ground that the Court erroneously refused to reduce his offense level under Section 3E1.1 for his acceptance of responsibility for his criminal conduct. See Pet'r's Mem. at 9. Because this claim was raised on direct appeal and deemed meritless, see United States v. Tineo, No. 89 Cr. 1017, slip. op. at 2-3 (2d Cir. Oct. 16, 1992), Petitioner cannot relitigate this claim in his present Section 2255 petition. Accordingly, the Court refuses to consider this thoroughly litigated claim.

 II. Newly Asserted Claims

 A district court may dismiss a successive Section 2255 petition "if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." Rules Governing § 2255 Proc. U.S. Dist. Cts. 9(b). To avoid dismissal for an abuse of writ, a petitioner must show "cause" for his failure to bring the claim in a prior Section 2255 petition and "prejudice" from the asserted ground. McCleskey v. Zant, 499 U.S. 467, 494-95, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991); United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995). If a petitioner cannot show "cause," the failure to raise the claim in an earlier petition may nonetheless be excused if he can show that a "fundamental miscarriage of justice" would result. McCleskey, 499 U.S. at 494-95.

 The Supreme Court defines "cause" as "something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). "Objective factors that constitute cause include interference by officials that makes compliance with the State's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel." McCleskey, 499 U.S. at 494 (citation omitted); see United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1993) (holding that newly discovered evidence comprises "cause"). Ignorance of the law or inadvertence does not constitute "cause." Murray v. Carrier, 477 U.S. 478, 492, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). The "cause" requirement is "based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition." McCleskey, 499 U.S. at 496.

 To establish "prejudice," a petitioner must demonstrate "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Femia v. United States, 47 F.3d 519, 524 (2d Cir. 1995) (citation omitted). A fundamental miscarriage of justice occurs in those "extraordinary circumstances when a constitutional violation probably has caused the conviction of one innocent of the crime." McCleskey, 499 U.S. at 494. To meet this narrow exception, the petitioner must establish constitutional error and present a colorable claim of factual innocence. Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 867, 130 L. Ed. 2d 808 (1995). *fn6"

 Further, in Section 2255 proceedings, petitioners must show both a violation of their constitutional rights and "substantial prejudice" or a "fundamental miscarriage of justice." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (citing Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993)); United States v. Berger, 826 F. Supp. 100, 102 (S.D.N.Y. 1993) (holding that to assert claim under Section 2255, error must be fundamental and result in complete miscarriage of justice). As held in Ciak, "because requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules [in order to] make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." 59 F.3d at 301 (citing United States v. Frady, 456 U.S. 152, 165, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)).

 A. Rule 11 Violations

 Petitioner maintains that his guilty plea must be vacated because the Court did not: (1) recite the "essential elements" of the conspiracy charge in Count I at the plea allocution in violation of Rule 11(c)(1) and (2) ensure that a factual basis existed ...

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