that as time passed Petitioner paid him substantially more money for his assistance in running a drug operation out of an apartment. Id. at 57. Fermin related to Agent Serniak in his debriefing that he worked for Petitioner, steering "[crack] customers" to him. Id. at 61.
The uncontradicted testimony of the three hearsay declarants (Agent Gray, Alers and Fermin) meshed and singled out Petitioner as the "boss" of the drug conspiracy. The Court finds that the internal consistency of the three hearsay accounts lent substantial indicia of reliability to the testimony. See, e.g., United States v. Prescott, 920 F.2d 139, 145 (2d Cir. 1990) (finding hearsay testimony sufficiently reliable because numerous and independent accounts had "high degree of inter-correlation").
Moreover, Petitioner's own admissions in the plea allocution corroborated Agent Serniak's hearsay testimony, further bolstering its reliability. See Plea Tr. 8-9 (admitting that he told undercover agent to show him money, that he and Alers then went to apartment to get crack, and that he gave crack to Alers to consummate deal). The Court finds that there was sufficient corroboration to establish the reliability of Agent Serniak's hearsay testimony.
Accordingly, Petitioner's challenge to his sentence enhancement is meritless.
c. Departure based on alien status claim
Finally, Petitioner argues that, in light of his status as an alien, the Court erred by failing to depart downward from the range prescribed by the Guidelines. See Pet'r's Mem. at 34. Petitioner asserts that he is entitled to a downward departure pursuant to Section 5K2.0 because, as an alien,
he is not eligible for certain programs offered by the Bureau of Prisons (e.g., incarceration in a half-way house). See Pet'r's Mem. at 34. Petitioner's claim is meritless.
The Second Circuit has recently 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 consequences of his alienage are harsher conditions of confinement, such as ineligibility for Bureau of Prisons programs. See United States v. Restrepo, 999 F.2d 640, 644-46 (2d Cir.) (refusing to recognize Bureau of Prisons' denial of reassignment to halfway house based on defendant's deportable alien status as appropriate basis for downward departure); see also United States v. Gallo-Lopez, 931 F. Supp. 146, 1996 WL 406113, at *2-*3 (S.D.N.Y. 1996) (holding petitioner not entitled to a downward departure on the basis of his status as deportable alien).
Because Petitioner asserts a similar claim to the one raised by defendant in Restrepo, he is not entitled to a downward departure on the basis of his deportable alien status. Accordingly, the Court rejects Petitioner's claim for relief on this ground.
D. All Other Section 2255 Claims
Petitioner challenges the Indictment as "materially defective on its face as to deprive the court of lawful jurisdiction." Pet'r's Amended Complaint at 1. Specifically, Petitioner alleges that Count I of the Indictment is defective for its failure to name his co-conspirators. Id. at 2 (arguing that "the indictment claims that the co-conspirators are unknown to the grand jury -- clearly something is amiss, and the resulting consequences has produced the greatest injustice that I have seen in my thirty years involved in the profession."). Petitioner failed to raise these issues either on direct appeal or in his first petition. No cause having been shown, the Court declines to address whether Petitioner suffered actual prejudice resulting therefrom.
The Court has reviewed Petitioner's remaining contentions and finds them wholly without merit.
For all the foregoing reasons, Petitioner's motion to vacate, set aside or correct his sentence, pursuant to Section 2255, is denied. The Court also certifies, pursuant to 25 U.S.C. § 1915(a), that any appeal from this order would not be taken in good faith. Because the petition presents no question of substance for appellate review, no certificate of appealability will issue. 28 U.S.C. § 2253 (as amended); Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam).
It is So Ordered.
Dated: December 20, 1996
New York, New York
Mary Johnson Lowe
United States District Judge