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August 24, 1997

WALTER BORREGO, Petitioner, against UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: LOWE


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


 In 1990, a federal grand jury indicted Petitioner for engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a), several counts of drug trafficking in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1), and several counts of unlawful possession of a firearm in violation of 18 U.S.C. § 924(c). On August 3, 1990, Petitioner pled guilty, pursuant to a cooperation agreement with the Government, to the criminal enterprise count and to one count of firearm possession. On July 13, 1993, the Court sentenced Petitioner to time served, five years supervised release, and a $ 100 special assessment. As special conditions of the supervised release term, the Court ordered Petitioner to submit to "drug after care" counseling and to discontinue his drug use. Petitioner began his supervised release term on July 13, 1993.

 On March 10, 1994, the United States Probation Department filed a violation of supervised release report ("Probation Report"), indicating that Petitioner had (1) repeatedly tested positive for illegal drugs, (2) failed to attend a counseling session, and (3) falsified urine specimens. See Prob. Rep. at 1. The Probation Report recommended placing Petitioner into a strict residential program or, if such a program was unacceptable, reincarcerating Petitioner. See id. at 2. The Probation Report noted that "should Borrego be sentenced to imprisonment, supervised release cannot be reimposed." Id. at 4 (citing United States v. Koehler, 973 F.2d 132 (2d Cir. 1992)).

 On October 13, 1995, Judge Kevin Thomas Duffy presided over Petitioner's supervised release revocation hearing. At the hearing, Petitioner pled guilty to illegal drug use. 10/13/95 Tr. at 3-4. Petitioner's counsel, James Roth, urged the Court to sentence Petitioner to 20 months imprisonment and an additional term of supervised release. Id. at 4. The Government did not object to counsel's recommendation and suggested a term of three years supervised release. Id. at 5. Judge Duffy, relying on 18 U.S.C. § 3583(h) ("Section 3583(h)"), agreed to impose "the sentence suggested: Twenty months . . . [and t]he reinstitution of [three years] supervised release." Id. at 7-8. No appeal followed.

 On February 3, 1997, Petitioner, *fn1" proceeding pro se, filed the instant Section 2255 petition ("Petition"). In his motion, Petitioner asserts that: (1) the imposition of a second supervised release term ("Second Term") under Section 3583(h), which was not in effect at the time of his conviction, violates the Ex Post Facto Clause of the United States Constitution ("Supervised Release Claim"), and (2) counsel's failure to object to or appeal the imposition of the Second Term constitutes ineffective assistance of counsel. See Pet'r's Mem. at 3, 6. In response to the Petition, the Government offered no objections and conceded that the Second Term should be vacated. See Letter of Robin W. Morey, Esq. to Court, dated Apr. 21, 1997, at 2 ("the application of the § 3583(h) amendment to Petitioner appears to violate the Ex Post Facto Clause.") ("Gov't 4/21/97 Letter"). Neither party, however, addressed the cognizability of the instant petition. *fn2" Accordingly, the Court ordered the parties to do so by June 26, 1997. See Order, dated May 22, 1997, at 2. The Government now contends that Petitioner is not entitled to habeas relief because: "he has not established cause and prejudice for failing to raise the issue on appeal and [no] miscarriage of justice [will result] because Petitioner received the sentence he bargained for and requested from the Judge." Letter of Robin W. Morey, Esq. to Court, dated June 26, 1997, at 1 ("Gov't 6/26/97 Letter"). Petitioner offers no justification, other than his ineffective assistance of counsel claim, for his procedural default. Petitioner, nonetheless, maintains that he is innocent of the second term of supervised release imposed by the Court. See Pet'r's Mot. Requesting Hearing at 2.


 I. Procedural Bar

 "Failure to raise a constitutional issue on appeal is itself a procedural default, thereby implicating the cause and prejudice test." Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). Cause must be "something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 750, 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 v. Zant, 499 U.S. 467, 494, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). The prejudice prong requires that the petitioner show not just that the errors "created a possibility of prejudice, but that they worked to his actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982).

 There are two exceptions to the cause and prejudice test. First, where a claim of ineffective assistance of trial counsel is made and a defendant did not retain new counsel on direct appeal, the failure to raise the ineffectiveness claim on direct appeal is not a procedural default. See Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993). Second, even if a petitioner cannot demonstrate cause, courts may still consider newly raised claims where "failure to consider the claims will result in a fundamental miscarriage of justice." Sawyer v. Whitley, 505 U.S. 333, 339, 120 L. Ed. 2d 269, 112 S. Ct. 2514 (1992). A fundamental miscarriage of justice occurs in those "extraordinary circumstances" when a constitutional violation probably has caused the conviction of one who is "actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).

 A. Cause and Prejudice

 Petitioner did not appeal the imposition of the Second Term at the supervised release revocation hearing. Petitioner attributes this failure to his counsel's ineffectiveness. See Pet'r's Mem. of Law at 3. The Court finds Petitioner's argument unpersuasive. Petitioner cannot demonstrate "cause" or bypass its requirements based on the effectiveness of counsel, as no "constitutionally guaranteed right to counsel" exists at a supervised release revocation hearing. See United States v. Meeks, 25 F.3d 1117, 1123 (2d Cir. 1994). It follows that no right to counsel attaches to an appeal of a supervised release revocation hearing. Petitioner, therefore, cannot raise an ineffectiveness claim based on counsel's performance at a. proceeding at which he had no guaranteed right to counsel. See Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982). Because nothing in ...

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