The opinion of the court was delivered by: LEISURE
LEISURE, District Judge :
Petitioners pro se John Eubanks ("Eubanks"), John Bowman ("Bowman"), Benjamin Collier ("Collier"), and Kenneth Campbell ("Campbell") are federal prisoners challenging their sentences pursuant to Title 28, United States Code ("U.S.C."), Section 2255. Eubanks also brings a petition for reconsideration of a previously decided motion pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Petitioner pro se Tsoede Simpson ("Simpson") is a federal prisoner bringing a petition for reconsideration of his previously decided § 2255 motion. All five individuals were charged with drug trafficking offenses in a multi-count indictment (the "Indictment"). After a four-week jury trial, the jury convicted Eubanks and Bowman of all counts in the Indictment. Simpson, Collier, and Campbell pleaded guilty before trial. The Court considers these petitions together for the sake of judicial economy. For the reasons stated below, the § 2255 petitions, Simpson's petition for reconsideration of his § 2255 petition, and Eubanks's petition for reconsideration of his Rule 33 motion are denied.
On October 6, 1992, October 13, 1992, and October 22, 1992, respectively, the Court accepted Simpson's, Collier's, and Campbell's guilty pleas in response to charges of conspiracy to distribute and to possess with intent to distribute cocaine base, commonly known as "crack," in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Subsequently, the Court sentenced each of them to 168 months imprisonment and five years supervised release. Meanwhile, on December 11, 1992, a jury convicted Bowman of the single offense with which he was charged, distribution of and possession with intent to distribute crack and aiding and abetting the same, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841 (b)(1)(B) and 18 U.S.C. § 2.
On July 14, 1993, the Court sentenced Bowman to life imprisonment and ten years supervised release. The same jury convicted Eubanks of the two charges on which he was indicted: (1) conspiracy to distribute and to possess with intent to distribute crack, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846; and (2) distribution of and possession with intent to distribute crack and aiding and abetting the same, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1) (B) and 18 U.S.C. § 2. On February 1, 1994, the Court sentenced Eubanks to life imprisonment on the conspiracy count, with a concurrent forty-year term of imprisonment on the possession count.
In a Summary Order entered December 8, 1994, the United States Court of Appeals for the Second Circuit affirmed the convictions of Eubanks, Bowman, and Simpson. On August 25, 1994, Campbell withdrew his appeal to the Second Circuit. At Collier's request, on March 16, 1998, the Second Circuit dismissed his appeal pending determination of this motion. All five defendants currently are incarcerated. On July 15, 1997, this Court denied Eubanks's and Bowman's motions for new trials pursuant to Fed. R. Crim. P. 33 and Simpson's motion to set aside his sentence and for a Fatico hearing pursuant to 28 U.S.C. § 2255.
In the instant Petitions, Campbell, Collier, Eubanks, and Bowman seek to set aside their sentences for the various reasons described below.
Eubanks also applies for reconsideration of his Rule 33 motion, and Simpson seeks reconsideration of his previous habeas corpus Petition.
The evidence presented at trial established that the defendants were members of a narcotics trafficking organization (the "Organization") that sold crack, principally at two locations: one on 127th Street between Madison and Park Avenues (the "Manhattan spot"), and one on Clay Avenue between 173d and 174th Streets (the "Bronx spot"). Three cooperating witnesses -- former members of the Organization -- as well as six others testified.
The accomplice witnesses testified to Eubanks's, Simpson's and Bowman's roles in the Organization. Eubanks oversaw the Bronx spot. Bowman was a supervisor, known as a "lieutenant", at the same location, and later at the Manhattan spot. Simpson was a seller, known as a "pitcher", and later a lieutenant, at the Bronx spot, and also transported money and crack between the two locations. The testimony of the accomplice witnesses substantially corroborated one another's, and the testimony of Delano Reid ("Reid"), an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms, (the "ATF"), and that of Steven Howard ("Howard"), a confidential informant ("CI"), also corroborated the accomplice witnesses' testimony. Both Reid and Howard engaged in numerous tape-recorded drug transactions with members of the Organization. The Government also presented testimony of ATF agents and New York City Housing Police officers who surveilled and videotaped both spots. In his plea agreement, Collier stipulated that he also was a manager of the criminal activity charged in the Indictment. Campbell stipulated in his plea agreement that he was a manager of the criminal activity charged in the Indictment and possessed a firearm during commission of the criminal activity charged. Both Collier and Campbell acknowledged that they conspired to distribute and to possess with intent to distribute 50 grams and more of crack.
The physical evidence included thousands of vials of crack, cocaine powder, extensive notebooks and records of narcotics processing and sales, bundles of cash, photographs, numerous firearms and ammunition, and various paraphernalia for processing and packaging crack. The authorities seized this evidence from the homes of certain Organization members and the Organization's mill, a basement location where drugs and firearms were stored. The Organization also maintained a storage area at 1690 Clay Avenue (the "Bronx stash"), where the group kept firearms, ammunition, and proceeds of narcotics sales.
The physical evidence, like the testimony of the accomplices and law enforcement witnesses, linked defendants to the Organization's narcotics operations. For example, the notebooks in which the Organization recorded its drug transactions contained the names "Marcell"
next to entries that reflected sales of "packs" of crack vials. The Government also presented audio recordings of narcotics transactions in which Organization members inculpate "J.B." and video recordings taped in the vicinity of the Bronx stash that show accomplice witness Charmaine Francis ("Francis") delivering cash to Eubanks and a firearm to Eubanks and Simpson.
I. General Standards for Judgment of § 2255 Petitions
Collateral relief under § 2255 is available "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)). A petitioner may not use a § 2255 motion to "'relitiqate questions which were raised and considered on direct appeal.'" Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)). Moreover, a petitioner who has failed to raise an issue on direct appeal may not do so in a § 2255 petition. See Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) ("failure to raise a claim on direct appeal is itself a default").
Significantly, a petitioner may overcome a procedural default by showing "cause and prejudice"; he must show cause for not having raised a particular claim on appeal and must demonstrate that the failure to raise that claim actually prejudiced his case.
See United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982); see also Campino, 968 F.2d at 189. A petitioner who cannot demonstrate cause and prejudice may nonetheless be heard if he can show that failure to hear his claim would lead to a "fundamental miscarriage of justice." See Murray v. Carrier, 477 U.S. 478, 495, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).
II. Sentencing Claims Not Cognizable Under § 2255
With regard to alleged errors under the United States Sentencing Guidelines (the "Sentencing Guidelines"), the Second Circuit has held expressly that where the defendant failed to appeal these errors on direct appeal, they are not cognizable under § 2255 unless there was a "complete miscarriage of justice." See Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) ("Insofar as claims regarding a sentencing court's error on failing to properly apply the Sentencing Guidelines are neither constitutional nor jurisdictional, we join several other circuits in holding that, absent a complete miscarriage of justice, such claims will not be considered on a § 2255 motion where the defendant failed to raise them on direct appeal."); see also Knight v. United States, 37 F.3d 769, 772-73 (1st Cir. 1994) (claims concerning imposition of fine and computation of criminal history under the Sentencing Guidelines are not ...