Under this stringent standard, the Second Circuit has ruled that
sentencing errors generally are not cognizable on habeas corpus."
Id. (quoting Addonizio, 442 U.S. at 185, 99 S.Ct. 2235). This
Court, therefore, finds that Petitioner's sentencing claim is not
arguable through a habeas petition.
In any event, in determining Petitioner's sentence, this Court
properly attributed to him the narcotics found in the possession
of his co-defendant. As the Second Circuit has explained, "where
a defendant was a member of a narcotics distribution conspiracy,
all transactions entered into by him or by his co-conspirator, if
they were known to him or reasonably foreseeable by him, may be
attributed to him for the purposes of calculating his sentence
under the guidelines." United States v. Miller, 116 F.3d 641,
684 (2d Cir. 1997), cert. denied, 118 S.Ct. 2063 (1998)
(citations omitted). It is clear from Petitioner's extensive
dealings with his co-defendant that Petitioner knew or could
reasonably foresee the conduct of his co-defendant and that his
co-defendant would possess narcotics as part of the ongoing
conspiracy. See Presentence Report at ¶¶ 10-20. Therefore,
Petitioner's sentence, based in part on the narcotics found in
the possession of his co-defendant, was proper.
In addition, Petitioner's ineffective assistance claim,
alleging that at sentencing counsel should have argued that
Petitioner played a minor role in the crimes charged, is without
merit. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), an ineffective assistance of counsel
claim may succeed only if this Court determines that (1) an
attorney's behavior "fell well below an objective standard of
reasonableness" under "prevailing professional norms," id. at
688, 104 S.Ct. 2052, and (2) there is a "reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694, 104 S.Ct.
There is no evidence to suggest that Petitioner played a minor
role in the crimes charged. In fact, Petitioner "appears to have
had an over-seeing role in this case." See Presentence Report
at ¶ 19. Therefore, any argument at sentencing suggesting that
Petitioner played a minor role would have been unfounded. Thus,
Petitioner has failed to demonstrate that counsel's conduct at
the sentencing proceeding was unreasonable, or that, absent
counsel's alleged errors, the result of the proceeding would have
been different in any way.
Finally, this Court declines to issue a certificate of
appealability. A petitioner may not appeal a denied habeas
petition to the Court of Appeals unless "a circuit justice or
judge issues a certificate of appealability."
28 U.S.C. § 2253(c)(1). A court will issue a certificate "only if the
applicant has made a showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); see generally United States v.
Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the
standard for issuing a certificate of appealability).
This Court finds that Petitioner will not be able to sustain
this burden. In this Court's view, reasonable jurists could not
disagree with the resolution of Petitioner's motion to vacate,
set aside, or correct his sentence. Thus, this Court declines to
issue a certificate of appealability. Further, this Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith. See Coppedge v.
United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
For the reasons discussed above all of Petitioner's claims
pursuant to 28 U.S.C. § 2255 are Denied as procedurally and
substantively barred and without merit. In addition, this Court
Denies Petitioner a certificate of appealability.
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