The opinion of the court was delivered by: Edelstein, District Judge.
Petitioner Steven Burgess ("Petitioner" or "Burgess"), pro
se, brought this present motion to vacate his conviction and
sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 motion" or "habeas
petition") on September 13, 1996. Petitioner claims (1) that in
determining his sentence, this Court improperly attributed to him
some of the narcotics found in the possession of a
co-conspirator, and (2) that defense counsel was ineffective for
failing to seek a reduction in sentence because of Petitioner's
allegedly minor role in the offense. Having reviewed Petitioner's
claims and found them to be procedurally and substantively barred
and without merit, this Court denies Petitioner's habeas
petition. This Court further declines to issue Petitioner a
certificate of appealability.
On March 30, 1999, Burgess was convicted in this Court,
following a jury trial, of (1) possession with the intent to
distribute "PCP" in violation of 21 U.S.C. § 846, and (2)
distribution and possession with intent to distribute "PCP" in
violation of 21 U.S.C. § 812, § 841(a)(1), and § 841(b)(1)(A). On
July 25, 1990, this Court sentenced Burgess to a term of one
hundred fifty-one months of imprisonment followed by a supervised
released for a term of five years and a special assessment of
one-hundred dollars on the two counts combined. Petitioner
appealed his conviction and sentence to the United States Court
of Appeals for the Second Circuit. On February 5, 1991, the Court
of Appeals affirmed his conviction and sentence. See United
States v. Harris, 930 F.2d 908 (2d Cir. 1991).
In his present § 2255 motion, Petitioner alleges that in
determining his sentence, this Court improperly attributed to him
some of the narcotics found in the possession of a co-conspirator
and that defense counsel was ineffective for failing to seek a
reduction in sentence because of Petitioner's allegedly minor
role in the offense. Because Petitioner failed to object at
sentencing and because he failed to raise these claims on direct
appeal, the claims are procedurally and substantively barred. In
addition, the claims are without merit.
Petitioner's claims are procedurally barred by his failure to
raise them at the appropriate time. Although he had two earlier
opportunities to do so, Petitioner never raised the sentencing
objection prior to including it in his present habeas petition.
His first opportunity to challenge the sentence was at
sentencing. He did not, however, raise this objection at that
time. This failure, in itself, constituted a waiver of any right
to have the issue resolved by this Court. See United States v.
Agramonte, 980 F.2d 847, 850 (2d Cir. 1992); Gordils v. United
States, 943 F. Supp. 346, 355 (S.D.N.Y. 1996). Petitioner's
second opportunity to raise the sentencing objection was on his
appeal to the Second Circuit, at which time he also had the
opportunity to raise the ineffective assistance claim.
Nevertheless, Petitioner did not raise either claim on direct
It is well settled that habeas corpus is not a substitute for
direct appeal. See United States v. Frady, 456 U.S. 152, 165,
102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v.
Pipitone, 67 F.3d 34, 38 (2d Cir., 1995); Douglas v. United
States, 13 F.3d 43, 46 (2d Cir. 1993); Marone v. United
States, 10 F.3d 65, 67 (2d Cir. 1993); Gordils, 943 F. Supp. at
355. Moreover, a "failure to raise a claim on direct appeal is
itself a default of normal appellate procedure, which a defendant
can overcome only by showing cause and prejudice." Campino v.
United States, 968 F.2d 187, 190 (2d Cir. 1992). The United
States Supreme Court has construed "cause" under this standard to
mean "something external to the petitioner . . . that cannot be
fairly attributed to him." Coleman v. Thompson, 501 U.S. 722,
753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Here, Petitioner
never brought either of the present claims on direct appeal, and
yet, he offers this Court no justification for his delinquency.
See Gordils, 943 F. Supp. at 355. Accordingly, this Court finds
that these claims are procedurally barred.
Furthermore, the substance of Petitioner's sentencing claim is
inappropriate for a habeas petition. The Supreme Court has held
that a § 2255 motion "provides a remedy only for defects that are
constitutional, jurisdictional, or in some other respect
fundamental." Gordils, 943 F. Supp. at 355 (citing United
States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60
L.Ed.2d 805 (1979)). As this Court has stated,
"[n]on-constitutional errors of law, including sentencing errors,
`do not provide a basis for collateral attack unless the
claimed error constitute[s] a fundamental miscarriage of
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 ...