the text of Count One did not deprive this court of jurisdiction as
Herrera suggests. This is because 21 U.S.C. § 841(a)(1), 846 prohibit
conspiracies to traffic in any quantity of cocaine. Assuming arguendo
that the failure to plead a drug quantity in Count One precluded this
court from imposing sentence on Herrera pursuant to §
841(b)(1)(A)(ii)(II), the court would retain jurisdiction to proceed
pursuant to § 841(b)(1)(C), which provides for a sentence of from
zero-to-twenty years' incarceration for persons who traffic in
unspecified quantities of cocaine. Since Herrera's sentence of 121 months
was based on the same 121-151 month guideline range that would apply
regardless of whether his case fell within § 841(b)(1)(A)(ii)(II) or
§ 841(b)(1)(C), see generally United States v. Garcia, 240 F.3d 180,
184 (2d Cir. 2001) (holding that Apprendi does not require a guideline
factor "unrelated to a sentence above a statutory maximum or to a
mandatory statutory minimum" to be submitted to a jury or proved beyond a
reasonable doubt), and since the sentence is well below the twenty-year
maximum provided in § 841(b)(1)(C), petitioner cannot sustain his
claim that this court entered judgment of conviction in the absence of
2. Failure to Prove Quantity Beyond a Reasonable Doubt
Herrera errs in asserting that drug quantity was not proved beyond a
reasonable doubt in his case. Although the jury made no express finding
that the charged conspiracy dealt in five kilograms or more of cocaine,
Herrera stipulated at trial that the amount of cocaine seized after its
delivery into the United States by fellow conspirators was 85.76
kilograms. Since Apprendi, the Second Circuit has twice ruled that a
defendant's trial stipulation as to drug quantity can be enough to
trigger the higher penalties provided in § 841(b)(1)(A) & (B).
United States v. White, 240 F.3d 127, 134 (2d Cir. 2001) (holding that
defendant who stipulates to crack in excess of twenty grams satisfies the
requirement of the five-to-forty year sentencing range of §
841(b)(1)(B)); United States v. Champion, 234 F.3d 106, 110 & n. 3
(2d Cir. 2000) (per curiam) (defendant's stipulation that crime involved
more than 2.6 kilograms of heroin renders a jury finding on the issue
unnecessary and brings the case within the ten-years-to-life range
provided in § 841(b)(1)(A)). In light of Herrera's stipulation, this
court correctly observed at sentence that defendant was subject to the
ten-year mandatory minimum provided in § 841(b)(1)(A)(ii)(II). For
all these reasons, the court rejects Herrera's Apprendi challenge to his
conviction and sentence both because the claims are procedurally barred
and, in any event, without merit.
II. Ineffective Assistance of Counsel
At trial, Herrera was represented by appointed counsel, Barry Gene
Rhodes, Esq., who represented him with vigor and determination. After the
jury returned a guilty verdict, Herrera dismissed Mr. Rhodes and found
the means to retain new counsel for sentencing, B. Alan Seidler, Esq. He
now submits that both these attorneys were constitutionally ineffective.
The claims merit little discussion.
A. Mr. Rhodes
Herrera faults Mr. Rhodes for failing to call co-conspirator Hector
Toro-Davilla, as a defense witness. This precise Sixth Amendment claim
was raised by Mr. Seidler on direct appeal and summarily rejected by the
Second Circuit. See Herrera's Brief on Appeal at 19; United States v.
Herrera, 2000 WL 839965, *2, 216 F.3d 1073. A district court presented
with a § 2255 motion may not reconsider claims already reviewed on
direct appeal. Douglas
v. United States, 13 F.3d at 46; Barton v. United States, 791 F.2d 265,
267 (2d Cir. 1986). Accordingly, this part of Herrera's ineffectiveness
claim is barred from collateral review.
B. Mr. Seidler
Herrera faults Mr. Seidler for failing to move for a reduction from the
mandatory minimum sentence under what is commonly referred to as the
"safety valve" provision of 18 U.S.C. § 3553(f).
To sustain a claim of ineffective assistance, a prisoner must
demonstrate both (1) that counsel's performance was so unreasonable under
prevailing professional norms that "counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth Amendment," Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
and (2) that counsel's ineffectiveness prejudiced the defendant such that
"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. 2052. Accord United States v. Trzaska, 111 F.3d 1019, 1029
(2d Cir. 1997). Herrera can satisfy neither of these requirements.
He asserts that counsel acted unreasonably when he misreported to
Herrera that he was ineligible for the "safety valve" because he had
elected to stand trial. See Hernandez Memo in Support of § 2255
Motion at 9. In opposition, the United States submits a contrary
declaration from Mr. Seidler stating that he discussed the possibility of
a "safety valve" proffer with Herrera and advised his client that to
qualify for any benefits he would have to disclose truthfully all
information he had regarding the crime of conviction. Exh. E to Gov't
Memo in Opp. Herrera maintained that he was ignorant of any drug
trafficking on the day of his arrest and advised Seidler that he
preferred to challenge his conviction on appeal. Id. Thus, when at
sentencing, the court asked whether the "safety valve" had been satisfied
in the case, Mr. Seidler replied, "No, no, Mr. Herrera is going to appeal
his sentence." Sentencing Trans. at 6.
While an evidentiary hearing is sometimes required to resolve factual
disputes between parties as to the reasonableness of an attorney's
actions, the court concludes that no hearing is necessary in this case.
First, Herrera's version of events appears at odds with other undisputed
facts. Specifically, Herrera told this court at sentencing that he was
satisfied with Mr. Seidler's assistance, see id. at 2, which is hardly
consistent with his claim that counsel was refusing to seek a "safety
valve" session with the government. Indeed, even after Mr. Seidler told
the court that the "safety valve" was not being pursued because his
client wished to appeal, Herrera voiced no contrary position. When asked
by the court if he wished to say anything, Herrera stated simply: "What I
want to say is may God enlighten you so you'll be fair. I love this
country. I have a lot to be grateful for. I have nothing else to say."
Id. at 7. Further undercutting Herrera's claim that counsel unreasonably
dismissed his request to pursue a "safety valve" motion is the fact that
Mr. Seidler continued to represent Herrera on direct appeal. Certainly,
Herrera knew that he could change counsel if he was dissatisfied. He
had, after all, substituted Mr. Seidler for Mr. Rhodes. Moreover, he knew
he could raise appellate challenges to his counsel's performance as
demonstrated by his claims against Mr. Rhodes on appeal.
Even if Herrera could persuade the court that his version of Mr.
Seidler's conduct is accurate and that counsel's advice was objectively
Sixth Amendment claim would still fail because he cannot show ensuing
prejudice. Nowhere in Herrera's papers does he demonstrate that, but for
Mr. Seidler's omission, petitioner would have qualified for "safety
valve" consideration. 18 U.S.C. § 3553(f)(5) specifically requires
that a defendant seeking to avoid a mandatory minimum sentence truthfully
disclose to the government "all information and evidence the defendant
has concerning the offense or offenses that were part of the same course
of conduct or of a common scheme or plan." Herrera has never indicated a
willingness to comply with this provision. Even now, he does not admit
that he was a guilty participant in the charged conspiracy, much less
does he disclose his full relationship with the various participants to
whom he is linked by evidence of personal and telephonic contact.
Indeed, implicit in Herrera's argument that trial counsel was ineffective
in failing to call Hector Toro Davilla as a witness is the contrary claim
that petitioner was an unwitting and, therefore, innocent participant in
the crime of which he stands convicted.
Having thus failed to demonstrate that he could have qualified for
"safety valve" consideration at sentencing, Herrera's Sixth Amendment
challenge to Mr. Seidler's representation must be denied as without
For the reasons stated, the court finds that Herrera's Apprendi-based
challenges to his conviction and sentence must be denied both as
procedurally barred and without merit. The court further rejects Herrera's
Sixth Amendment challenge to the representation afforded by his attorneys
because, in the case of trial counsel, the claim is procedurally barred,
and, in the case of sentencing counsel, the claim is without merit. The
court grants a certificate of appealability on the Apprendi claims but
denies a certificate on the Sixth Amendment claims. The Clerk of the
Court is to mark this case closed.
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