the concurrent state term of imprisonment. The substance of Mercado's
theory was that, considering the 54 months he had served in state
custody, he should not have been subject to any federal term of
imprisonment because he had already served more than 48 months, the
maximum statutory prison term for a violation of 21 U.S.C. § 843(b).
This contention ignores the fact that Mercado pled guilty to and was
sentenced in connection with not one, but two distinct violations of the
statute, each charge carrying a 48-month maximum prison term. On this
basis, the Court denied this First Motion in an Order dated January 2,
On April 9, 2002, Mercado filed the motion now before the Court
pursuant to § 2255 to set aside his sentence, this time requesting a
re-sentencing based on a claim of ineffective assistance of counsel.
Mercado asserts that the representation his attorney provided was
constitutionally defective because counsel did not argue that Mercado's
42-month federal custody sentence should be reduced further to give
Mercado credit for "good time" earned while in state custody that he
supposedly would have received if he had been sentenced to 96 months'
At the outset, the Court notes that the instant motion is simply a
restatement of Mercado's First Motion, though dressed in a slightly
different garment. At bottom, Mercado repeats the same claims he asserted
in the First Motion, namely that his state custody should have been a
factor in reducing or eliminating his federal imprisonment. The Court's
view of this matter has nor changed, and consequently the Court again
denies Mercado's motion. However, the Court will briefly address the
issues involved with the new approach Mercado employs to reassert these
First, Mercado entered into a plea agreement under which he explicitly
agreed not to appeal or litigate under § 2255 if the sentence he
received fell within or below the stipulated guideline range of 96 months
imprisonment. The record of Mercado's sentencing shows that Mercado was
asked twice to confirm that he understood this agreement and the fact
that the agreement prevented him from invoking § 2255, and Mercado
twice answered affirmatively. See Transcript of Plea Hearing, dated
February 9, 2001, at 20).; Perhaps in part for this reason. Mercado did
not raise this claim of ineffective assistance of counsel on direct
appeal, and therefore is barred from invoking § 2255 as a substitute
for such direct appeal. See Mendez v. United States, 99 CIV. 3496 (JFK),
2002 WL 1402321, at *3 (S.D.N.Y. June 28, 2002) (" § 2255 may not be
used as a. substitute for direct appeal.").
Moreover, Mercado's claims are not cognizable in a § 2255 motion.
To prevail on. such a motion, a prisoner must demonstrate that either
"the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
Mercado's motion satisfies none of these requirements, and thus fails to
meet the § 2255 standards.
For the foregoing reasons, it is hereby
ORDERED that Mercado's motion for a re-sentencing based on ineffective
assistance of counsel pursuant to § 2255 is DENIED.
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