The opinion of the court was delivered by: John G. Koeltl, United States District Judge
Petitioner Frank Hernandez moves pursuant to 28 U.S.C. § 2255 to vacate or set aside the sentence imposed following his conviction, pursuant to his guilty plea, for intentionally and knowingly attempting to distribute and to possess with intent to distribute a controlled substance, specifically cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(B). The petitioner raises four grounds of relief based on alleged sentencing errors, arguing (1) that the Court should have granted a downward departure on the basis of the defendant's willingness to consent to deportation; (2) that the Court should have granted a downward departure for the minor role the defendant played in the offense; (3) that the Court miscalculated the defendant's criminal history category; and (4) that the Court should have granted the defendant a three-level downward adjustment pursuant to U.S.S.G. § 2X1.1(4). The petitioner also argues that he received ineffective assistance from his trial counsel because his trial counsel failed to investigate these issues and present them to the sentencing court. Because none of these contentions has any merit, and for the reasons set forth below, the petitioner's motion is denied.
On November 19, 1999 Frank Hernandez pleaded guilty pursuant to a Plea Agreement to a Superceding Information charging him with one count of attempting to distribute and to possess with intent to distribute cocaine, a Class B felony, in violation of 21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(B).
Hernandez's guilty plea arose out of events that took place on February 8, 1999. (Presentence Report ("PSR") ¶ 7.) On that date, Hernandez approached the government's confidential informant on 86th Street and 2nd Avenue and arranged to purchase four kilograms of cocaine. (PSR ¶ 8.) Hernandez agreed to pay $28,500 per kilogram for two kilograms of cocaine when the sale was consummated, and to pay for the remainder later. (PSR ¶ 8.) Later that day, Hernandez approached the confidential informant carrying a blue "GAP" bag. (PSR ¶ 10.) The two men then walked over to the informant's car, where Hernandez indicated he had the money and asked to see the cocaine. (PSR ¶ 11.) The informant opened the trunk, and soon thereafter signaled for Hernandez to be arrested. (PSR ¶¶ 11-12.) Hernandez began running away, dropped the "GAP" bag which contained $57,020, and was soon arrested. (PSR ¶ 13.)
Hernandez pleaded guilty and was sentenced on April 11, 2000 to a term of imprisonment of 87 months imprisonment, four years of supervised release, and ordered to pay a mandatory $100 special assessment. Represented by new counsel, Hernandez appealed his conviction. Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising the Court of Appeals that there were no non-frivolous grounds for appeal, but discussing two issues: first, whether the guilty plea was knowing, voluntary, and entered in accordance with Fed.R. Cr. P. 11; and, second, whether the petitioner was deprived of effective assistance of counsel at the plea. The petitioner's conviction was summarily affirmed by the Court of Appeals for the Second Circuit. United States v. Frank Hernandez, 00-1300 (2d Cir. Mar. 12, 2001) (unpublished decision). Hernandez subsequently filed this § 2255 motion for post-conviction relief, raising four claims relating to sentencing errors and one claim of ineffective assistance of trial counsel.
The Government first argues that the petitioner is barred from raising any of his claims because they were not raised on direct appeal. "It is well-settled that where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982) and superceded by statute on other grounds as noted in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir. 1997)); accord Dejesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993) (superceded by statute on other grounds); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992); Joseph v. United States, No. 99 Civ. 3495, 2000 WL 460439, at *1 (S.D.N.Y. April 18, 2000).
The petitioner did not raise any of the sentencing arguments now raised in his § 2255 petition in his appeal to the Court of Appeals. In his Anders brief to the Court of Appeals, appellate counsel found no non-frivolous grounds to raise on appeal and did not even note for the Court of Appeals any of the sentencing issues the petitioner now raises. The petitioner has not demonstrated cause and prejudice for failure to raise any of his arguments related to sentencing on his direct appeal. The facts relating to these arguments were all known at the time of sentencing and the petitioner raised the minor role adjustment at sentencing. (See Tr. dated April 11, 2000 at 7-10.) These arguments were available to the petitioner's appellate counsel, but none were made on appeal, and given the absence of any showing of cause and prejudice for failure to raise them on direct appeal, they are procedurally barred.
The petitioner's claim of ineffective assistance of trial counsel, is also procedurally barred. In Bill-Eko, the Court of Appeals for the Second Circuit held that the failure to raise ineffective assistance of counsel claims on direct appeal should not necessarily be treated similarly to a failure to raise other constitutional claims. See Bill-Eko, 8 F.3d at 114. Ineffective assistance of trial counsel claims often require consideration often require consideration of matters different from other constitutional claims and therefore the Court of Appeals formulated a general rule allowing ineffective assistance of counsel claims on collateral attack. See id.
However, Bill-Eko also recognized that in the "narrow category of cases" where the defendant has both new appellate counsel on direct appeal and the ineffective assistance claim is based solely on the record developed at trial, the petitioner must still show cause for not bringing the ineffective assistance claim on direct appeal, and prejudice resulting therefrom. See Billy-Eko, 8 F.3d at 115. The Bill-Eko court, held, however, "We expect that there will be few cases in which ineffective assistance claims will be based solely on the record developed at trial, and we also expect that most defendants bringing such claims on § 2255 motions will not find their claims barred." Id. at 116.
In this case, the petitioner did have new counsel appointed on his direct appeal, and his ineffective assistance of counsel claim is based solely on the conduct of his trial counsel. To the extent that the ineffective assistance of trial counsel can be considered an issue raised on appeal because it was specifically brought to the attention of the Court of Appeals in appellate counsel's Anders brief and the conviction was summarily affirmed, then that issue is barred on this petition because a petitioner cannot raise an issue on a § 2255 petition that was raised and rejected on direct appeal. United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (per curiam) ("It is well established that a § 2255 petition cannot be used to relitigate questions which were raised and considered on direct appeal.") (quotations omitted).
To the extent that the ineffective assistance of trial counsel was not sufficiently raised on direct appeal, then the issue is also barred because the petitioner has failed to show cause and prejudice for having failed to raise it on direct appeal. See also Jorge v. United States, 818 F. Supp. 55, 56-57 (S.D.N.Y. 1993) (claim barred in § 2255 petition because petitioner could have raised claim on direct appeal despite the fact that his appellate counsel ...