The opinion of the court was delivered by: Arthur Spatt, District Judge.
In 1989, Vega and numerous other defendants were indicted for activities related to their narcotics operation known as the "Unknown Organization." The complete factual background of this case has been elaborated in earlier opinions of this Court and the Court of Appeals for the Second Circuit. See United States v. Vega, 11 F.3d 309, 313-15 (2d Cir. 1993); Ramirez v. United States, 185 F. Supp.2d 246, 249-52 (E.D.N.Y. 2001); Concepcion v. United States, 181 F. Supp.2d 206, 210-11 (E.D.N.Y. 2002). Thus, only facts and procedure necessary for the instant disposition are stated herein.
On November 15, 1991, this Court entered a judgment convicting Vega, after a guilty plea, of conspiracy to distribute and possess with intent to distribute more than one hundred grams of heroin and more than five hundred grams of cocaine, in violation of 21 U.S.C. § 846, 841(b)(1)(B). The Court sentenced Vega to 360 months' imprisonment, to be served consecutively to a previously imposed New York State sentence, and to be followed by a five-year term of supervised release.
Vega directly appealed his conviction to the Court of Appeals for the Second Circuit ("Second Circuit"), contending that: (1) this Court should have allowed him to withdraw his guilty plea; and (2) the Court erred in imposing consecutive sentences. On December 3, 1993, the Second Circuit affirmed his conviction, finding that the Court did not abuse its discretion in: (1) declining to allow Vega to withdraw his guilty plea; and (2) imposing his federal sentence consecutive to his previously imposed state court sentence. United States v. Vega, 11 F.3d 309, 313-15 (2d Cir. 1993).
On April 23, 1997, Vega filed the instant motion, alleging that: (1) appellate counsel was ineffective for: (i) failing to request or attend oral argument on his direct appeal; and (ii) failing to argue that the Court should have determined, before sentencing, the amount of narcotics that was reasonably foreseeable to Vega; (2) the Second Circuit unfairly denied his motion for reargument of his direct appeal.
By letter dated April 8, 2003, Vega requested that the Court allow him to amend his petition to include a new claim in light of Coker v. United States, No. 01 Civ. 5045, 2003 WL 1563374, at *2-4 (S.D.N.Y. Mar. 25, 2003), which discusses the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Court granted Vega's request and gave him until May 1, 2003 to file the amendment. As of May 9, 2003, the Court has not received any documentation from Vega and thus will not consider his amendment. Further, having reviewed both Apprendi and Coker, the Court did not find an issue that would change the outcome of Vega's instant motion.
It is well settled that a Section 2255 motion is not a substitute for direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982); United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). Accordingly, "Section 2255 claims not raised on direct review are procedurally barred unless they raise constitutional or jurisdictional claims, or result in a `complete miscarriage of justice.'" Johnson v. United States, 313 F.3d 815, 817 (2d Cir. 2002) (quoting Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996)). A petitioner seeking to raise a claim in his Section 2255 motion that he did not raise on direct appeal must show "cause and prejudice" or a "fundamental miscarriage of justice" for his failure to do so. Frady, 456 U.S. at 167, 102 S.Ct. 1584 (citing Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216(1973)); Munoz, 143 F.3d at 637.
One exception to this procedural default rule is for claims of ineffective assistance of counsel. Such claims may be brought in a Section 2255 proceeding whether or not the petitioner could have raised them on direct appeal. Massaro v. United States, ___ U.S. ___, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
A. As to the Ineffective Assistance of Counsel Claim
Vega argues that his appellate counsel was ineffective for: (i) failing to request and appear for oral argument in his direct appeal to the Second Circuit; and (ii) failing to argue that the Court should have determined, before sentencing, the amount of narcotics that was reasonably foreseeable to Vega.
In order to prevail on an ineffective assistance of counsel claim, a petitioner must first show that his counsel performed deficiently and that the deficiency caused actual prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner may prove the deficiency prong by establishing that his attorney's conduct fell "outside the wide range of professionally competent assistance," id. at 690, 104 S.Ct. 2052, and establish prejudice by showing a "reasonable probability" exists that, but for the deficiency, "the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. However, the court must "indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
Although the test for ineffective assistance of counsel contains two prongs, the Supreme Court specifically noted that the federal district courts need not address both components if a petitioner fails to establish either one. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. "In particular, a court need not determine whether counsel's performance was deficient before ...