The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.
Petitioner Max Olaya-Rodriguez ("Olaya-Rodriguez" or the "Petitioner") has filed a petition pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence of 135 months' incarceration and a five-year supervised release imposed by this Court. The United States (the "Government") has opposed the petition which will be denied for the reasons set forth below.
Olaya-Rodriguez pled guilty without a plea agreement on December 1, 1999 before the Honorable Allen G. Schwartz to a one-count indictment which charged him and thirteen co-defendants with participating from 1996 to mid-1998 in a conspiracy to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. § 846. During his plea allocution, Olaya-Rodriguez admitted that in 1997 and 1998 he had transported for a co-defendant a total of approximately $400,000 in proceeds from the sale of heroin. Olaya-Rodriguez moved prior to sentencing for downward departure on several grounds, which the Government opposed.
Olaya-Rodriguez was sentenced on May 19, 2000, at which time there were two contested sentencing issues: whether the base offense level was 38 or some lower number, and whether a two-level downward departure was warranted on the ground that Olaya-Rodriguez was a "minor participant" in the heroin conspiracy. See U.S.S.G. § 3B1.2(b). The Court denied the request of Olaya-Rodriguez for a downward departure and imposed a sentence of 135 months, at the bottom of the range, in addition to a five-year term of supervised release.
Represented by new counsel on appeal, Olaya-Rodriguez challenged the sentence on three grounds: (1) that the Court erred in setting a base offense level of 38 and holding the defendant responsible for in excess of thirty kilograms of heroin; (2) that the Court erred in denying the defendant a "minor role" downward departure; and (3) that the Court erred in sentencing the defendant to a five-year term of supervised release. In a summary order addressing the Olaya-Rodriguez's appeal and that of three co-appellants, the Court of Appeals rejected these contentions. United States v. Bonilla, 2001 WL 792179 (2d Cir. July 11, 2001).
On or about June 3, 2002, Olaya-Rodriguez filed a petition raising ten principal reasons for vacating his sentence on the grounds of the ineffective assistance of his counsel with respect to the minor role adjustment, his assistance to the Government, the quantity of the drugs involved, the sufficiency of the evidence, a failure to comply with Apprendi v. New Jersey, 530 U.S. 466 (2000), his guilty plea, the lack of a Fatico hearing, his pretrial detention, his consent to deportation, and the infractions of four lawyers whom he had discharged.
Following the untimely death of Judge Schwartz, this action was reassigned. The petition, the Government's opposition and Olaya-Rodriguez's reply were marked fully submitted on April 16, 2003.
The Petition is Procedurally Barred Except For the Ineffective Assistance of Counsel Claim
To the extent that Olaya-Rodriguez has raised issues that he, with new appellate counsel, failed to raise in his direct appeal of his sentence, he is procedurally barred from doing so in this action. It is well-established that "if a petitioner failed to assert a claim on direct review, 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 or that he is `actually innocent' of the crime of which he was convicted." DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998). "`Cause' . . . must be something external to the petitioner, something that cannot be fairly attributable to him." Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) (per curiam) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Olaya-Rodriguez does not contest his guilt and has not demonstrated any cause for his procedural default.
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, 1694, ___ L.Ed.2d ___, (2003) (abrogating Billy-Eko v. United States, 8 F.3d 111, 114-15 (2d Cir. 1993)). As a result, Olaya-Rodriguez's ineffective assistance of counsel claims will be dealt with separately.
In addition, in certain instances, as will be discussed below, Olaya-Rodriguez has raised issues that were in fact raised by his appellate counsel and were decided by the Court of Appeals against Olaya-Rodriguez. "[S]ection 2255 may not be employed to relitigate questions which were raised and considered on direct appeal." Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curiam).
The standard by which trial counsel can be deemed constitutionally ineffective is a strict one. A defendant claiming ineffective assistance of counsel must: (1) overcome a strong presumption that his counsel's conduct was reasonable and show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms"; and (2) "affirmatively prove prejudice," that is, show that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 693-94 (1984); see also Hernandez v. United States, 202 F.3d 486, 488 (2d Cir. 2000) ("[u]nder the Strickland standard, a petitioner must establish both (1) that counsel made errors so serious that defendant was deprived of reasonably competent representation, and (2) that counsel's deficient performance prejudiced the defense"). Only if both of these elements are satisfied can a defendant demonstrate that his counsel made errors "so serious" that "counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment," and that the defendant was, as a result, deprived of a fair proceeding. Strickland, 466 U.S. at 687.
The same standard is appropriate for appellate counsel, who cannot be deemed ineffective for raising but failing to prevail on a given argument, given the strict requirements for a showing of ineffective assistance. "[A]ppellate counsel is not required to raise every colorable claim of error." Soares v. United States, 66 F. Supp.2d 391, 397 (E.D.N.Y. 1999) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)). An ineffective assistance of appellate counsel claim can succeed if "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker" and "there was a reasonable ...