The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District Page 2
Diomedes Raphaela has petitioned pursuant to 28 U.S.C. § 2255 to
set aside the judgment against him and the sentence imposed upon him
after he pleaded guilty to one count of conspiring to possess and
distribute five grams or more of cocaine base, commonly known as crack,
in violation of 21 U.S.C. § 846. Raphaela contends that he was the
victim of what is known as sentencing entrapment in that he was willing
to provide powdered cocaine but was pressured to provide crack, which
carries a longer sentence. He argues as well that there was insufficient
evidence to establish that he sold crack rather than in powdered cocaine.
Finally, he contends that his lawyer failed to render effective
assistance in connection with his plea by failing to raise the entrapment
issue. As explained briefly below, this petition is untimely, barred by
the terms of Raphaela's plea agreement, barred in large part by
Raphaela's failure to appeal, and devoid of merit. Accordingly, the
requested relief is denied and the petition is dismissed.
Raphaela entered his plea on June 9, 1999. He was placed under oath
(6/9/99 Tr. 3) and, after colloquy in which he informed the court that he
felt " [v]ery well, thank God," was found competent to enter a plea
(id. at 4). He said he had had
enough time to discuss the case with his lawyer, and that he was
satisfied with his lawyer's representation. (Id.) He
acknowledged having entered into a plea agreement that he had reviewed
with his lawyer and understood. (Id. at 10-11) He acknowledged
having obtained and arranged for the delivery of more than five grams of
crack cocaine. (Id. at 14-15) When he reported that he had been
asked more than once to get the drugs he finally delivered, he was
questioned by the court and responded as follows:
Q. [T]he person who asked you to get the drugs for
him asked you more than once to do that?
A. Yes, sir.
Q. And were you ready, willing and able to do it?
A. At first I told him I couldn't get it because I
didn't have it. In fact, he beeped me so I would
come and insisted that I get it. But I got it and
I sent it to him.
Q. Did you not get it at first because you didn't
A. Exactly, yes, sir.
Q. But you were willing to get it?
A. Yes, sir.
Q. And you knew where to get it?
A. Yes, sir.
(Id. at 15)
Raphaela's plea agreement with the government included an agreement
that the applicable Sentencing Guidelines range was 78-97 months
(11/15/02 letter of Jessica A. Roth, Esq., to the Court, Ex. A at 2) and
Raphaela's waiver of any right to appeal or litigate his sentence if he
was sentenced within that range (id. at 4).
Raphaela was sentenced on September 9, 1999 principally to 78 months'
imprisonment. Before sentence was imposed, Raphaela complained that on
the day he entered his plea, "I was not fully informed of what had
happened in my case. My attorney has not defended me honestly, correctly,
in my case." (9/9/99 Tr. at 6) Warming to his subject, Raphaela continued
Agent Hill manipulated me to commit a crime which
I wasn't willing to commit. My lawyer knew how
everything had happened, how the transfer had
occurred. And he didn't inform me of what had
happened in my case. And I remember that the day
that I gave my guilty plea, you, your Honor, asked
me if Agent Hill had insisted more than one time,
and I answered, yes, yes, sir. He insisted with me
more than one time. He even beat me, to lead me to
a point where I could become convinced,
manipulated, to commit a crime that I was not
going to commit.
(Id.) Despite that outburst, which contradicted his sworn
plea in numerous respects, Raphaela received credit for acceptance of
responsibility and the benefit of the generous plea bargain his lawyer
had struck with the government, and was sentenced at the bottom of the
applicable range. (See id. at 7-8)
The judgment was filed on September 13, 1999. On September 14, 1999,
Raphaela filed a Notice of Appeal. Leave was granted to withdraw that
notice on March 8, 2000, and the mandate issued on March 14, 2000.
This petition is dated July 8, 2002, and was received in the Pro Se
Office on July 18, 2002. In it, Raphaela states that he "feels he was
coerced by dealing with `crack' instead of
cocaine powder drugs," "which "caused me to be given a higher
sentence." (Petition at 4) He adds that his lawyer "was `ineffective' for
failing to argue sentencing entrapment defense, which caused him to be
punished harshly." (Id.)
By the terms of the Antiterrorism and Effective Death Penalty Act of
1996, known as the AEDPA, any motion pursuant to 28 U.S.C. § 2255
must be filed within one year from the latest of: the date on which the
judgment of conviction becomes final; the date on which any impediment to
making the motion caused by the government is removed; the date on which
a right the petitioner asserts was initially recognized by the Supreme
Court and made retroactive to cases on collateral review; or the date on
which facts supporting the claim could have been discovered through the
exercise of due diligence. 28 U.S.C. § 2255. In this case, Raphaela
was not impeded by the government and is asserting no new right. Further,
as is obvious from his own statements quoted above, he was aware of the
facts underlying his claim on the date of sentence. Therefore, the only
applicable date is the date his conviction became final, March 14, 2000.
That is to say, Raphaela had until March 14, 2001, to file this petition,
but did not send it until, at the earliest, July 8, 2002. The petition is
time-barred, and must be dismissed for
that reason alone.
Further, in his written plea agreement, which he acknowledged at the
time of his plea that he had understood and signed, Raphaela promised not
to appeal or to petition pursuant to 28 U.S.C. § 2255 if he was
sentenced within the Sentencing Guidelines range he and the government
had agreed to. He was sentenced at the bottom of that range. Therefore,
based on the plea agreement as well, this petition must be dismissed.
To the extent Raphaela seeks to argue sentencing entrapment, and even
assuming arguendo that that doctrine would apply in this case,
cf. United States v. Bala, 236 F.3d 87, 93
(2d Cir. 2000) (suggesting that even if viable, the doctrine would
require "outrageous government conduct"), or insufficiency of evidence
that he dealt in crack rather than powdered cocaine, he is barred twice
over. First, such claims are not cognizable in a proceeding pursuant to
Section 2255, which is intended to address only claims alleging a
jurisdictional defect, a constitutional error, or an error constituting a
"fundamental defect which inherently results in a complete miscarriage of
justice." United States v. Addonizio, 442 U.S. 178,
185 (1979). Claims of sentencing entrapment and insufficiency of evidence
that a defendant dealt in one controlled substance as opposed to another
do not fit those categories.
Moreover, Raphaela's failure to appeal dooms such
claims. A Section 2255 petition cannot do service for an appeal.
See, United States v. Frady, 456 U.S. 152,
165 (1982). In order for Raphaela to maintain this petition without
having appealed, he must show cause external to himself for having failed
to raise on appeal the issues he now presses, and prejudice resulting
from such failure. See Bousley v. United
States, 523 U.S. 614, 622 (1998); Coleman v.
Thompson, 501 U.S. 722, 753 (1991). Raphaela acknowledges his
failure to press an appeal, but argues that the issues he presents are
more properly presented in a Section 2255 petition. However, that is
certainly not true of his claims of sentencing entrapment or alleged
insufficiency of evidence, which are conventional issues for direct
Even Raphaela's claim of ineffective assistance of counsel could have
been pursued on appeal, because the record was fully developed in the
trial court and he had different counsel on appeal. Of course, following
Massaro v. United States, 123 S.Ct. 1690 (2003),
Raphaela had no obligation to pursue an ineffective assistance claim on
direct appeal, and could wait instead to pursue it in a petition pursuant
to Section ...