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January 27, 2004.


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 Page 3 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 have it?
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). Page 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 as follows:
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 Page 5 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 Page 6 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 Page 7 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 appeal.

  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 ...

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