The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
Edwin Pujols, proceeding pro se, seeks a writ of habeas
corpus pursuant to section 2255 of Title 28 of the United States
Code, to vacate his July 25, 2001 conviction. In his petition,
Pujols asserts that his guilty plea was not knowingly and
voluntarily made due to ineffective assistance of counsel. For
the reasons set forth below, Pujols's motion is DENIED.
A. Pujols's Offense Conduct
On or about August 17, 1999, a federal grand jury sitting in
the Southern District of New York returned a three-count
indictment against Pujols and several others. Pujols was only
charged in Count One, which accused him of participating in a
conspiracy to distribute and possess with the intent to
distribute in excess of five kilograms of cocaine in violation of
21 U.S.C. § 846. The prosecution arose out of the transportation of 170
kilograms of cocaine by truck from New Orleans to the New York
City area. Pujols, along with his co-conspirators, arranged for
the transportation of the drugs and then sold some of the cocaine
once the drugs arrived in the New York City area.
On October 13, 2000, Pujols pled guilty to Count One of the
indictment, conspiring to sell more than five kilograms of
cocaine in violation of 21 U.S.C. § 846. During the plea hearing
held before Magistrate Judge Kevin Nathaniel Fox, Pujols withdrew
his prior plea of not guilty as to Count One and entered a plea
of guilty as to that count. At that time, Magistrate Judge Fox
informed Pujols of the nature of the charge to which Pujols was
offering to plead guilty and of the possible penalties associated
with this offense.
Magistrate Judge Fox advised Pujols, among other things, that
he had the right to plead not guilty and that if he did so, he
would have a right to trial by jury in which he was represented
by counsel and where he would have the opportunity to confront
and cross-examine witnesses on his own behalf. Transcript of Plea
held on October 13, 2000, at 10-11. Magistrate Judge Fox sought
and received assurances from Pujols that he understood and
appreciated the nature and content of the indictment and that he
was entering his guilty plea knowingly and voluntarily.
Magistrate Judge Fox confirmed that Pujols wished to plead guilty because he was, in
fact, guilty of the charged offense, and that Pujols understood
by doing so he was subjecting himself to a possible maximum
sentence of life imprisonment. Id. at 9.
Pujols's sentencing hearing was held before this Court on July
25, 2001. The Court adopted the United States Probation
Department's sentencing guideline calculation and the drug amount
on which it was based. It established that Pujols's base offense
level was thirty-eight pursuant to U.S.S.G. § 2D1.1(c)(2), that a
two-level reduction was warranted because Pujols satisfied the
"safety-valve" provision set forth in U.S.S.G. § 5C1.2, and that
an additional three-level reduction under U.S.S.G. § 3E1.1 for
acceptance of responsibility was warranted.
At the hearing, Pujols acknowledged that he had reviewed the
Pre-Sentence Investigation Report and spoken with his attorney
about it. Transcript of Sentencing held on July 25, 2001, at 2.
The Court also heard argument from the parties with respect to
Pujols's motion for a downward departure based on his allegedly
substantial assistance to the Government and his extraordinary
family circumstances, and Pujols's motion for a two-level
reduction on the basis that he was a minor participant pursuant
to U.S.S.G. § 3B1.2(b). The Court then provided Pujols with an opportunity to speak on
his own behalf. Among other things, Pujols stated that: "I want
to present my apologies and tell you that I am very sorry for the
crime that I committed, very sincerely. I want to tell you that
it was a big mistake on my part to have committed this crime, but
I want to assure you that it was really a mistake that I
committed in letting myself be dragged by the epidemic which is
so damaging for the world at large today, looking for easy money,
led by their ambition, because criminality is not in my head and
it's not part of my blood. That is why, your Honor, in making
your decision, I would like to ask you for clemency. . . ." Id.
Following Pujols's statement, the Court recognized that it had
the authority to depart downward on the basis of substantial
assistance to the Government and on the basis of extraordinary
family circumstances. The Court determined, however, that a
downward departure was not warranted. The Court also concluded
that Pujols did not show that he was less culpable than the
average conspiracy participant and thus was not entitled to a
role reduction based on his argument that he was a minor
participant in the conspiracy. Id. at 11. The Court then
ordered Pujols to serve a sentence of 135 months, followed by a
five-year term of supervised release, and to pay a mandatory $100
special assessment. The Court informed Pujols of his right to
appeal and Pujols did appeal his sentence. On December 17, 2001,
the United States Court of Appeals for the Second Circuit dismissed Pujols's appeal of
conviction in an unpublished order. See United States v.
Pujols, No. 01-1238(L), 01-1410(CON) (2d Cir. Dec. 17, 2001).
On March 4, 2003, Pujols filed the instant action, pursuant to
28 U.S.C. § 2255, to vacate, set aside or correct his sentence on
the ground that he ...