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June 23, 2004.

EDWIN PUJOLS, Petitioner,
U.S., Respondent.

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.

  B. Plea Proceeding

  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.

  C. Sentencing Proceeding

  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. at 10-11.

  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 ...

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