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JACKSON v. U.S.

United States District Court, S.D. New York


July 1, 2004.

KENNETH LEROY JACKSON, SR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge

MEMORANDUM OPINION AND ORDER

Kenneth L. Jackson ("Jackson") has filed this timely petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2255. For the following reasons, the petition is denied.

  Jackson was indicted for conspiracy to distribute heroin. The evidence against him included recorded conversations in which he assisted in the negotiations to purchase heroin. Jackson pleaded guilty pursuant to a plea agreement with the Government in which his career offender status set both the offense level and criminal history category. Jackson had a lengthy history of convictions, including convictions on drug and firearm charges. The stipulated guidelines range was 151 months to 188 months' imprisonment. Jackson waived all appeal and collateral attack rights so long as he was not sentenced above that range. Jackson was sentenced on January 11, 2002 principally to 151 months in prison.

  Jackson filed a notice of appeal and his appellate counsel, who was not his attorney in the district court proceedings, filed an Anders brief. The conviction was affirmed on June 27, 2003.

  Jackson appears to argue in his petition that his sentence should have been based on a smaller quantity of heroin than one kilogram, and that his attorney was ineffective for not arguing that issue at sentence and for advising him to plead guilty. The latter argument rests on Jackson's assertion that he was innocent since the Government did not prove that the one kilogram of heroin he and his co-defendant tried to purchase was in fact heroin.

  Jackson's arguments regarding the quantity of heroin are barred both by his plea agreement and, in the absence of any plea agreement, by his failure to raise the issue on direct appeal. In any event, the argument misconstrues the basis for his sentence. As a career offender, his guidelines range was 151 months to 188 months wholly apart from any consideration of a drug quantity.

  Jackson's claim regarding his attorney must also be rejected. The Government's opposition to this petition correctly describes the applicable legal standard for an ineffectiveness of counsel claim. Under that standard, Jackson has not shown a basis for finding that the representation that he received in the district court was deficient. As already discussed, his attorney did not need to argue the issue of the drug quantity at the time of his sentence since it was his career offender status that was determining his guidelines range. In any event, she eloquently argued on Jackson's behalf a host of mitigating factors and Jackson received a sentence at the lowest end of the guidelines range.

  Finally, Jackson's argument that he is actually innocent reflects a misunderstanding of the crime with which he was charged. He was charged with and pleaded guilty to a drug conspiracy charge in which the evidence, including tape recorded conversations, reflected that he and his co-defendant negotiated with a Government informant to purchase drugs. As a result, there was no necessity that the Government prove that any actual heroin was ever purchased by or transferred to Jackson. Jackson's allocution at his plea provided an adequate factual basis for finding him guilty of the conspiracy charge.

  Conclusion

  The petition for a writ of habeas corpus is denied. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).

 

SO ORDERED.
20040701

© 1992-2004 VersusLaw Inc.



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