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
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
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
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
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.
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,