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July 26, 2004.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Gladstone Henery Newell ("Newell") has made an application pursuant to 28 U.S.C. § 2255 that his sentence be vacated because: (a) through a miscalculation of his criminal history score, he was not placed in the appropriate Criminal History category under the Sentencing Commission Guidelines ("Guidelines"); and (b) his counsel rendered ineffective assistance to him by failing to mount a "serious challenge to the pre-sentence report" by protesting the number of points attributed to him in the criminal history score that was calculated by the Probation Department in that report. The respondent opposes Newell's application. It contends that he is barred from raising his claim respecting the determination made on the Criminal History category into which he was placed because the claim was not raised on direct appeal from the judgment of conviction. The respondent also contends that the assistance rendered to Newell by his counsel was not ineffective. II. BACKGROUND

  Newell was convicted upon a plea of guilty to violating 8 U.S.C. § 1326, which makes it an offense for an alien who has been deported from the United States thereafter to enter or to be found in this country unless the alien has received the express consent of the United States Attorney General to reapply for admission to the United States. Prior to the date on which Newell was scheduled to be sentenced, his attorney submitted a writing to the court. In that document, Newell's counsel urged that the court depart downward from the Guidelines range for imprisonment applicable to his client because of what he alleged was an unnecessary delay, on the part of the government, in prosecuting the criminal action against Newell. Newell's counsel also requested that Newell's sentence run concurrently with the unserved portion of a sentence that had been imposed upon Newell by the state of New York. Newell was then serving that New York sentence. Newell's counsel also challenged the correctness of placing his client in Criminal History category VI. He maintained that the probation officer who prepared Newell's pre-sentence report had, through a "mechanical application" of the Guidelines, included four points inappropriately when calculating Newell's criminal history score by relying on two monetary and two custodial sentences that had been imposed on Newell for "minor marijuana-related offenses" that Newell had committed approximately ten years prior to his re-entry into the United States illegally. The court was also asked to rule on an outstanding defense motion, through which Newell sought to have his indictment dismissed in order to prevent, among other things, what he perceived would be a violation of the Constitution's ex post facto clause if the indictment was allowed to stand After an extensive discussion with all parties concerning the various matters raised by Newell's counsel in his pre-sentence submission to the court, your Honor determined that Newell was placed in the appropriate Criminal History category. Your Honor explained that this was so, in part, because of "a pattern of escalating criminal behavior" in which Newell had engaged beginning in 1984, including the marijuana-related offenses that had been highlighted by Newell's counsel and to which Newell points in connection with the instant application. Furthermore, your Honor adopted expressly the findings of fact contained in the pre-sentence report, with the exception of a finding by the Probation Department that the Guidelines mandated that Newell's sentence run concurrently with the state sentence that he was serving. Your Honor advised the parties that the determination whether Newell's federal sentence would run concurrently with his state sentence was a matter left to the court's discretion. The parties were then advised that the court had determined to exercise its discretion so as to impose a federal sentence upon Newell that would run concurrently with the balance of the state sentence that Newell was obligated to serve.

  Newell appealed from the judgment of conviction to the Second Circuit Court of Appeals. He asked that court to upset his sentence because it violated the ex post facto clause of the Constitution. Newell also argued that he was entitled to a lower sentence, based upon a notice of possible penalties he had been given at the time of his deportation from the United States. The Second Circuit affirmed Newell's conviction in an unpublished opinion. Thereafter, Newell made the application that is before the Court.

  In his § 2255 application, Newell contends that his criminal history score was enhanced incorrectly by the Probation Department because, pursuant to Guidelines § 4A1.2(c) and Application Note 4 pertinent thereto, the Probation Department should not have considered the sentence he received upon a disorderly conduct conviction, in calculating his criminal history score. Newell reasoned that the conviction did not result in his being imprisoned. Moreover, Newell explained that the offense disorderly conduct is not similar to the offense for which your Honor sentenced him. See Guidelines § 4A1.2(c)(1). In addition, Newell maintains that the marijuana-related offenses identified at paragraphs 29, 31, 33 and 35 in his pre-sentence report were "civil infractions" that should not have been considered by the Probation Department when it calculated his criminal history score.*fn1


  Procedural Default

  As is clear from the above, Newell did not present to the Second Circuit his claim that he was placed in the wrong Guidelines Criminal History category due to a miscalculation of the criminal history points assigned to him based upon the marijuana-related criminal sentences he received that are noted, supra. The respondent maintains that Newell's failure to raise that claim on his direct appeal prevents him from presenting it to your Honor in a motion made pursuant to 28 U.S.C. § 2255. The respondent is correct.

  An application made pursuant to 28 U.S.C. § 2255 cannot serve as a surrogate for a direct appeal. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593 (1982). Therefore, a movant, such as Newell, may not raise, by way of a § 2255 application, a claim which was not raised on appeal unless he can demonstrate cause for the failure to raise the issue and actual prejudice resulting from it. See Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611 (1998); Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-2644 (1986); Campino v. United States, 968 F.2d 187, 190-91 (2d Cir. 1992); Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999). Newell has not made any demonstration of cause for his failure to raise before the Second Circuit Court of Appeals, his claim that he was assigned improperly to a Guidelines Criminal History category due to a miscalculation of the points assigned to prior criminal sentences he received. Therefore, he is not entitled to the relief he seeks based on that branch of his § 2255 application.

  Ineffective Assistance of Counsel

  Newell alleges that his counsel rendered ineffective assistance to him by failing to make a "serious challenge" to that portion of the pre-sentence report prepared by the Probation Department that analyzed the criminal history points assigned to Newell and that resulted in Newell's being placed in what, he contends, was an improper Criminal History category. The Supreme Court has explained that the right to counsel guaranteed by the Sixth Amendment is the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14 [1970]). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See Strickland, 466 U.S. at 687-696, 104 S.Ct. at 2064-2069. First a criminal defendant must show that counsel's performance was deficient; that is, that it fell below an "objective standard of reasonableness" measured under "prevailing professional norms." Id. at 687-688, 2064-2065. Second, the criminal defendant must affirmatively demonstrate prejudice, by showing that "there is a reasonable probability that, but for counsel's [error], the result of the proceeding would have been different." Id. at 694, 2068. See also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S.Ct. 477 (1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Considerable deference is accorded counsel's performance; counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 2066.

  Newell's contention, that he received ineffective assistance from his counsel, is undermined by a simple reading of the writing submitted to your Honor by Newell's counsel prior to the date on which Newell was sentenced. In that writing, Newell's counsel challenged the Guidelines calculation made by the Probation Department. In particular, Newell's counsel ascribed error to Newell's criminal history score because it contained four points for the "minor marijuana-related offenses which occurred over a short period of time almost ten years before [Newell] illegally re-entered the United States." Newell's counsel cited the precise page and paragraphs of the pre-sentence report in his pre-sentence submission to the court that Newell relies upon in connection with his § 2255 motion. Newell's attorney characterized the Probation Department's analysis harshly as a "mechanical application" of the Guidelines. Moreover, he noted that the Probation Department's analysis resulted in what he described as a report to the court that "over represents [Newell's] criminal history category." As a result, counsel to Newell urged your Honor to depart ...

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