The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
Jose Campusano, proceeding pro se, has moved to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Campusano argues for relief on the basis of ineffective
assistance of counsel resulting from his former attorney's
alleged failure to: (1) adequately argue that the firearm found
in petitioner's apartment was not possessed in connection with
his drug offense; (2) move for a downward departure; and (3) file
a notice of appeal despite petitioner's request that he do so.
For the following reasons, Campusano's motion is denied.
A. Campusano's Criminal Conduct, Guilty Plea And Sentencing
Campusano was charged with conspiring with others from
September 2000 through October 2000 to violate the narcotics laws
in violation of 21 U.S.C. § 846. The object of this conspiracy was to distribute, and
possess with intent to distribute, more than 50 grams of crack
cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A).
If convicted of this crime, Campusano faced a mandatory minimum
of ten years imprisonment.
The petitioner was arrested at his apartment on May 16, 2001.
See 4/18/02 Sentencing Hearing Transcript, Ex. D to the
Government's Memorandum of Law in Opposition to Vacate Sentence
Pursuant to 28 U.S.C. § 2255 ("Opp. Mem."), at 25. During the
course of the arrest, the police recovered a 12-gauge shotgun,
12-gauge caliber ammunition, approximately 130 grams of cocaine,
2 electronic scales, a composition book with coded language, and
miscellaneous paraphernalia used in the packaging and trafficking
of narcotics. See id. at 25-26.
Campusano pled guilty, pursuant to a Plea Agreement, to a one
count Superseding Information charging that on September 27,
2000, Campusano distributed, and possessed with intent to
distribute, 27 grams of crack cocaine in violation of
21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). See Plea Agreement, Ex. A
to the Opp. Mem., at 2. The charge carried a mandatory minimum of
five years imprisonment. In the Plea Agreement, Campusano
stipulated that "[b]ecause the petitioner possessed a firearm, to
wit, a shotgun recovered in the petitioner's apartment at the
time of his arrest, the offense level is increased by two levels, pursuant to U.S.S.G. § 2D1.1(b)(1)." Id. The parties further
stipulated to an offense level of 31, a criminal history category
of I, and a Guidelines range of imprisonment of 108 to 135
months. See id. at 2-3. In return for the benefits obtained
through the Plea Agreement, namely, pleading to a charge that
carried a mandatory minimum of five years imprisonment instead of
the original charge which carried a mandatory minimum of ten
years imprisonment, petitioner agreed that he would "neither
appeal nor otherwise litigate under Title 28, United States Code,
Section 2255, any sentence within or below the stipulated
Guidelines range" of 108 to 135 months. Id. at 4.
At his plea allocution before Magistrate Judge Ronald L. Ellis
on November 7, 2001, Campusano testified under oath that he had
reviewed the Plea Agreement with his attorney, that he understood
it, and that he signed it. See 11/7/01 Plea Transcript, Ex. B
to the Opp. Mem., at 18-19. Campusano also testified that he was
satisfied with his attorney, see id. at 9, and that he thought
counsel was "doing a good job on [his] behalf." Id. at 3.
Campusano testified that he understood that he had agreed not to
appeal or otherwise litigate any sentence within or below the
stipulated guideline range of 108 to 135 months. See id. at 26.
This Court conducted sentencing proceedings on three separate
days; March 26, April 18 and May 21, 2002. See Exs. C, D & E to
the Opp. Mem. The principal issue at those proceedings was the propriety of
applying the firearm enhancement found in U.S.S.G. §
2D1.1(b)(1).*fn1 This enhancement had been stipulated to in
the Plea Agreement. Nonetheless, Campusano claimed that the
shotgun found in his possession at the time of his arrest
previously belonged to a violent neighbor and that he had taken
the shotgun away in order to diffuse a potentially dangerous
domestic dispute. See 3/26/02 Sentencing Hearing Transcript,
Ex. C to the Opp. Mem., at 3.
Notwithstanding petitioner's stipulation accepting the §
2D1.1(b)(1) enhancement, the Court invited petitioner to offer
evidence concerning the manner in which he came into possession
of the shotgun and therefore adjourned the hearing. See id. at
4, 7-8. On April 18, 2002, the second day of the sentencing
proceeding, Campusano called three witnesses to explain the
circumstances surrounding his possession of the shotgun. See
4/18/02 Sentencing Transcript, Ex. D to the Opp. Mem., at 6,
9-10, 13-14. These witnesses testified that a few weeks before
Campusano's arrest, Campusano had taken the gun from a violent
neighbor named Ricky who had used it to threaten his wife's life. See
id. at 7, 11, 15.
At the time of his arrest on May 16, 2001, however, petitioner
had in his possession not only the shotgun, but also "all the
tools of a narcotics business in the apartment." Id. at 25.
Although the Court found the defense witnesses credible and
concluded that Campusano "might have come into possession of this
particular weapon in a peaceful and well-meaning way," the Court
also found that "he didn't turn it into a local police station,
and he didn't get rid of it. What he did with it, [was] keep it
under his mattress in his bedroom, [and] keep ammunition
available for it around the house." 5/21/02 Sentencing
Transcript, Ex. E to the Opp. Mem., at 7-8. Because petitioner
had a loaded weapon available for use in his home, in which he
also had "all the tools of a narcotics business," he had failed
to prove that it was "clearly improbable" that the gun was
connected with the offense. See id. at 8. In the Court's view,
Campusano felt safer with a weapon in his home. "He felt that he
had some way to protect himself as a drug dealer, whether it was
against other drug dealers or those who robbed drug dealers or
customers who got angry, but it was a good idea to have
protection in the house." Id. Under these circumstances, the
enhancement was found to be appropriate.*fn2 See id.
On May 21, 2002, the Court sentenced Campusano to 108 months
imprisonment. See id. at 14. This sentence was at the bottom of
the range set forth in the Plea Agreement. Campusano did not file
a direct appeal although he claims that he instructed his
attorney to do so.