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April 23, 2005.


The opinion of the court was delivered by: ARTHUR SPATT, District Judge


Lowrita Rickenbacker ("Rickenbacker" or the "Petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Petitioner seeks to vacate the judgment and sentence imposed following her plea of guilty to credit card account fraud on the following grounds: (1) ineffective assistance of counsel; (2) prosecutorial error; and (3) the Bureau of Prison's failure to follow the sentencing recommendation of the court. For the reasons stated below, Rickenbacker's petition is denied. I. BACKGROUND

  On February 14, 2002, the Petitioner and others were arrested based on a complaint alleging that they violated 18 U.S.C. §§ 371 and 1029 by obtaining things of value aggregating more than $1,000 through the use of credit cards that were stolen or obtained with intent to defraud.

  On June 18, 2002, the Petitioner entered into a written cooperation agreement with the Government that provided, among other things, that the Petitioner must assist the Government by giving truthful testimony and not commit or attempt to commit any further crimes. In consideration, the Government agreed not to oppose a reduction of the Petitioner's sentence for acceptance of responsibility. The Government also agreed to file a motion pursuant to United States Sentencing Guidelines ("USSG") § 5k1.1 if the Petitioner provided substantial assistance to the Government. The agreement further stated that if the Petitioner violated any term of the agreement the Government would be released from its obligations under the agreement.

  On July 18, 2002, the Petitioner entered a plea of guilty before United States Magistrate Judge E. Thomas Boyle to a single-count information charge of credit card fraud. Following her plea, the Petitioner was released on a $10,000 unsecured bond. On November 17, 2002, the Petitioner was arrested in Suffolk County, New York and charged with Aggravated Unlicensed Driving and Driving While Impaired. At the time of arrest, the Petitioner admitted that she had been using crack cocaine and was found to be in possession of a crack pipe. On November 26, 2002, the Court revoked the Petitioner's bail.

  After the Petitioner's arrest, the Government notified her that it would not file a USSG § 5k1.1 motion. The Government explained that the Petitioner failed to provided substantial assistance and failed to adhere to the terms of the cooperation agreement when she committed or attempted to commit another crime.

  On December 20, 2002, the Petitioner was sentenced to twenty-four months imprisonment, three years supervised release, and a special assessment of $100, for her plea of guilty to credit card fraud. At the Petitioner's request, the Court recommended that the Bureau of Prisons place her in a "shock incarceration" program. The Petitioner did not appeal her sentence.

  On April 7, 2003, while in custody at the Federal Correctional Institution in Danbury, Connecticut, the Petitioner filed this motion alleging: (1) counsel rendered ineffective assistance by failing to file a motion for a downward departure based on substandard conditions the Petitioner endured while detained at the Nassau County Correctional Center; (2) prosecutors erred by not notifying the Court about the Petitioner's cooperation; and (3) the Bureau of Prisons did not adhere to orders given by the Court at sentencing. II. DISCUSSION

  A. Standard of Review

  Section 2255 provides a post conviction remedy for federal prisoners similar to the historic writ of habeas corpus available to state prisoners that is now codified in section 2254. Pursuant to section 2255, a federal prisoner in custody "may move the court which imposed the sentence to vacate, set aside or correct the sentence" on the basis that it "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." 28 U.S.C. § 2255.

  As stated by the Second Circuit, "because requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (citing United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 1593, 71 L.Ed.2d 816 (1982)). As a result, prisoners seeking habeas corpus relief pursuant to Section 2255 must show both a violation of their constitutional rights and "substantial prejudice" or a "fundamental miscarriage of justice." Id. at 301.

  Further, in Section 2255 proceedings, the Supreme Court has recognized the rule of procedural default or "exhaustion" of federal remedies. Reed v. Farley, 512 U.S. 339, 354 (1994). Generally, the rule bars the presentation of a claim through a writ of habeas corpus where the petitioner failed properly to raise the claim on direct review. Id. If the claim has not been presented on direct review, the requirement may be waived only if the petitioner establishes "cause" for the waiver and shows "actual prejudice" from the alleged violations. Id.

  However, the traditional procedural default rule generally does not apply to ineffective assistance of counsel claims. Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690; 155 L. Ed. 2d 714 (2003). In Massaro, the Supreme Court held that ineffective assistance claims are appropriately litigated in the context of a collateral challenge in the district court and not on direct appeal. Id. at 504-05; accord United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 n. 9 (2004). This is so because the trial record is not developed precisely for the object of litigating the ineffective assistance claim, but instead is devoted to issues of guilt or lack of guilt. Massaro, 538 U.S. at 504-05.

  Finally, the Court is mindful that the petitioner is proceeding pro se and that her submissions must be liberally construed in favor of the petitioner. See Douglas v. United States, 13 F.3d 43, 47 (2d Cir. 1993). With these principles in mind, the Court will discuss the procedural viability of each of the Petitioner's collateral challenges to her conviction. If the claim was properly brought before this Court in a ...

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