United States District Court, E.D. New York
April 23, 2005.
LOWRITA RICKENBACKER, Petitioner,
UNITED STATES OF AMERICA, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
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
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.
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 collateral
proceeding, the Court will then review the substance of the
claim. B. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, a petitioner
must demonstrate: (1) that her counsel's performance fell below
an objective standard of reasonableness under prevailing
professional norms; and(2) that she was prejudiced by her
counsel's deficient performance. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In
applying the above two-prong test, "judicial scrutiny of
counsel's performance must be highly deferential" and "a court
must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The inquiry
focuses "on the fundamental fairness of the proceeding whose
results are being challenged." Id. at 696, 104 S. Ct. at 2069.
"The court's central concern is not with `grading counsel's
performance' but with discerning `whether despite the strong
presumption of reliability, the result of the particular
proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just
results.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir.
1990) (quoting Strickland, 466 U.S. at 696-97,
104 S. Ct. at 2069).
The burden is on the petitioner to "overcome the presumption
that, under the circumstances, the challenged action `might be
considered sound trial strategy.'" Strickland,
466 U.S. at 689, 104 S. Ct. at 2065. Indeed, as the Supreme Court has noted,
"there are countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys would not defend a
particular client in the same way." Id.
With respect to the second prong, the petitioner can only
establish prejudice if there is a "reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Billy-Eko v. United
States, 8 F.3d 111, 114 (2d Cir. 1993). In the context of
evaluating counsel's performance with regard to sentencing, a
claim of ineffective-assistance can only be considered
prejudicial if the petitioner could have received a lesser
sentence. For example, if the petitioner claims that counsel
failed to move for a downward departure, the claim can only
succeed if the petitioner was actually eligible for the
departure. See Rosario-Dominguez v. United States,
353 F. Supp. 2d 500, 517 (S.D.N.Y. 2005); Lopez v. United States, 2002
WL 1471540, at *3 (E.D.N.Y. May 15, 2002); United States v.
Heron, 1999 WL 509469, at *2-3 (S.D.N.Y. July 19, 1999)
("Because [petitioner] was not entitled to a downward departure,
his attorney caused him no cognizable prejudice.").
Here, the Petitioner argues that her attorney failed to file a
motion for a downward departure of her sentence based on
perceived hardships that the petitioner endured while being
incarcerated at the Nassau County Correctional Center. In
support, the Petitioner submits the information she provided her
attorney before sentencing. The information consists of letters
written to Sheriff Reilly complaining of the conditions that she endured while detained at the Nassau
County Correctional Center before she was sentenced.
In one of the letters, dated April 16, 2002, Rickenbacker
complained of unsanitary food preparation and conditions. She
detailed several instances where rodent feces and bite marks were
on her milk containers. In another instance, she and other
inmates were served bread that rodents apparently had partly
eaten. In addition, she was served a loaf of bread in which a
mouse had created a tunnel inside. Rickenbacker also complained
that the library was inadequate and lacked required books and
other materials. Based on these complaints, the Petitioner
requested that her counsel move for a downward departure for
substandard conditions during pretrial detention.
In United States v. Carty, 264 F.3d 191 (2d Cir. 2001), the
Second Circuit held "that pre-sentence confinement conditions may
in appropriate cases be a permissible basis for downward
departures." Id. at 196; see also United States v. Teyer,
322 F. Supp. 2d 359, 377 (S.D.N.Y. 2004); United States v.
Mateo, 299 F. Supp. 2d 201, 207-12 (S.D.N.Y. 2004). In Carty,
the defendant was allegedly held in a four-foot by eight-foot
cell with three or four other inmates without light or running
water. He received ten to fifteen minutes per day outside of his
cell to bathe and was allowed to make only one phone call per
week. The only toilet available was a hole in the ground. He was
denied access to paper, pens, newspaper, and radio. In addition, while he was incarcerated he lost forty pounds. Carty,
264 F.3d at 193. After holding that these conditions could justify a
downward departure, the Second Circuit remanded the case to the
district court to reconsider whether these conditions warranted a
downward departure. Id. at 197. Ultimately, the district court
declined to downwardly depart on the basis of this defendant's
substandard pretrial detention conditions. See Teyer,
322 F. Supp. 2d at 378 n. 9.
In this case the Petitioner's alleged substandard conditions do
not rise to the level that would warrant a downward departure.
Although the conditions that the Petitioner allegedly experienced
were unpleasant, the Court does not find that they are
"extraordinary" or "outside the heartland" so as to justify a
departure. See, e.g., Mateo, 299 F. Supp. 2d at 211 (finding
that a downward departure was appropriate where the defendant
experienced sexual abuse by a prison guard and the birth of a
child without medical attention). Here, the Petitioner was served
food that she perceived that rodents had gained access to and was
not provided with a fully stocked library. These conditions are
not extraordinary in comparison with the abusive conditions
detailed in Mateo and Carty.
Based on the reasoning stated above, the Court finds that the
Petitioner's counsel acted reasonably in deciding not to move for
a downward departure. In addition, Rickenbacker has failed to
demonstrate she was prejudiced by the decision. Because there was
no reasonable basis for a downward departure based on substandard pre-sentence detention, counsel's decision not to request a
downward departure had absolutely no effect on the outcome of the
sentence. Accordingly, the Court rejects Rickenbacker's claim of
ineffective assistance of counsel based on the alleged failure by
her attorney to move for a downward departure on the ground of
the conditions of her pre-trial detention.
Generally, when a prisoner claims that her lawyer failed to
make a motion or adopt a particular legal strategy, a hearing is
necessary in order to determine why the attorney failed to take
the step the petitioner claims was appropriate. Cox v.
Donnelly, 387 F.3d 193, 201 (2d Cir. 2004); Chang v. United
States, 250 F.3d 79, 84-86 (2d Cir. 2001). However, as stated
above, the record of here clearly demonstrates that there was no
basis for the Petitioner's requested motion. Therefore, her claim
of ineffective assistance of counsel is denied.
C. Prosecutorial Error
The Petitioner claims that her cooperation agreement was not
taken into consideration by the Court at sentencing and that her
counsel and the prosecutor did not mention her cooperation. The
Petitioner did not raise this issue, nor did she appeal her
As stated above, "claims not raised on direct appeal may not be
raised on collateral review unless the petitioner shows cause and
prejudice." Massaro, 538 U.S. at 504, 123 S. Ct. at 1693; see
also Bousley v. United States, 523 U.S. 614, 621-22, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998); United States v.
Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584, 71 L. Ed. 2d 816
(1982). Claims may be raised for the first time in a section 2255
motion if the defendant demonstrates either: (1) "cause for
failing to raise the issue and prejudice resulting therefrom"; or
(2) actual innocence. Rosario v. United States, 164 F.3d 729,
732 (2d Cir. 1998) (quoting Douglas v. United States,
13 F.3d 43, 46 (2d Cir. 1993). "To satisfy the `cause' requirement, the
petitioner must show circumstances `external to the petitioner,
something that cannot be fairly attributed to him.'"
Rosario-Dominguez v. United States, 353 F. Supp. 2d 500, 508
(S.D.N.Y. 2005) (quoting Marone v. United States, 10 F.3d 65,
67 (2d Cir. 1993) and Coleman v. Thompson, 501 U.S. 722, 753,
111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991)).
Rickenbacker's petition states that she did not appeal because
she was unadvised as to her rights. Rickenbacker also states that
she did not raise the claims because of "ignorance." These
reasons alone fail to demonstrate a sufficient cause for her
failure to file an appeal. The two reasons that the Petitioner
states in her motion are directly attributable to herself and not
to any external source. Accordingly, the Petitioner's failure to
raise the claim of prosecutorial error on appeal is a procedural
bar to any subsequent collateral attack on the sentence by a
section 2255 motion.
However, even assuming the Petitioner was not procedurally
barred, the claim would fail. The Court, the Government, and the
Petitioner's counsel all had a valid reason not to mention the Petitioner's claim of cooperation. The
Petitioner forfeited her right under the cooperation agreement to
a 5k1.1 motion for providing substantial assistance when she was
arrested and charged with Aggravated Unlicensed Driving and
Driving While Impaired.
D. As to the Bureau of Prisons Claim
The Petitioner's final contention is that the Bureau of Prisons
failed to follow the Court's recommendation that the Petitioner
be placed in a Shock Program and given drug and psychiatric
treatment. Constitutional and statutory claims that attack the
execution of a sentence by prison officials, rather than the
imposition or terms of sentence, are not cognizable in section
2255. However, those type of claims may be cognizable in federal
prisoner habeas corpus proceedings under 28 U.S.C. § 2241.
Section 2241 petitions are generally reserved for challenges to
"the execution of a federal prisoner's sentence." Roccisano v.
Menifee, 293 F.3d 51, 57 (2d Cir. 2002). The execution referred
to includes matters such as the administration of parole,
computation of the sentence, transfers between prisons, and
conditions of detention. See Jiminian v. Nash, 245 F.3d 144,
146 (2d Cir. 2001); Chambers v. United States, 106 F.3d 472,
474-75 (2d Cir. 1997). Here, the Petitioner's third ground for
relief attacks the execution of the sentence and not its
legality. As such, a petition pursuant to Section 2241 is the
proper vehicle. See Hernandez v. United States, 2005 U.S.
Dist. LEXIS 6587, at *2-3 (S.D.N.Y. 2005). Under section 2241, Federal district courts are granted limited
jurisdiction to issue writs only "within their respective
jurisdictions." 28 U.S.C. § 2241; see also Rumsfeld v.
Padilla, 124 S. Ct. 2711, 2724, 159 L. Ed. 2d 513 (2004). At the
time this petition was filed, Rickenbacker was confined to the
Federal Correctional Institution in Danbury, Connecticut. This
Court does not have jurisdiction to issue a writ to custodians of
prisoners in Connecticut. Thus, the Court lacks jurisdiction over
the Petitioner's third ground for relief.
However, even assuming that this Court did have jurisdiction,
it is settled law that it is within the discretion of the Bureau
of Prisons, and not the court, as to whether a prisoner is
admitted to the programs that the Petitioner mentions. See
Lasorsa v. Spears, 2 F. Supp. 2d 550, 554, aff'd, Lasorsa v.
Menifii, 182 F.3d 900 (2d Cir. 1999). Accordingly, the
Petitioner's third ground for relief is dismissed.
For the reasons stated above, Rickenbacker's motion to vacate,
set aside, or correct her sentence pursuant to 28 U.S.C. § 2255
is DENIED. Pursuant to Rule 22(b) of the Federal Rules of
Appellate Procedure and 28 U.S.C. § 2253(c)(2), a certificate of
appealability is DENIED, as the Petitioner fails to make a
substantial showing of a denial of a constitutional right.
Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029,
1039, 154 L. Ed.2d 931 (2003); Lucidore v. New York State Div.
of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Clerk of the Court is directed to close this case.
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