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May 10, 2005.

MAXIMO GENAO, Petitioner,

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Maximo Genao, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Genao seeks to withdraw his guilty plea on the ground that he received ineffective assistance of counsel. For the following reasons, petitioner's motion is dismissed.

  I. FACTS*fn1

  A. Genao's Arrest and Guilty Plea

  Genao was arrested on June 1, 1992, by special agents of the Drug Enforcement Administration ("DEA"). He was later indicted, along with twenty-six co-defendants, and charged with conspiring to distribute large quantities of heroin, powder cocaine, and crack cocaine. Following his indictment, Genao began cooperating with the Government. He attended numerous proffer sessions with representatives of the DEA and the United States Attorney's Office, and provided incriminating information regarding many of his co-conspirators. As a result of the information provided during these proffer sessions, Genao was offered a Cooperation Agreement with the Government, under which he agreed to provide information and testimony in return for a Section 5K1.1 motion by the Government, which would permit the sentencing judge to sentence Genao below both the Guidelines range and the required statutory minimum term of imprisonment.

  On October 2, 1992, Genao pled guilty pursuant to the terms of the Cooperation Agreement to a one-count Superseding Information charging him with unlawfully distributing in excess of one and one-half kilograms of crack cocaine. See Transcript of Plea Allocution, Ex. B to the 4/2/04 Letter from AUSA Nicholas S. Goldin ("Goldin Letter"). In his Cooperation Agreement, Genao acknowledged that he was an "organizer and leader of criminal activity involving five or more participants, in connection with [the charged] crack distribution." See Cooperation Agreement, Ex. A to Goldin Letter. Genao initially remained in custody following his guilty plea. B. Genao's Cooperation and Subsequent Flight

  In early February 1993, Genao testified as a Government witness at the trial of two of his co-conspirators. One of these defendants pled guilty in the midst of trial, while the other defendant was convicted after trial. Genao was thereafter released on bail for the purpose of assisting DEA agents in identifying and apprehending additional co-conspirators. After being released on bail, however, Genao failed to offer any meaningful assistance to the Government. Instead, he jumped bail and absconded to his native country, the Dominican Republic.*fn2 On July 16, 1993, Judge John S. Martin issued a bench warrant for Genao's arrest. More than six years later, Genao was found in the Dominican Republic and arrested. He was extradited to the United States, and arrived in Florida on February 5, 2000. Genao then was transferred to the Southern District of New York.

  C. Genao's Sentencing

  The United States Probation Department ("Probation") prepared a Presentence Investigation Report ("PSR") in connection with Genao's sentencing. Probation set Genao's base offense level at thirty-eight pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1, based on a drug quantity of more than one and one-half kilograms of crack cocaine, i.e., the amount stipulated to in the Cooperation Agreement. Probation also recommended a four-level organizer or leader enhancement, pursuant to U.S.S.G. § 3B1.1(a). Because Genao had jumped bail and become a fugitive from justice, Probation further recommended that Genao receive a two-level enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, application note 4(e). Accordingly, the PSR calculated Genao's total offense level at forty-four which, given Genao's Criminal History Category of I, yielded a Guidelines range of life imprisonment. However, Probation suggested that the Court downwardly depart by three levels, pursuant to U.S.S.G. § 5K2.0, based on Genao's acceptance of responsibility. Probation recommended that Genao be sentenced at the low end of the resulting sentencing range of 324 to 405 months.

  Prior to his sentencing, Genao moved to compel the Government to file a U.S.S.G. § 5K1.1 motion, claiming that the Cooperation Agreement obligated the Government to do so despite Genao's flight. Genao also submitted a Sentencing Memorandum, in which he requested that the court downwardly depart on at least six separate grounds. At his sentencing, which was held on August 3, 2001, the court denied the motion to compel the Government to file a Section 5K1.1 motion, stating that "[t]his is a clear case in which the defendant breached his agreement with the government, [and] forfeited any right he had [under the agreement] by becoming a fugitive." See Transcript of Sentencing Hearing, Ex. C to the Goldin Letter at 6. Judge Martin then considered each of the downward departure motions raised by Genao before concluding that under the facts of this case, no departure was appropriate. See id. at 22. Judge Martin awarded Genao a three-point reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. See id. at 25. This three-point reduction reduced Genao's offense level to 41, with a resulting sentencing range of 324 to 405 months. See id. at 27. The Court then sentenced Genao to a term of 324 months imprisonment. See id. at 28. The Court also imposed a five-year period of supervised release, and the mandatory $100 special assessment. See id. Defendant appealed this sentence on August 20, 2001. The Second Circuit affirmed the conviction and sentence in a summary order. See United States v. Genao, No. 01-1451, 2002 WL 1583906 (2d Cir. July 18, 2002) (unpublished).

  D. Petitioner's Allegations of Ineffectiveness

  In his motion, petitioner included an "Affidavit of Facts" wherein he stated that he instructed his attorney, Edward Sapone, to withdraw his guilty plea in response to the Government's decision to nullify the Cooperation Agreement because of petitioner's bail jumping. According to petitioner,
[c]ounsel came back and informed me that he had secured a new deal with the government. That I should continue to provide the government with more information and that the government will move for downward departure below my 10 year? mandatory minimum. That if I withdrew my plea, I am facing a mandatory sentence of life and counsel will no longer represent Petitioner. That Petitioner [will] have to represent himself.
Petitioner's Affidavit of Facts ¶ 6.


  A. Section 2255 ...

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