The opinion of the court was delivered by: SIDNEY STEIN, District Judge
Roy Moody, proceeding pro se, brings this petition pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
Moody asserts three grounds in support of his petition. He first
claims that his counsel, Sanford N. Talkin, Esq., was ineffective
because (1) he did not object pursuant to Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) to
certain sentencing enhancements used to calculate Moody's
sentence; (2) he did not object to a purported contradiction in
the Presentence Report prepared by the Probation Department; and
(3) he did not object to venue within the Southern District of
New York. Moody claims next that his sentence is unconstitutional
in light of Apprendi and United States v. Booker,
___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Last, he claims that
the purported contradiction in the Presentence Report ("PSR")
rendered the "sentencing process unreliable. . . ." (Pet.'s Mem.
of Law dated Oct. 4, 2004 at 3).
As set forth more fully below, Moody's petition is denied
because Moody's counsel was not ineffective; Moody waived his
Apprendi objection and even if he had not waived the objection,
it is meritless; Booker does not apply retroactively on
collateral review; he waived his objection to the claimed contradiction in the PSR, and even if he
had preserved it, the purported contradiction did not undermine
the sentencing process.
In June of 2001 the government filed a six count indictment
against Moody, charging him with two counts of conspiracy to
distribute 50 or more grams of crack cocaine pursuant to
21 U.S.C. §§ 841(b)(1)(A), 846, and four counts of using, carrying,
and possessing a firearm in connection with a drug trafficking
crime pursuant to 18 U.S.C. 924(c). (See Indictment No. S19 00
Cr. 671 (JSM)).
Specifically, count one charged Moody with participating in a
conspiracy to distribute 50 or more grams of crack cocaine within
1,000 feet of a public school and also to distribute heroin.
Counts two and three charged Moody with using, carrying, and
possessing a firearm in connection with the conspiracy alleged in
count one. Count four charged Moody with participating in a
conspiracy to distribute 50 or more grams of crack cocaine in New
York and North Carolina; counts five and six charged Moody with
using, carrying, and possessing a firearm in connection with the
conspiracy alleged in count four. (Id.).
In August of 2001 the court severed counts one, two, and three,
and the parties proceeded to trial on counts four, five and six.
(See Tr. dated Aug. 24, 2001). After the evidence closed the
court dismissed count five pursuant to Fed.R.Crim.P. 29. (See
Tr. dated Sept. 24, 2001 at 891:3-7). The jury acquitted Moody of
count six but convicted him of count four, which carried a
mandatory minimum sentence of 10 years' imprisonment and a
maximum sentence of life imprisonment. (See Amended Judgment in
a Criminal Case dated Sept. 13, 2002; 21 U.S.C. § 841(b)(1)(A)). In July of 2002, Judge John S. Martin, Jr., who presided over
the trial, dismissed the previously severed counts of the
indictment and sentenced Moody for his conviction on count four.
In calculating Moody's sentence, Judge Martin employed the
then-mandatory U.S. Sentencing Guidelines. Pursuant to the
guidelines, Judge Martin found by a preponderance of the evidence
three facts that adjusted Moody's sentencing range upward.
Specifically, Judge Martin found that "more than 1.5 kilograms
[of crack cocaine] were involved in this conspiracy"; that Moody
used a gun "in furtherance of the narcotics conspiracy"; and that
Moody had obstructed justice. (Tr. dated July 9, 2002 at 13:9-16;
24:10-15; 32:8-15, Ex. A to Letter of Daniel M. Gitner to the
Court dated Apr. 19, 2005). With those enhancements established,
Moody's applicable guideline range was 360 months' imprisonment
to life. (Tr. dated July 23, 2002 at 2:2-6, Ex. B to Letter of
Daniel M. Gitner to the Court dated Apr. 19, 2005).
Although Moody's counsel argued at length against the factual
and legal bases for the enhancements, (Tr. dated July 9, 2002 at
8:20-33:11, Ex. A to Letter of Daniel M. Gitner to the Court
dated Apr. 19, 2005), he did not object to the constitutionality
of the sentencing procedure as violative of the principles
established in Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Judge Martin sentenced Moody to 540
months' imprisonment to run concurrently with a New York state
court sentence that Moody serve 15 years' to life imprisonment
for murder. (Tr. dated July 23, 2002 at 16:7-11, Ex. B to Letter
of Daniel M. Gitner to the Court dated Apr. 19, 2005).
Moody appealed his conviction and sentence and asserted four
grounds: (1) that the court erroneously admitted irrelevant and
prejudicial evidence; (2) that the court erroneously denied him a
downward adjustment in his offense level due to his allegedly
minor role in the conspiracy; (3) that the court erroneously
applied the obstruction of justice enhancement to him; and (4) that the court erroneously attributed 1.5 kilograms of
crack cocaine to him. See United States v. McFadden,
70 Fed.Appx. 31, 33 (2d Cir. 2003) (unpublished summary order).
However, Moody did not assert that his sentence violated the
principles established in Apprendi or that the purported
inconsistency in the PSR rendered the sentencing process
unreliable. The United States Court of Appeals for the Second
Circuit affirmed the district court's sentence in a summary
order, id., and Moody timely filed this section 2255 petition.
II. The Legal Standards Applicable to Moody's Petition
"A motion under § 2255 is not a substitute for an appeal."
United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). "A
party who fails to raise an issue on direct appeal and
subsequently endeavors to litigate the issue via a § 2255
petition most show that there was cause for failing to raise the
issue, and prejudice resulting therefrom." Id. (quoting United
States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995)) (internal
quotation marks and citations omitted); see also Bousley v.
United States, 523 U.S. 614, 622, 118 S.Ct. 1604,
140 L.Ed.2d 828 (1998). Alternatively, a petitioner may raise an issue for
the first time on collateral review "if he can establish that the
constitutional error . . . has probably resulted in the
conviction of one who is actually innocent." Bousley,
523 U.S. at 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (internal quotation marks
and citations omitted).
Cause "under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be
attributed to him. . . ." Coleman v. Thompson, 501 U.S. 722,
753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "Attorney ignorance
or inadvertence" does not constitute cause because the attorney
is the petitioner's agent with respect to the litigation. Id.
However, attorney error that rises to the level of ineffective
assistance of counsel does constitute cause because it is an
independent violation of the Sixth ...