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BRIDGES v. U.S.

August 1, 2005.

HAROLD BRIDGES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: HAROLD BAER, Jr., District Judge[fn*] [fn*] Alissa Hazan, a summer 2005 intern in my Chambers, and currently a second year law student at New York University School of Law, provided substantial assistance in the research and drafting of this Opinion.

OPINION & ORDER

On April 9, 2004, Harold Bridges ("Petitioner"), petitioned this Court for a writ of habeas corpus to vacate his May 11, 2001 sentence of life imprisonment, pursuant to 28 U.S.C. § 2255. (Dckt. 39.) Petitioner claims: (1) ineffective assistance of counsel, (2) abuse of discretion, (3) denial of right to allocution, and (4) improper use of prior felony convictions. For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

I. BACKGROUND

  On March 15, 2000, the Government filed a Superseding Indictment, which charged Petitioner with conspiracy to distribute, and possess with the intent to distribute, "one kilogram and more of a mixture and substance containing a detectable amount of phencyclidine ("PCP"), in violation of Sections 812, 841(a) and 841(b)(1)(A) of Title 21, United States Code." (Superseding Ind. at ¶ 2) (Dckt. 5.)

  In April 2000, Petitioner retained California-based attorney Vincent Oliver ("Oliver"). (Dckt. 9.) However, on June 26, 2000, the Government moved to disqualify Oliver due to a conflict of interest. (Dckt. 19.) The Government maintained that a conflict was present because one of Oliver's former clients, an alleged co-conspirator to Petitioner's crimes, compensated Oliver for his representation of Petitioner. (Trial Tr. at 2:10-6:5). On July 28, 2000, the Court disqualified Oliver and appointed new counsel, Jeremy Schneider ("Schneider"). (Dckt. 19; 20.) On August 30, 2000, the Government filed a prior felony information against Petitioner pursuant to Title 21 U.S.C. § 851. (Dckt. 26.) A second prior felony information was filed on September 12, 2000. (Dckt. 31.) Both prior convictions were for narcotics felonies.

  On September 18, 2000, trial commenced in the United States District Court for the Southern District of New York. (Dckt. 31.) Following a seven-day trial, Petitioner was convicted of all charges (Dckt. 32), and was subsequently sentenced on May 11, 2001. (Dckt. 39.) Given the two prior felony informations filed by the Government, as well as the jury's finding as to the PCP weight, the Court imposed the mandatory minimum sentence of life imprisonment upon Petitioner. Defendant appealed to the United States Court of Appeals for the Second Circuit. See Bridges, 61 Fed. Appx. at 736.

  On appeal, Mr. Ollen raised three arguments: (1) improper admission of evidence regarding the allowance of testimony that pertained to the discovery of a gun in Petitioner's house upon his arrest; (2) inaccurate finding of fact regarding the quantity of PCP, which ultimately lead to an improper sentence; and (3) Government violation of discovery obligations under the Federal Rules of Criminal Procedure by turning over exculpatory evidence after the commencement of the trial. Id. at 737-39. The appellate court affirmed this Court's conviction and life sentence against Petitioner on March 18, 2003. Id. at 739.

  II. STANDARD OF REVIEW

  Pursuant to the Antiterrorism and Effective Death Penalty Act, to prevail on a petition for a writ of habeas corpus, the petitioner must demonstrate the:
[R]ight to be released upon the ground that the sentence 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 a collateral action, a petition for a writ of habeas corpus is not a substitute for direct appeal, and a petitioner who "fails properly to raise his claim on direct review is barred from obtaining collateral relief under Section 2255 unless he establishes cause for the waiver and shows actual prejudice resulting from the alleged error." Velasquez v. United States, 24 F. Supp. 2d 320, 321 (S.D.N.Y. 1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)) (emphasis added); see also St. Helen v. Senkowski, 374 F.3d 181, 184 (2d Cir. 2004). There is an exception to this procedural default rule. A petitioner's claim of ineffective assistance of counsel is not procedurally barred, regardless of whether or not the petitioner could have raised the claim on direct appeal. See Olaya-Rodriguez v. United States, No. 02 Civ. 4153, 2003 WL 21219854, at *2 (S.D.N.Y. May 23, 2003) (citing Massaro v. United States, 538 U.S. 500, 504 (2003)).

  III. DISCUSSION

  Petitioner presents four arguments in support of his petition for a writ of habeas corpus: (1) ineffective assistance of counsel, (2) abuse of discretion, (3) denial of right to allocution, and (4) improper use of prior felony convictions.

  A. Procedural Bar

  Petitioner failed to raise any of his four claims on direct appeal, and consequently, with the exception of the claim for ineffective assistance of counsel, his claims are procedurally barred unless he can establish "cause" and "prejudice." Olaya-Rodriguez, 2003 WL 21219854, at *2.

  To satisfy the "cause" requirement, a petitioner must demonstrate that he was prevented from filing a direct appeal. Sanchez v. United States, No. 01 Cr. 908, 2005 WL 1005159, at *2 (S.D.N.Y. April 30, 2005). Petitioner must prove that "some objective factor external to the defense impeded counsel's efforts to raise the claim in the prior petition — factors such as interference by officials or the unavailability of relevant facts." Rodriguez v. Mitchell, 252 F.3d 191, 203 (2d Cir. 2001) (internal quotation marks omitted). However, "cause" will "usually [be] outside the record and [possibly] exclusively within the petitioner's knowledge, and thus will only come to light if properly asserted by the petitioner." Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000) (internal quotation marks omitted).*fn1

  Here, Petitioner fails to present any cause, with the exception of ineffective assistance of counsel, for the absence of these claims on appeal. See Dimas-Lopez v. United States, No. 00 Cr. 153, No. 01 Civ. 7170, 2005 WL 1241890, at *2 (S.D.N.Y. May 25, 2005) (finding that a petitioner's habeas petition was procedurally barred because he provided no reason for failing to raise issues previously). As demonstrated in the discussion below, Petitioner's ineffective assistance of counsel argument lacks merit, and therefore, cannot satisfy valid cause. Maldonado v. Greiner, No. 01 Civ. 0799, 2003 WL 22435713 at *26 (S.D.N.Y. Oct. 28, 2003) ("Because his ineffective appellate counsel claims are meritless, . . . they may not serve as `cause' for this procedural default of [petitioner's] . . . claims."). Given that Petitioner has failed to provide justification for failure to raise three of his claims on appeal, and there is no evidence of any external factors which impeded his opportunity to raise these claims on appeal, the claims are procedurally barred. Rodriguez, 252 F.3d at 203.*fn2

  Accordingly, Petitioner's claims for (1) abuse of discretion, (2) denial of right to allocution, and (3) improper use of ...


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