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.
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.
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
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.
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)).
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.
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
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 ...