United States District Court, S.D. New York
August 29, 2005.
LEON BRADLEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: HAROLD BAER, Jr., District Judge[fn*] [fn*] Paul-Philippe L. Reyes, a summer 2005 intern in my Chambers, and currently a second year law student at Brooklyn Law School, provided substantial assistance in the research and drafting of this Opinion.
OPINION & ORDER
On November 17, 2003, Petitioner, Leon Bradley ("Petitioner" or
"Bradley"), petitioned this Court for a writ of habeas corpus
to vacate, set aside, or correct his sentence of 108 months,
pursuant to 28 U.S.C. § 2255.*fn1 (Dckt. 1.) Petitioner
claims: (1) denial of his right to appeal, (2) ineffective
assistance of counsel, (3) lack of subject matter jurisdiction,
(4) unconstitutionality of 21 U.S.C. § 846 and, and (5)
unconstitutionality of the Sentencing Guidelines. For the
foregoing reasons, Bradley's petition for a writ of habeas
corpus is DENIED.
The facts in this case are undisputed and set forth by
Magistrate Judge Gabriel W. Gorenstein in his articulate May 28,
2004 Report and Recommendation (the "R&R"). See United States
v. Bradley, No 02 Cr. 104, 2004 WL 1179313 (S.D.N.Y. May 28,
2004). They will not be repeated here but for those that bear on
Petitioner's specific objections.
On February 7, 2002, Petitioner, along with several
codefendants, was charged in a two count Superseding Indictment
with conspiracy to distribute over one kilogram of heroin and
over five kilograms of cocaine in violation of 21 U.S.C. § 846.
(Ind. at ¶¶ 1-3.) The Indictment alleged, inter alia, that
Petitioner, along with his coconspirators, arranged for the
transportation of heroin from the Bronx, New York, to Baltimore,
Maryland, and for Bradley to return with the proceeds from a
previous narcotics purchase. (Ind. at ¶¶ 4a-b.) On June 28, 2002, pursuant to a plea agreement (the "Plea
Agreement," dated June 28, 2002), Petitioner pled guilty to one
count of conspiracy to distribute narcotics before Magistrate
Judge Debra C. Freeman. (Plea Tr. 6:14-19.) (Crim. Dckt. 64.)
According to the terms of the Plea Agreement, Petitioner would
plead guilty and be sentenced in accordance with the Sentencing
Guidelines, subject to the permissible discretion of the
sentencing judge. (Plea Agreement, at ¶¶ 2-3.) In addition, the
Plea Agreement required Petitioner to abandon his right to
[D]efendant will neither appeal, nor otherwise
litigate under Title 28, United States Code, Sections
2255 and/or 2241, any sentence within or below the
Stipulated Guidelines Range set forth above (135 to
168 months). . . . This provision is binding on the
parties even if the Court employs a Guidelines
analysis different from that stipulated to herein.
(Plea Agreement, at ¶ 4.) In return, the Government agreed not to
object to Petitioner's application for safety-valve relief under
18 U.S.C. 3553(f). (Id.)
During sentencing, Petitioner consented to all the terms and
conditions of the Plea Agreement. (Plea Tr. 11:18-25; 12:1.)
Although he indicated that nobody pressured him to plead guilty,
he did say, "twenty-five years. That's pressure." (Plea Tr.
11:14.) When asked by the court, Petitioner stated that he
"freely" and "voluntarily" waived his right to plead not guilty
and proceed to trial. (Plea Tr. 9:23-25; 16:9-17.) Petitioner
also expressed satisfaction with the representation of his
attorney, Robert Krakow ("Krakow"), and relinquished, as stated
by the court, "the right to challenge [the] sentence both on
appeal to the Court of Appeals and also by any further
application to Judge Schwartz." (Plea Tr. 13:5-7.) Considering
both the Guidelines and Petitioner's application for safety-valve
relief, Judge Schwartz sentenced Petitioner to a prison term of
108 months. (Crim. Dckt. 91.) Petitioner did not appeal his
On November 17, 2003, Petitioner filed the instant petition for
a writ of habeas corpus. (Dckt. 1.) The matter was referred
to Magistrate Judge Gabriel W. Gorenstein on April 2, 2004 who,
on May 28, 2004, recommended that Petitioner's request for relief
be denied. Bradley, No. 02 Cr. 104, 2004 WL 1179313, at *1. On
April 24, 2005, Petitioner objected to the R&R in toto. (Obj.
to R&R, dated Apr. 24, 2005) (Dckt. 11.) II. STANDARD OF REVIEW
Pursuant to the Federal Rules of Civil Procedure, a district
court reviews de novo those portions of an R&R to which
Petitioner interposes an objection; otherwise, the court reviews
for clear error. 28 U.S.C. § 636(b)(1) (2005); see also
Fed.R.Civ.P. 72(b). Here, Petitioner objects to the R&R in its
entirety and, therefore, I review his claims de novo.
In accordance with 28 U.S.C. § 2255, to prevail on a petition
for a writ of habeas corpus, a petitioner must demonstrate:
[T]he sentence was imposed in violation of the
Constitution or laws of the Untied 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 other wise subject
to collateral attack.
28 U.S.C. § 2255 (2005). A petition for a writ of habeas
corpus is a collateral action and, therefore, claims not raised
on direct review are procedurally barred unless they present
constitutional or jurisdictional claims, or result in "a complete
miscarriage of justice." Johnson v. United States,
313 F.3d 815
, 817 (2d Cir. 2002); see also Graziano v. United
States, 83 F.3d 587, 590 (2d Cir. 1996); Campo v. United
States, 968 F.2d 187
, 190 (2d Cir. 1992) ("[F]ailure to raise a
claim on direct appeal is itself a default of normal appellate
procedure, which a defendant can overcome only by showing cause
and prejudice."). A petitioner who attempts to raise a claim for
the first time on collateral review must demonstrate both (1)
"cause" excusing his procedural default, and (2) "actual
prejudice" resulting from the errors. See Reed v. Farley,
512 U.S. 339, 354 (1994) (citing to Wainwright v. Sykes,
433 U.S. 72
, 84, 87 (1977)). "Cause" requires the petitioner to
demonstrate that he was prevented from filing a direct appeal.
See Sanchez v. United States, No. 04 Civ. 1827, 2005 WL
1005159, at *2 (S.D.N.Y. Apr. 30, 2005). "Actual prejudice"
requires "a petitioner to demonstrate actual innocence on the
existing claim and an inability to effectively raise their claim
of innocence at an earlier time." Id., 2005 WL 1005159, at *2
(internal citation omitted).
Petitioner presents five claims in the instant petition for
habeas corpus: (1) denial of his right to appeal, (2)
ineffective assistance of counsel, (3) lack of subject matter
jurisdiction, (4) unconstitutionality of 21 U.S.C. § 846 and
related statutes, and (5) unconstitutionality of the Sentencing
Guidelines. 1. Right to Appeal
The threshold issue in the instant petition is whether
Petitioner's waiver of right to appeal or otherwise file a
habeas corpus petition forecloses review of any or all of his
In general, a plea agreement is enforceable "only if done
voluntarily, knowingly, and intelligently, with sufficient
awareness of the relevant circumstances and likely consequences."
Bradshaw v. Stumpf, 545 U.S. ___, 2005 WL 1383730, at *5 (Jun.
13, 2005). A plea agreement is entered into "knowingly" if the
record clearly demonstrates that defendant fully comprehended the
consequences of the waiver. See United States v. Monzon,
359 F.3d 110, 116 (2d Cir. 2004); see also United States v.
Ready, 82 F.3d 551, 557 (2d Cir. 1996). A plea agreement is
"voluntary" if the defendant is neither coerced into signing by
threats or violence, nor induced into signing by fraud or
improper influence. See Brady v. United States, 397 U.S. 742,
753 (1970). Provided that the plea agreement, and, in particular,
the waiver, is entered into "knowingly" and "voluntarily" a
defendant may not file an appeal and, "escape the fairly
bargained-for-consequences of [his] agreement." Monzon,
359 F.3d at 117; see Bradshaw, 545 U.S. ___, 2005 WL 1383730, at
*5. A court may ascertain that a defendant "knowingly" and
"voluntarily" entered into the plea agreement from, among other
things, the defendant's statements at allocution. See United
States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001).
Here, Petitioner accepted all the terms of the Plea Agreement
and swore to as much at his sentencing:
Q: I have a copy of this plea agreement between you
and the government dated June 28, 2002. Did you sign
this plea agreement?
Q: Before you signed it, did you discuss it with your
A: Yes, I did.
(Plea Tr. 11:18-12:1.)
Accordingly, as Petitioner entered into the Plea Agreement
"knowingly," "voluntarily," and "intelligently," the Plea
Agreement is presumed to be valid, and the waiver of right to
appeal bars the instant petition for a writ of habeas corpus. 2. Ineffective Assistance of Counsel
A limited exception to the bar imposed by the waiver of right
to appeal is Petitioner's ineffective assistance of counsel
claim. Ineffective assistance of counsel claims may be brought at
any time, even if after the time to raise the issue on direct
appeal has expired. See Massaro v. United States,
538 U.S. 500, 509 (2003).
To prevail on an ineffective assistance of counsel claim, a
petitioner must overcome a presumption of effective
representation and demonstrate "(a) that counsel's representation
fell below an objective standard or reasonableness under
prevailing professional norms, and (b) that the deficient
performance prejudiced the defendant." Henry v. Poole,
409 F.3d 48, 14 (2d Cir. 2005 (citing to Strickland,
466 U.S. at 687-88); Rompilla v. Beard, 545 U.S. ___, 2005 WL 1421390, at
*5 (Jun. 20, 2005) ("Ineffective assistance under Strickland is
deficient performance by counsel resulting in prejudice with
performance being measured against an objective standard of
reasonableness under prevailing professional norms."). In
essence, the Petitioner must prove that "but for" Defendant
counsel's unprofessional conduct there is a "reasonable
probability" that the outcome of the proceedings would have been
different. See e.g., Rompilla, 545 U.S. ___, 2005 WL
1421390, at *10 ("[T]here is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different.").
Construing the petition liberally,*fn2 Petitioner argues
that his counsel was ineffective when counsel failed to inform
him prior to his plea that (1) 21 U.S.C. § 846, the statute under
which Petitioner was charged, was unconstitutional, and that (2)
the Sentencing Guidelines would be rendered unconstitutional.
According to Petitioner, these two deficiencies led him to enter
a plea bargain that he otherwise would have rejected.
First, Petitioner claims that "his counsel was ineffective for
not disclosing that his charge was unconstitutional," and that
"[i]f not for the conduct of petitioner's counsel, the petitioner
would have pled innocent." (Dckt. 1.) Here, Petitioner's claim
that 21 U.S.C. § 846 was unconstitutional is belied by the fact
that numerous courts have upheld the constitutionality of the
statute.*fn3 Accordingly, Petitioner's claim that Defendant
counsel was ineffective for failing to claim 21 U.S.C. § 846
unconstitutional is inapposite. Second, Petitioner claims ineffective assistance because
counsel failed to indicate that the Sentencing Guidelines would
be ruled unconstitutional, and argued that this Court should
retroactively apply the Supreme Court's holdings in United
States v. Booker, 125 S. Ct. 738 (2005), Blakely v.
Washington, 124 S. Ct. 2531 (2004), and Crawford v.
Washington, 541 U.S. 36 (2004). (Dckt. 11.) In particular,
Petitioner claims "that the Justices who rule on
constitutionality show that the Constitution never changes and
that the judicial function is limited to what the law is,
rather than decreeing what it is today changed to, or what it
will be tomorrow." (Id.)
The Second Circuit has repeatedly explained that the holdings
of Blakely and Booker do not apply retroactively on
We hold that Booker is not retroactive: it does not
apply to cases on collateral review where the
defendant's conviction was final as of January 12,
2005, the date Booker was issued.
Guzman v. United States, 404 F.3d 139
, 2005 WL 803214, at *1
(2d Cir. 2005) ("This court has held that Booker does not apply
retroactively to cases on collateral review."); see also
Green v. United States, 397 F.3d 101
, 103 (2d Cir. 2005). This
complies with the general notion that a new rule applies only
where the disposition of a case is not final. Teague v. Lane,
489 U.S. 288
, 316 (1989).
Here, since Petitioner's case became final upon his plea, his
petition for a writ of habeas corpus constitutes a collateral
action and, therefore, does not warrant application of the rules
articulated Booker, Blakely, or Crawford. In addition,
Petitioner confirmed that he discussed the implications of the
Sentencing Guidelines with his attorney, including the
possibility that Petitioner's sentence might not be tied to the
Sentencing Guidelines at all. (Plea Tr. 10:8-22.)
Accordingly, Petitioner's claim for ineffective assistance of
counsel is DENIED.
For the aforementioned reasons, Bradley's petition for a writ
of habeas corpus is DENIED. The Clerk of the Court is
instructed to close this case and any pending motions and ORDERED
to remove this case from my docket.
IT IS SO ORDERED.
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