The opinion of the court was delivered by: SIDNEY STEIN, District Judge
Jonathan Cedeno, proceeding pro se, brings this petition
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. Cedeno asserts two grounds in support of his petition.
He first claims that his sentence is unconstitutional in light of
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004) and United States v. Booker, ___ U.S. ___,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He next claims that he
received ineffective assistance of counsel.
As set forth more fully below, Cedeno's petition is denied
because he waived his right to collaterally attack his sentence;
Blakely and Booker do not apply retroactively on collateral
review; and petitioner did not receive ineffective assistance of
Cedeno was charged in a two-count indictment with violations of
the federal narcotic laws. Specifically, Count One charged Cedeno
with conspiracy to distribute and possess with intent to
distribute "3,4 methylenedioxy-methamphetamine," commonly know as
"ecstasy," in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
846. (Indictment No. S2 Cr. 1359). Count Two charged Cedeno with
attempting to distribute ecstasy and attempting to possess ecstasy with intent to
distribute it, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C).
In the course of that litigation, Cedeno's counsel filed a
motion to suppress physical evidence recovered and statements
made at the time of his arrest, which the Court denied. (Tr.
dated Feb. 13, 2003 at 94:7-22). Thereafter, the government filed
a prior felony information pursuant to 21 U.S.C. § 851, setting
forth that on two prior occasions Cedeno had been convicted of a
felony narcotics offense in Rhode Island, namely, possession with
intent to distribute heroin and delivery of cocaine. (Prior
Felony Information dated May 20, 2003). The prior felony
information subjected Cedeno upon conviction to the enhanced
penalty provision set forth at 21 U.S.C. § 841(b)(1)(C). That
provision, in turn, establishes a 30-year maximum sentence for
each of the offenses with which Cedeno was charged.
21 U.S.C. § 841(b)(1)(C) (1999).
Cedeno subsequently entered into a plea agreement with the
government and pled guilty to both counts of the indictment.
(Plea Agreement dated July 24, 2003, Ex. A to Govt.'s Mem. in
Opp'n to Pet. of Jonathan Cedeno; Tr. dated July 28, 2003 at
20:11-21:2). The plea agreement set forth that "in light of the
filing of a prior felony information pursuant to 21 U.S.C. § 851,
Counts One and Two each carry a maximum sentence of thirty years'
imprisonment. . . ." (Plea Agreement dated July 24, 2003 at 1,
Ex. A to Govt.'s Mem. in Opp'n to Pet. of Jonathan Cedeno).
In the agreement, Cedeno also stipulated to a guideline
sentencing range of between 188 and 235 months' imprisonment and
agreed to waive his right to seek a downward departure or
adjustment from that sentencing range. (Id. at 3). The
agreement also set forth that notwithstanding the stipulated
guideline range, "the sentence to be imposed upon the defendant is determined solely by the Court."
(Id. at 4). Finally, Cedeno agreed that he would not "file a
direct appeal, nor litigate under Title 28, United States Code,
Section 2255 . . . any sentence within or below the Stipulated
Sentencing Guidelines Range of 188 to 235 months." (Id. at 4).
At Cedeno's plea allocution, the Court asked Cedeno whether he
had read the plea agreement before he signed it, and he answered
"Yes, I did." (Tr. dated July 28, 2003 at 15:2-4). The Court also
asked Cedeno whether he fully understood the agreement before he
signed it, to which he again answered, "Yes, I did." (Id. at
15:8-10). In addition, the Court asked Cedeno whether the
agreement contained every understanding with respect to his plea
and sentence, and he answered, "Yes." (Id. at 15:11-21).
When the Court asked Cedeno whether he understood that he had
"waived [his] right to file an appeal or to collaterally attack
[his] sentence," if the Court sentenced him within or below the
stipulated guideline range of 188 to 235 months, Cedeno answered,
"Yes, sir." (Id. at 16:1-5). Cedeno gave the identical answer
when the Court asked him whether he understood that the Court had
the power to impose a sentence upon him of up to 60 years. (Id.
at 12:4-7). Finally, the Court asked Cedeno whether he understood
that "if Mr. Warburgh [Cedeno's counsel] . . . has told you what
your sentence is going to be, or even if you have an expectation
as to what your sentence is going to be, they all and you could
be wrong? Do you understand that?" To that question, Cedeno
answered, "Yes." (Id. at 13:25-14:6).
Cedeno was sentenced principally to 188 month's imprisonment
the bottom of the guideline sentencing range to which he had
stipulated. (Tr. dated Feb. 5, 2004 at 9:21-10:3). Petitioner
asserts that following his sentencing, he asked his attorney,
Paul E. Warburgh, Jr., to file an appeal on his behalf but that Warburgh
never filed a notice of appeal because Warburgh said an appeal
was not in Cedeno's best interests.
In response to Cedeno's petition, the Court directed Warburgh
to "submit an affidavit . . . addressing (1) whether he advised
petitioner that he would receive a sentence of not more than ten
years if he pled guilty; (2) the basis for not arguing to the
Court at sentencing that petitioner was entitled to treatment as
a minor participant in the crime of which he was convicted; and
(3) whether he consulted with petitioner about filing an appeal
on petitioner's behalf, and the basis for not filing a notice of
appeal on petitioner's behalf." (Order dated Aug. 10, 2005). The
Court allowed petitioner time to reply. (Id.).
In Warburgh's affidavit, he swears specifically that Cedeno did
not ask him to file an appeal. (Affidavit of Paul E. Warburgh,
Jr. dated Aug. 25, 2005 at 2). Instead, Cedeno merely "inquired
about an appeal" and Warburgh "informed him that he had waived
his right to do so under the terms of the plea agreement.
Additionally, there were actually no appealable issues." (Id.).
Warburgh maintains that Cedeno "agreed with [him] and followed
[his] advice." ...