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September 12, 2005.

ROBERT PEACE, Petitioner,

The opinion of the court was delivered by: SIDNEY STEIN, District Judge



Robert Peace, proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Peace asserts two grounds in support of his petition. He first claims that his sentence is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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 in connection with his trial and appeal.

  As set forth more fully below, Peace's petition is denied because he waived his Apprendi objection; Blakely and Booker do not apply retroactively on collateral review; and petitioner did not receive ineffective assistance of counsel.

  I. Facts

  On June 17, 1998 a grand jury indicted Peace on one count of conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine and more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), 846. (Indictment No. S4 97 Cr. 1140, Ex. A to Govt.'s Mem. in Response to Petition of Robert Peace). The government indicted ten of Peace's co-conspirators in connection with the same conspiracy. United States v. Petteway, 79 Fed.Appx. 453, 454 (2d Cir. 2003). Six of those co-conspirators pled guilty before trial, one was a fugitive, and three other co-conspirators along with Peace were tried together. Id.

  One week before the trial of Peace and his three co-conspirators commenced, the government filed a prior felony information pursuant to 21 U.S.C. § 851(a)(1) setting forth that Peace previously was "convicted of a violation of North Carolina state law relating to narcotic drugs, namely, possession with intent to sell and deliver cocaine. . . ." (Prior Felony Information dated Apr. 29, 1999, Ex. J to Petition of Robert Peace). The prior felony information subjected Peace upon conviction to the enhanced penalty provision set forth at 21 U.S.C. § 841(b)(1)(A). That provision, in turn, establishes a 20-year mandatory minimum sentence for offenses involving 50 grams or more of cocaine base committed by a person with a prior "felony drug offense. . . ." 21 U.S.C. § 841(b)(1)(A) (1999).

  Peace's trial commenced on May 5, 1999 and three weeks later a jury convicted him of conspiracy with respect to cocaine base but acquitted him of conspiracy with respect to cocaine. (Tr. dated May 27, 1999 at 2255-2258). After Peace's conviction the Court granted Peace several adjournments of his sentencing in order to allow Peace to contest his prior felony conviction in the North Carolina state court. (See Letter to the Court from Barry M. Fallick, Esq. dated July 5, 2001). After Peace had exhausted to no avail his avenues for challenging his prior state court conviction, the Court sentenced him to the statutory mandatory minimum of 240 months' imprisonment. (Tr. dated Sept. 5, 2002 at 14). Peace filed a timely notice of appeal and asserted a single ground challenging his conviction: that the Court had coerced the jury into finding him guilty because the Court twice encouraged the jury "to reach a unanimous verdict." Petteway, 79 Fed.Appx. at 454-55. Peace did not challenge his sentence on any ground. Id. In an unpublished summary order dated October 28, 2003, the Second Circuit affirmed Peace's conviction, id., and Peace then timely filed this petition pursuant to 28 U.S.C. § 2255.

  II. Discussion

  "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 Amendment and thus operates as an "external factor" that is "imputed to the State." Id. at 753-54 (internal quotation marks and citations omitted).

  To demonstrate ineffective assistance of counsel, petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688-94, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). First, he must show that his attorney's representation fell below an objective standard of "reasonableness under prevailing professional norms." Id. at 688. Second, he must show that there is a "reasonable probability" his sentence would have been different but for the attorney's error. Id. at 694.

  "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 698. The court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir. 2004) ...

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