United States District Court, S.D. New York
September 12, 2005.
ROBERT PEACE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
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.
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.
"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) (quoting Strickland, 466 U.S. at 689,
80 L.Ed.2d 674, 104 S.Ct. 2052).
A. Peace Waived Any Challenge to His Sentence Based Upon
Peace first asserts that his mandatory minimum sentence is
unconstitutional pursuant to Apprendi because the jury did not
find beyond a reasonable doubt the quantity of narcotics that
triggered the application of the twenty-year mandatory minimum
sentence that the Court imposed upon him. However, Peace waived
any argument based on Apprendi because he did not raise it on
appeal and he has failed to show cause for that omission.
With respect to cause, Peace claims that his appellate counsel,
Barry M. Fallick, Esq., was ineffective for failing to raise an
Apprendi argument on appeal. Peace asserts that he "requested"
that Fallick "raise the Apprendi doctrine on direct appeal, but
Mr. Fallick['s] judgment was that the Apprendi issue did not have
merit. . . ." (Petitioner's Reply dated Aug. 17, 2005 at 6).
Within the context of a criminal appeal, counsel is not
constitutionally obligated to "advance every nonfrivolous
argument that could be made. However, a petitioner may establish
constitutionally inadequate performance if he shows that counsel
omitted significant and obvious issues while pursuing issues that
were clearly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d
Cir. 1994) (internal citations omitted). While it is true that
the argument counsel pursued on appeal was not strong, see
United States v. Petteway, 79 Fed. Appx. 453 (2d Cir. 2003),
the Court cannot conclude that Peace's sentence at the time it
was imposed raised a significant and obvious Apprendi issue
that counsel omitted.
The United States Court of Appeals for the Second Circuit
recently held that, "Because mandatory minimums operate in tandem
with increased maximums in § 841(b)(1)(A) and (b)(1)(B) to
create sentencing ranges that raise the limit of the possible
federal sentence, drug quantity must be deemed an element for all
purposes relevant to the application of these increased ranges."
United States v. Gonzalez, ___ F.3d ___, No. 03 Cv. 1356, 2005
WL 2002275 at *14 (2d Cir. Aug. 22, 2005) (internal quotation
marks and citations omitted). Pursuant to Gonzalez, because
Peace received a mandatory minimum sentence of twenty years'
imprisonment based on drug quantity that was not found by the
jury beyond a reasonable doubt, an Apprendi violation occurred
notwithstanding that Peace was sentenced within the applicable
statutory maximum of 30 years' imprisonment.
However, at the time Peace filed his notice of appeal in
September of 2002, this principle was not yet established. See
United States v. Guevara, 298 F.3d 124 (2d Cir. 2001),
altering upon reconsideration United States v. Guevara,
277 F.3d 111 (2d Cir. 2001); see also Harris v. United States, 536 U.S. 545,
122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Moreover, two months after
Peace filed his appeal, the Second Circuit held that, "Facts that
compel the imposition of a mandatory minimum sentence, but not a
sentence in excess of the otherwise applicable maximum, need not
be charged in the indictment or determined by a jury beyond a
reasonable doubt." United States v. Luciano, 311 F.3d 146, 153
(2d Cir. 2002). Given that the principle set forth in Gonzalez
was not established at the time Peace filed his appeal, and that
Luciano foreclosed Peace's Apprendi argument shortly after he
filed his appeal, the Court cannot conclude that appellate
counsel's failure to pursue an Apprendi claim constitutes
objectively unreasonable performance. In addition, because in
Luciano the Second Circuit appeared to resolve the issue of
Apprendi's application to mandatory minimum sentences pursuant
to section 841, the Court cannot conclude that Peace suffered any
prejudice as a result of counsel's failure to pursue Peace's
Apprendi objection. Accordingly, because Peace cannot show that
Fallick was ineffective for failing to raise the Apprendi issue
on appeal, he has not shown cause for the failure to raise that
issue and has therefore waived it with respect to this section
2255 petition. Finally, Apprendi does not apply retroactively
to section 2255 petitions. Coleman v. United States,
329 F.3d 77, 90 (2d Cir. 2003).
B. Peace's Sentence Properly Was Based Upon a Prior Conviction
Peace next urges that his sentence is unconstitutional pursuant
to Apprendi because it was based in part upon a prior
conviction, the existence of which was not submitted to the jury
and proved beyond a reasonable doubt. Again, however, Peace
waived this argument by failing to raise it on appeal. Moreover,
it is well established that a sentence may be based upon the fact
of a prior conviction that was not submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 489,
120 S.Ct. 2348, 147 L.Ed.2d 435; Almendarez-Torres v. United
States, 523 U.S. 226, 226 & 247, 118 S.Ct. 1219, 140 L.Ed.2d 350
(1998). Accordingly, Peace's sentence was properly based in part
upon his prior felony conviction.
C. Neither Blakely Nor Booker Apply Retroactively
Peace also asserts that his sentence violated the principles
set forth in 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). However, Peace
may not raise any argument with respect to those cases because
they were decided after Peace's conviction became final and they
do not apply retroactively to section 2255 petitions. Guzman v.
United States, 404 F.3d 139 (2d Cir. 2005); Carmona v. United
States, 390 F.3d 200, 202-03 (2d Cir. 2004).
D. Peace Did Not Receive Ineffective Assistance of Counsel
Peace asserts several reasons why three of his attorneys were
deficient. However, as set forth below, Peace fails to
demonstrate that any of his attorneys rendered objectively
unreasonable assistance and that he suffered prejudice as a
1. Lawrence F. Ruggiero, Esq.
Peace claims that Ruggiero was ineffective for failing to
explain to Peace the advantages of entering into a plea
agreement; negotiate a plea agreement providing for five years'
imprisonment that Peace asserts he was promised by an F.B.I.
agent who arrested and debriefed him; and follow up on a
proffered plea agreement dated April 6, 1999 that provided for a
sentencing range of 121 to 151 months' imprisonment. Ruggiero asserts in a sworn affidavit that he spent an
"extraordinary amount of time . . . calculating and explaining to
[Peace] the possible guideline sentences he faced if he pleaded
guilty or went to trial" and "attempting to negotiate the best
possible government guilty plea offer for Mr. Peace. . . ."
(Affidavit of Lawrence F. Ruggiero dated July 26, 2005 ¶ 4).
Ruggiero also maintains that he reviewed with Peace the results
of his negotiations with the government and "strongly advised
[Peace] to plead guilty" pursuant to the April 6 plea agreement.
(Id. ¶¶ 4-5).
Ruggiero relates that he spent three hours with Peace urging
him to enter into that plea agreement, but Peace refused because
"he believed he was entitled to a guilty plea to a drug charge
carrying a five-year mandatory minimum sentence." (Id. ¶ 6).
Ruggiero avers that he then attempted to negotiate a plea
agreement providing a mandatory five-year minimum sentence, but
the government refused to make such an offer. (Id.). Ruggiero
sets forth that he again "spent hours" with Peace explaining the
April 6 plea agreement to him and advising him to accept it, but
that Peace again refused and began "accusing [Ruggiero] of
ineffectively representing him." (Id.; see also Memorandum
dated Jan. 26, 2000 at 1, Ex. A to Petitioner's Reply).
Peace has failed to demonstrate that Ruggiero's representation
fell below an objectively reasonable standard. Ruggiero
successfully negotiated for Peace a draft plea agreement that
would have exposed him to between 121 and 151 months'
imprisonment substantially less imprisonment than Peace faced
and substantially less than he ultimately received. However,
Peace declined to sign that agreement. (Petitioner's Reply dated
Aug. 17, 2005 at 2-3). Peace's vague assertion that Ruggiero
failed to "follow up" with the government on that plea agreement
does not render Ruggiero's assistance ineffective. Likewise, the fact that Ruggiero was unable to convince the
government to allow Peace to plead guilty to a charge carrying
"only" a five-year mandatory minimum sentence does not render his
representation objectively unreasonable, especially given that
Peace was eligible for a mandatory minimum sentence of four times
that length. Accordingly, Peace has failed to demonstrate that
Ruggiero rendered ineffective assistance of counsel.
2. Ellyn I. Bank, Esq.
Peace contends that Bank rendered ineffective assistance of
counsel because she failed to negotiate a plea agreement
providing for five years' imprisonment; forced him to go to
trial; never informed him that the Court had discretion to accept
or reject a plea agreement; and failed to investigate his case
and develop a defense at trial.
Bank avers that she engaged in plea negotiations with the
government and explained to Peace "in specific detail, on
numerous occasions, the advantages of his pleading guilty over
being convicted after trial." (Affirmation of Ellyn I. Bank, Esq.
¶¶ 3, 5). Bank asserts that she specifically informed Peace that
"if he pled guilty prior to trial," the government "would not
file a prior felony information and [Peace] therefore would
receive a significantly lesser sentence than if he was convicted"
at trial. (Id. ¶ 3). Nonetheless, she maintains that Peace
refused to enter into a plea agreement. (Id. ¶¶ 7-8).
Bank further avers that she never forced Peace to go to trial,
and she did inform him that the Court had discretion to accept or
reject a plea agreement. (Id. ¶¶ 9-11). Finally, Bank sets
forth that she investigated the facts of the case and prepared a
defense. (Id. ¶ 12).
Peace has failed to demonstrate ineffective assistance of
counsel. Bank was not ineffective merely because she was unable
to negotiate a plea agreement providing for a five-year mandatory minimum sentence. In fact, during Bank's
representation of Peace, the government offered him a plea
agreement providing for a sentencing range of 135 to 161 months.
(Plea Agreement dated May 4, 1999 at 3, Ex. I to Petition of
Robert Peace). Peace sets forth that he "was willing" to enter
into that plea agreement, but does not explain why he failed to
do so. (Pet. of Robert Peace at 23 ¶ 8).
Bank avers that Peace communicated to her his willingness to
enter into the plea agreement and she scheduled a plea with the
Court. However, after Peace was produced in the courtroom, "he
decided that he did not want to plea[d] guilty but that he in
fact wanted to proceed to trial instead." (Affirmation of Ellyn
I. Bank, Esq. ¶ 7). Bank sets forth that she informed Peace
"again, that if he rejected the government's plea offer, the
government would file a prior felony statement and, if he was
convicted at trial, he would be facing a minimum of twenty
years." (Id. ¶ 8). Nonetheless, Peace declined to enter into
the plea agreement. (Id. ¶¶ 7, 9).
In addition, Peace does not explain his assertion that Bank
"forced" him to go to trial, (Pet. of Robert Peace at 22 ¶ 3),
and the record contains no evidence to support that contention.
Peace also has failed to point out how Bank's representation at
trial fell below an objective standard of reasonableness,
especially considering that Peace was acquitted of conspiracy
with respect to five kilograms or more of cocaine. Finally, even
assuming that Bank failed to inform petitioner that the Court
could accept or reject a plea agreement, that failure could not
have prejudiced Peace because he never signed a plea agreement in
the first place. Accordingly, Peace has failed to demonstrate
ineffective assistance of counsel with respect to Bank. 3. Barry M. Fallick, Esq.
Petitioner asserts that Fallick was ineffective for failing to
raise an Apprendi argument on appeal discussed above as
well as the issues of petitioner's minor role in the offense of
which he was convicted and Bank's ineffectiveness at trial with
respect to a purported violation of the Confrontation Clause. In
addition, Peace contends that Fallick was ineffective for failing
to file a petition for a writ of certiorari on Peace's behalf.
Fallick responds that he did not raise the issue of
petitioner's minor role because it was irrelevant in light of the
fact that petitioner received the statutory mandatory minimum
sentence. (Affirmation of Barry M. Fallick, Esq. dated June 16,
2005 ¶ 3). Fallick further maintains that his review of the
record revealed no Confrontation Clause issue with respect to
which Bank was arguably ineffective, (id.), and Peace points to
none. Last, Fallick sets forth that he did not file a petition
for a writ of certiorari for Peace's case because that petition
would have been frivolous, and that he informed Peace of his
conclusion by letter and provided him with instructions as to how
Peace could petition for a writ of certiorari pro se. (Id. ¶ 4;
Letter to Robert Peace from Barry M. Fallick dated Nov. 11,
Fallick's conduct was not objectively unreasonable. Because
Peace's sentence could not have been altered even if Peace were
found to have played a minor role, Fallick's decision not to
raise that issue on appeal does not fall below professional
norms. In addition, Peace has failed to set forth the purported
violation of the Confrontation Clause and how Bank was
ineffective at trial, and thus has failed to demonstrate why it
was unreasonable for Fallick not to press those issues on appeal.
Further, because Peace had a full opportunity through this
petition to present his contentions as to Bank's alleged ineffectiveness, he suffered no prejudice. See Massaro v.
United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690,
155 L.Ed.2d 714 (2003).
Finally, because Peace is not constitutionally entitled to
review by the Supreme Court, he cannot show ineffective
assistance with respect to Fallick's failure to petition that
court for certiorari. Pena v. United States, No. 04 Civ. 9700,
2005 WL 1176073 at *8 (S.D.N.Y. May 18, 2005); Delacruz v.
United States, No. 92 Civ. 4445, 1992 WL 212318 at *1 (S.D.N.Y.
Aug. 27, 1992). Moreover, the Court is not aware of any
meritorious claims that could have been raised in such a
petition. Accordingly, the Court concludes that Fallick was not
The record indicates that Mr. Peace's successive trial counsel
each urged him to enter into different iterations of a plea
agreement, each of which provided for stipulated guidelines
ranges significantly below the guidelines range that applied to
him after conviction. However, petitioner rebuffed their efforts
and refused to enter into any such agreement, which was most
certainly his right. This motion is largely an effort to undo the
results of his knowing and voluntary choice, but that is not an
avenue available to support vacating a sentence pursuant to
The Court denies Peace's petition because his counsel was not
ineffective; petitioner waived his Apprendi objection; and
Apprendi, Blakely and Booker do not apply retroactively on
However, Peace has made a substantial showing of the denial of
a constitutional right with respect to whether his appellate
counsel was ineffective for failing to raise prior to the
Second Circuit's decision in Gonzalez an Apprendi claim on
appeal in light of the fact that Peace received a mandatory minimum sentence of
twenty years' imprisonment based upon a quantity of narcotics
that was not found by the jury beyond a reasonable doubt.
Accordingly, the Court grants Peace a certificate of
appealability with respect to whether (1) his appellate counsel
rendered objectively unreasonable representation by failing to
pursue Peace's Apprendi objection; and (2) that failure
prejudiced Peace. 28 U.S.C. § 2253(c)(2); Lucidore v. New York
State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Soto
v. United States, 185 F.3d 48, 51-53 (2d Cir. 1997).
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