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.
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) ...