UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 15, 2006
SYED FAROOQ AHMED, PETITIONER,
THE UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge:
To the Honorable Jed S. Rakoff, United States District Judge:
Pro se petitioner Syed Farooq Ahmed, a/k/a "Farooq Shah," has petitioned pursuant to 28 U.S.C. § 2255 to vacate his September 13, 2002 sentence of 70 months imprisonment. (Dkt. No. 2: Pet. ¶¶ 2-3.) Ahmed claims that he is entitled to relief because: (1) his trial counsel was ineffective because he abandoned an argument that Ahmed should be held responsible for no more than 277 grams of heroin for sentencing purposes (Pet. ¶ 12(1)); (2) his trial counsel was ineffective because he failed to discover alleged Brady evidence that would have established that Ahmed was not part of the broader conspiracy involving larger quantities of heroin (Pet. ¶ 12(2)); and (3) his sentence was not constitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), because it was based on facts as to drug quantity not determined by a jury (Pet. ¶12(3)).
For the reasons set forth below, Ahmed's petition should be DENIED.
A second superseding indictment was filed on December 18, 2001 charging Ahmed and three others, Abid Chaudhry, Usman Chaudhry and Junaid Iqbal, with one count of conspiring to "distribute and possess with intent to distribute a controlled substance, to wit, one kilogram and more of mixtures and substances containing a detectable amount of heroin, in violation of Sections 812, 841(a)(1), and 841(b)(1)(A) of Title 21, United States Code." (00 Cr. 1184, Dkt. No. 15: S2 Superseding Indict. ¶¶ 1-2, contained in Ahmed 2d Cir. Appx. at A7.)
The March 6, 2002 Pimentel Letter
On March 6, 2002, the government submitted a Pimentel letter setting forth the government's position regarding the application of the Sentencing Guidelines to Ahmed's case (Ahmed 2d Cir. Appx. A11.1: Pimentel Ltr.) Because the government alleged that the conspiracy involved between three and ten kilograms of heroin, the government calculated a base offense level of 34 under U.S.S.G. §2D1.1. (Pimentel Ltr. at A11.2.) The Government stated that Ahmed appeared to satisfy the conditions set forth in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 for relief from the statutory minimum sentence provision, warranting a two-level reduction in his offense level. (Pimentel Ltr. at A11.2.) In addition, the government stated that if Ahmed entered a guilty plea, "a two-level reduction in the offense level would be warranted for acceptance of responsibility" under U.S.S.G. §3E1.1(a). (Pimentel Ltr. at A11.2.) Lastly, the government noted that "[i]f the defendant timely notifies the Government of his intent to plead guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently, an additional one-level reduction would be warranted under U.S.S.G. § 3E1.1(b)." (Pimentel Ltr. at A11.2.) Based on these considerations, the letter calculated Ahmed's applicable Guidelines offense level be 29, which called for a Guideline range of 87 to 108 months. (Pimentel Ltr. at A11.3.)
The Plea Hearing
At the April 5, 2002 plea hearing, Ahmed's counsel indicated that Ahmed wished to plead guilty to Count One of the superseding indictment. (Ahmed 2d Cir. Appx. A12: 4/5/02 Plea Tr. at A13-A14.) At the start of the hearing, Judge Rakoff asked Ahmed whether he was satisfied with his representation by his counsel, John Jacobs, and Ahmed replied that he was. (Id. at A18.) Ahmed also responded that he had a full opportunity to discuss the matter with his counsel and that he had told his counsel everything that he knew about the proceeding. (Id.) After Judge Rakoff advised Ahmed of certain rights that he was giving up and certain consequences of pleading guilty (id. at A18-A26),*fn1 the following colloquy ensued:
THE COURT: Then in light of everything we have now discussed, Mr.
Ahmed, tell me what it is that you did that makes you guilty of this offense.
A. Your Honor, I sold 277 grams of heroin, which I did it.
Q. How did you make arrangements to get that heroin?
A. I was given by Abid's brother, Usman Chaudhry. He gave it to me in Queens.
Q. When he gave it to you, did he explain or did you know how he was getting it?
A. Yes, I did, your Honor.
Q. Did you know that there was a group of people who worked together illegally selling heroin?
A. Yes, your Honor. Abid, whose name is there, they came with two kilos of heroin, and they wanted to give me, and I said I cannot do that much. His name is Jonay Igbal.
Q. You knew that there was a group of people here who were trying to sell more than a kilogram of heroin even though you were only going to sell a small part.
A. Yes, your Honor.
Q. And you agreed to help out by selling some portion of it?
A. First of all, when Jonay Igbal brought that item, at that time I refused.
Q. Yes, but eventually you agreed to sell some, yes?
A. Yes, your Honor. I only sold that 277 gram[s] of heroin.
Q. I understand, but let me make sure we are on the same wavelength. You knew that the people who were providing the heroin to you were trying to sell more than a kilogram of heroin, yes?
A. Yes, I do, your Honor.
Q. And you knew that while you were not agreeing to sell that large amount, you were going to help them out by selling a smaller amount, correct?
A. It was two years before, but this is the recent one. The one I sold 277 gram[s] was two years before, your Honor. About three years ago.
Q. We are talking about sometime between October 1999 and December 2000.
A. Yes, your Honor, I sold the same 277 gram[s] within this period of time.
Q. Right. When you agreed to sell it, you knew that the other people who were providing it to you were planning to sell more than a kilogram of heroin, yes?
A. Yes, your Honor.
Q. And you agreed to help them out by selling this smaller amount.
A. Yes, your Honor, I did it only a small quantity because I was not working at that time.
Q. And you knew, did you not, that they would probably look to get other people to sell the rest of it?
A. Yes, your Honor. (Id. at A26-28, emphasis added.) When asked how he plead to Count One of the superseding indictment, Ahmed responded, "Yes, sir, your Honor, but it was only 277 grams which I did." (Id. at A30.) Judge Rakoff responded: "Yes, I think I understand that. But do you understand, because this is an important point, when you plead guilty to a conspiracy, you become responsible not only for what you did but also for what others did? Do you understand that?" (Id.) Ahmed responded, "Yes, your Honor." (Id.) Judge Rakoff accepted Ahmed's plea of guilty. (Id. at A30-31.) September 9, 2002 Letter from Defense Counsel Regarding Sentencing
On September 9, 2002, Ahmed's defense counsel John Jacobs submitted a letter to Judge Rakoff regarding Ahmed's sentencing. (Ahmed 2d Cir. Appx. A33: 9/9/02 Sent. Ltr. at A33-A37.) Defense counsel's letter recommended that Ahmed's adjusted Guidelines offense level should be calculated as 21, which would result in a sentence of 37-46 months imprisonment. (Id. at A33-A34.) Defense counsel argued that because "Ahmed only admits to handling and having knowledge of 276 grams of heroin"*fn2 and terminated his relationship with his co-defendants after that one transaction, thereby withdrawing from the conspiracy, Ahmed should only be held accountable for 276 grams of heroin. (Id.) Ahmed's counsel explained that if Ahmed were held accountable for only 276 grams of heroin, his base level would be 26. (Id. at A34.) Defense counsel argued that, "[a]fter adjustments for safety valve and acceptance of responsibility, Mr. Ahmed's Total Offense Level is 21, resulting in 37-46 months incarceration." (Id.)
Defense counsel also asserted that Ahmed had an "'extraordinary physical impairment,' such as in the case of a 'seriously infirm defendant'" under U.S.S.G. § 5H1.4. (9/9/02 Sent. Ltr. at A35.) Ahmed was diagnosed with advanced tongue cancer in 2001, which required radiation treatment and chemotherapy. (Id.) Defense counsel argued that "due to Mr. Ahmed's medical condition, his diminished life expectancy and his difficulties receiving proper medical treatment from the Department of Corrections and the Bureau of Prisons, a medical condition downward departure is warranted." (Id. at A37.) Defense counsel requested that Judge Rakoff downwardly depart to time served for these reasons. (Id. at A37.)
September 12, 2002 Response Letter from the Government
On September 12, 2002, the government responded to Ahmed's counsel's sentencing letter. (Ahmed 2d Cir. Appx. A163: Gov't 9/12/02 Sent. Ltr.) The government argued that Judge Rakoff should deny Ahmed's application for a downward adjustment in his offense level and a downward departure based on his medical condition. (Id. at A163-A166.)
With respect to Ahmed's offense level, the government noted that during his plea, Ahmed admitted to knowing about considerably more heroin than the 276 grams of heroin that he sold himself: "the defendant affirmed under oath that he 'knew that there was a group of people here who were trying to sell more than a kilogram of heroin,' . . . and that he 'agreed to help them out by selling' a portion of the heroin." (Id. at A164.) The government pointed out that, "[i]ndeed, the defendant affirmed that when he agreed to sell heroin for the conspiracy, he was aware that co-conspirators had previously offered him two kilograms of heroin." (Id.) The government also noted that:
The defendant's statement that he was unaware of any part of the conspiracy other than the 276 grams of heroin he admits to receiving also is belied by information the Government has received from a co-conspirator who is cooperating with the Government. In particular, the cooperating witness ("CW") has informed the Government that Ahmed was aware of a quantity of heroin that the CW had received in the course of the conspiracy and that Ahmed advised the CW how to store the heroin in order to preserve its quality. (Id. at A164 n.1.) The government disputed Ahmed's claim that he withdrew from the conspiracy, stating that it was refuted by evidence that he participated in at least two more telephone calls with members of the conspiracy after the initial transaction. (Id. at A164-A165.) In one of the telephone calls, Ahmed agreed to receive from a confidential informant "'two books,'" or two kilograms of heroin, and to pay the courier six to seven thousand dollars per kilogram. (Id. at A165.) The government used these facts to bolster its argument that Ahmed should be sentenced based on three to ten kilograms of heroin, resulting in an adjusted offense level of 29 and a Guideline sentence range of 87 to 108 months imprisonment. (Id.)
With respect to Ahmed's request for a downward departure based on his medical condition, the government stated that: "There is no dispute that the defendant has been diagnosed with cancer of the tongue. However, the most recent medical records submitted by the defendant in support of his application indicate that he has responded well to treatment, and that no further treatment is recommended by the treating physicians." (Id.) The government concluded that "the defendant has not established that his physical impairment falls so far outside the heartland of cases contemplated by the Sentencing Commission as to warrant a departure." (Id.)
The September 13, 2002 Sentencing
Ahmed's sentencing was held on September 13, 2002. (Ahmed 2d Cir. Appx. A170-A194.) At the beginning of the sentencing, Judge Rakoff requested that counsel address the question of Ahmed's base offense level, based on the Probation Department calculation in the Presentence Report of a base offense level of 34 based on 3-10 kilograms of heroin in the conspiracy. (Id. at A171.) The following colloquy ensued:
MR. JACOBS [Defense Counsel]: . . . The defendant clearly, to probation and to your Honor and at the one proffer session that we had, clearly indicated that he was aware that the conspiracy involved more than one kilo. He told your Honor, I think correctly, that he was offered two kilos. He turned that down, took a smaller amount, sold it, kept the money.
THE COURT: But he was doing that, if I remember, and we can go back to the transcript, but he was doing that knowing that he was acting in furtherance of a broader conspiracy that involved others who were contemplating the sale of more.
MR. JACOBS: That is correct, your Honor.
Your Honor, I think, asked that question, and I think the defendant clearly acknowledged it.
THE COURT: So why isn't he legally then responsible?
MR. JACOBS: That question involved at the time two kilos, what I think he articulated to your Honor. My client and I have always disputed 3 to 10. THE COURT: I don't mean to interrupt, but I think you are right that the transcript doesn't go to 3 to 10. . . .
But it certainly goes to more than a kilogram. You said two, and I would have to parse it through. But in terms of the guidelines, . .
2D1.1 . . . If it is at least one kilogram but less than 3 kilograms, then the level is 32. So if that's what you are arguing for, I understand that argument. It is the argument about 26 that I didn't understand.
MR. JACOBS: Your Honor, you are correct on the interpretation of the law.
I think the problem that we have always had is, he turned down getting involved in the two kilos. He said, I'll only take 276, that's what I want to sell. Yes, that's in furtherance of helping the other people. I guess I am splitting hairs, but that's what his position has always been.
THE COURT: I understand. That was always made clear, but he answered the questions that I have referred to.
I am prepared to put it at level 32, but let me hear from the government.
MR. JACOBS: Then, Judge, I have no further argument. I will withdraw my request in the letter for the 26. I would go along with your Honor's finding of 32 and note my objections formally from the record on any other argument on weight.
THE COURT: All right. (Id. at A172-A174, emphasis added.) After discussion with the government (id. at A174-A177), Judge Rakoff stated that he would "leave it at 32." (Id. at A177.)
Judge Rakoff also addressed at length the question of whether Ahmed's medical condition warranted a downward departure. (Id. at A178-A191.) Ultimately, Judge Rakoff denied Ahmed's motion for downward departure for medical reasons and determined that the appropriate offense level for Ahmed was 27, which was the result of a base offense level of 32, less five points for the safety valve and acceptance of responsibility reductions, for a guideline range of 70 to 78 months. (Id. at A191.) Judge Rakoff sentenced Ahmed to 70 months imprisonment, the bottom of the Guideline range. (A191; see also Ahmed 2d Cir. Appx. A195-A200: Judgment at A196.) Ahmed's Direct Appeal
Represented by new, appointed appellate counsel, Ahmed appealed to the Second Circuit, claiming that: (1) "the district court should be required to resentence defendant on the basis of the 277 grams of heroin that he obtained for resale rather than on the basis of the two kilograms that the sellers made available to him" (Ahmed 2d Cir. Br. at 2); and (2) because the district court had the power to make a downward departure in Ahmed's sentence, "the case should be remanded to permit the district court to reconsider the departure motion" (id. at 3).
On May 12, 2004, the Second Circuit dismissed Ahmed's appeal and affirmed his sentence. United States v. Shah, 96 Fed. Appx. 773, 774 (2d Cir. 2004). As to the drug quantity, the Second Circuit held:
Defendant first claims that the District Court erred in holding him responsible for the distribution of between one and three kilograms of heroin, resulting in a base offense level of 32 under U.S.S.G. § 2D1.1. Defendant contends that he was responsible for only 277 grams, and that his corresponding base offense level should be 26. Defendant's counsel made this argument to the District Court at sentencing, but then explicitly "withdr[e]w" it, and agreed with the District Court that 32 was an appropriate base level.
The Supreme Court has distinguished "waiver," the "intentional relinquishment or abandonment of a known right," from "forfeiture," the "failure to make the timely assertion of a right." Whereas we review a forfeited argument for "plain error," a waived right is unreviewable. Defendant's counsel clearly and expressly abandoned the argument that defendant was responsible for only 277 grams of heroin -quite possibly in the hopes of convincing the judge to accept a base offense level of 32 (based on one to three kilograms of heroin) rather than the even higher offense level (based on between three and ten kilograms of heroin) that the Government was advocating at sentencing. We therefore cannot review defendant's argument.
United States v. Shah, 96 Fed. Appx. at 774 (citations omitted).
Ahmed filed a petition for certiorari in the Supreme Court, raising the issue of "[w]hether, in light of Blakely v.Washington, 124 S. Ct. 2531 (2004), defendant's Fifth and Sixth Amendment rights to a jury trial, to notice and to indictment by a grand jury were violated when, without specific charge in the indictment or finding by a jury beyond a reasonable doubt, the district court elevated defendant's sentence -- even though he only admitted to agreeing to sell only 277 grams" of heroin. (See Pet. ¶ 9(g).) On November 1, 2004, the Supreme Court denied certiorari. Ahmed v. United States, 543 U.S. 973, 125 S. Ct. 438 (2004).
Ahmed's Present §2255 Petition
In August 2005, Ahmed filed his present pro se § 2255 petition to vacate his sentence. (Dkt. No. 2: Pet.) Ahmed alleged that he is entitled to relief under 28 U.S.C. § 2255 because: (1) his trial counsel was ineffective because he abandoned an argument that Ahmed should be held responsible for no more than 277 grams of heroin for sentencing purposes (Pet. ¶ 12(1)); (2) his trial counsel was ineffective because he failed to discover alleged Brady evidence that would have established that Ahmed was not part of the broader conspiracy involving larger quantities of heroin (Pet. ¶ 12(2)); and (3) his sentence was not constitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), because it was based on facts as to drug quantity not determined by a jury (Pet. ¶12(3)).
Trial Counsel's Affidavit
On December 20, 2005, this Court issued an order requesting that Ahmed's trial counsel, John Jacobs, provide an affidavit summarizing the pertinent information he provided to Ahmed during his sentencing. (Dkt. No. 4: 12/20/05 Order at 1.) The Court was not aware when it issued the order that Jacobs had passed away on October 29, 2005. (See Dkt. No. 6: Plaumann Aff. ¶ 2.) On January 13, 2006, Stefanie V. Plaumann, an associate of Jacobs who worked with him on Ahmed's case, provided an affidavit in response to the Court's Order. (See Plaumann Aff. ¶¶ 1-14.) Plaumann stated that prior to Ahmed's sentencing, she and Jacobs had discussed two possible arguments that they intended to use in support of a shorter sentence for Ahmed. (Id. ¶ 9.) The first was an argument advocating a downward departure based on Ahmed's medical condition, and the second was "an argument that Mr. Ahmed was not responsible for the entire amount of drugs in the conspiracy (between three and ten kilograms)." (Id.) Plaumann noted that the decision to make the latter argument "was based upon Mr. Jacobs' conversations with Mr. Ahmed, comments made during proffer sessions and Mr. Ahmed's allocution at his guilty plea." (Id.) Plaumann stated that while the defense was planning to make the argument regarding Ahmed's responsibility for a smaller amount of drugs, they knew that "the law was not on [their] side," because "in a conspiracy, members are not only responsible for their actions, but for the actions of others as well." (Id. ¶ 10.) With regard to Jacobs' decision at the sentencing hearing to abandon the argument that Ahmed should be held responsible for no more than 277 grams of heroin for the purposes of sentencing, Plaumann asserted that "it is clear to me that [Jacobs'] acceptance of Judge Rakoff's ruling on Mr. Ahmed's offense level was undoubtedly strategic." (Id. ¶ 12; see also id. ¶ 14.) Plaumann also noted that "Mr. Jacobs was well aware that Judge Rakoff's ruling was favorable to Mr. Ahmed and it was entirely possible that more harm than good could have been done by pressing the issue." (Id. ¶ 12.)
I. AHMED'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SHOULD BE DENIED
A. The Strickland v. Washington Standard on Ineffective Assistance of Trial Counsel *fn3 In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme
Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064; accord, e.g., Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003); Henry v. Poole, 409 F.3d 48, 62-63 (2d Cir. 2005). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064.*fn4
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction . . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time . . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted).*fn5
Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.*fn6
The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.
Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).
The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.*fn7
In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066.*fn8
As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d at 199.
B. Strickland Applies to Ineffective Assistance Claims Arising Out of A Guilty Plea or at Sentencing
The Strickland standard also applies to ineffective assistance claims arising out of a guilty plea. Eg., Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985); United States v. Thomas, 74 Fed. Appx. 113, 115 (2d Cir. 2003), cert. denied, 541 U.S. 1019, 124 S. Ct. 2089 (2004); United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002), cert. denied, 125 S. Ct. 2283 (2005).*fn9 "In the context of a guilty plea, the prejudice requirement 'focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Moore v. United States, 2001 WL 253432 at *11 (quoting Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370).*fn10
Where the petitioner's claim is that counsel was ineffective at the time of sentencing, Strickland applies, and the second prong (prejudice) requires a showing that there is a reasonable probability that, but for counsel's error, the result of sentencing would have been different, that is, the petitioner would have received a lesser sentence. See, e.g., United States v. Workman, 110 F.3d 915, 920 (2d Cir.), cert. denied, 520 U.S. 1281, 117 S. Ct. 2469 (1997); Fuse v. United States, 04 Civ. 7986, 2005 WL 2173743 at *1-2 (S.D.N.Y. Sept. 7, 2005); Santiago-Diaz v. United States, 299 F. Supp. 2d 293, 299-301 (S.D.N.Y. 2004); Hall v. United States, 01 Civ. 7525, 99 CR. 794, 2002 WL 31357780 at *1-2 (S.D.N.Y. Oct. 17, 2002); Luyanda v. United States, 95 Civ. 3797, S3 91 CR. 49, 1995 WL 450488 at *2 (S.D.N.Y. July 28, 1995), aff'd, 100 F.3d 945 (2d Cir. 1996).
C. Ahmed's Counsel Was Not Ineffective for Abandoning an Argument during Sentencing
Ahmed claims that his trial counsel was ineffective because he abandoned an argument that Ahmed should be held responsible for no more than 277 grams of heroin for sentencing purposes. (Dkt. No. 2: Pet. ¶12(1).) In pre-sentence letters to Judge Rakoff, Ahmed's counsel argued for sentencing based only on Ahmed's 277 grams, while the government proposed sentencing based on the 3-10 kilograms it asserted were involved in the conspiracy. (See pages 2-3, 5-8 above.) At sentencing, Ahmed's counsel reiterated that Ahmed only sold 277 grams of heroin and turned down getting involved in the two kilograms, but did not pursue that argument once Judge Rakoff indicated that he was prepared to sentence Ahmed based on one to three kilograms of heroin, instead of three to ten kilograms as advocated by the government. (See pages 8-10 above.) After hearing a short argument from the government for sentencing based on three to ten kilograms of heroin, Judge Rakoff ultimately sentenced Ahmed based on a drug amount of one to three kilograms of heroin. (See pages 8-10 above.)
During the sentencing hearing, Judge Rakoff referred to the answers that Ahmed gave during his plea allocution regarding drug amount. (See pages 8-9 above.) During the allocution, Ahmed acknowledged that his co-conspirators offered him two kilograms of heroin to sell, and that he agreed to help them by selling 277 grams of it. (See pages 3-5 above.) Ahmed also stated that he understood that by pleading guilty to a conspiracy, he became responsible for what his co-conspirators did. (See page 5 above.) "Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629 (1977).*fn11
Counsel's withdrawal of the argument that sentencing be based only on 277 grams was a reasonable strategy -- in light of the law and Ahmed's prior plea allocution -- that did not fall below the level of constitutional sufficiency. See, e.g., Perez v. Greiner, 01 Civ. 5522, 2002 WL 31132872 at *7-8 (S.D.N.Y. Sept. 25, 2002) (No ineffective assistance where defense counsel at sentencing stated that "'[i]f [the defendant] did this crime the maximum sentence is not enough. Defendant claims he's innocent. I have nothing else to say.'" Court found "the comment may have been a reasonable and competent strategy" where attorney tried not to "'further alienate the judge with unsupportable and self-serving allegations that his client was a 'family man.'"); Yapor v. Mazzuca, 04 Civ. 7966, 2005 WL 1845089 at *5 (S.D.N.Y. Aug. 3, 2005) (Casey, D.J. & Peck, M.J.) ("Counsel's acknowledgment of the seriousness of Petitioner's actions prior to asking for leniency represented a reasonable strategy that did not fall below the level of constitutional sufficiency."), report & rec. adopted, 2005 WL 1845089 (S.D.N.Y. Aug. 3, 2005); Morales v. United States, 373 F.Supp.2d 367, 376-77 (S.D.N.Y. 2005) (no ineffective assistance where defense counsel withdrew post-trial motion so that defense counsel and the government "could jointly present favorable sentencing terms to the Court.").
Moreover, Ahmed cannot show prejudice, the second Strickland prong. While he has consistently admitted to personally selling only 277 grams of heroin, he admitted in his plea allocution that he was offered two kilograms, turned it down because he could not sell that much, and agreed to sell 277 grams. (See pages 3-5 above.) He admitted knowing "that the people who were providing the heroin to [him] were trying to sell more than a kilogram of heroin." (See page 4 above.) Judge Rakoff explained to Ahmed at the time of his plea that in a conspiracy "you become responsible not only for what you did but also for what others did?" and Ahmed responded that he understood. (See page 5 above.) Thus, even if Ahmed's counsel had not withdrawn his 277 grams argument, the argument not only was unlikely to have changed Judge Rakoff's mind (see pages 9-10 above), but was contrary to the law, and thus would not have succeeded. See, e.g., United States v. Jackson, 335 F.3d 170, 180-81 (2d Cir. 2003) (defendant responsible for total amount of drugs that co-conspirator conspired to import where he knew of co-conspirator's activities or the activities were reasonably foreseeable); United States v. Martinez, 987 F.2d 920, 923-26 (2d Cir. 1993) (defendant can be sentenced based on amount of drugs sold by co-conspirators as long as amount was reasonably foreseeable); Paulino v. United States, 964 F. Supp. at 126 (allocution or plea agreement stipulation as to amount of drugs sufficient evidentiary basis for sentencing, citing cases); see also cases cited at page 27 below.
Ahmend has not satisfied either Strickland prong, let alone both. His ineffective assistance at sentencing claim should be DENIED.
D. Ahmed's Counsel Was Not Ineffective For Not Objecting to the Government's Alleged Failure to Produce Brady Evidence
Ahmed also claims that his counsel was ineffective because he failed to object to the government's alleged failure to produce Brady evidence that would have established that Ahmed was not part of the broader conspiracy involving three or more kilograms of heroin. (Dkt. No. 2: Pet.
¶12(2).) Specifically, Ahmed states that:
The following exculpatory evidence was never produced by the government and counsel did not object:
i) Sometime after Abid Chowdhry's recorded telephonic call of 12-21-00, his courier called Defendant inviting him to meet for a drug transaction. Defendant explicitly informed the courier that he was talking to the wrong person.
ii) Moments before Defendant's arrest Junaid (co-defendant) was wearing a recording device on his person when he offered Defendant drugs and Defendant explicitly told him that defendant was in computer business and had nothing to do with drugs. (Pet. ¶ 12(2).)
1. The Brady v. Maryland Standard *fn12
Under Brady v. Maryland and its progeny, state as well as federal prosecutors must turn over exculpatory and impeachment evidence, whether or not requested by the defense, where the evidence is material either to guilt or to punishment. See, e.g., Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948 (1999); United States v. Bagley, 473 U.S. 667, 676, 682, 105 S. Ct. 3375, 3380, 3383-84 (1985); United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963).*fn13 The Brady rule also encompasses evidence known only to the police: "In order to comply with Brady, therefore, 'the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police.'" Strickler v. Greene, 527 U.S. at 281, 119 S. Ct. at 1948 (quoting Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995)).
The Brady rule does not require a prosecutor to "deliver his entire file to defense counsel," but only to disclose those items which are material to the defendant's guilt or punishment. United States v. Bagley, 473 U.S. at 675, 105 S. Ct. at 3380; accord, e.g., Kyles v. Whitley, 514 U.S. at 437, 115 S. Ct. at 1567 ("We have never held that the Constitution demands on open file policy."); United States v. Agurs, 427 U.S. at 108-09, 96 S. Ct. at 2400.*fn14
"There are three components of a true Brady violation:  The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;  that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. at 281-82, 119 S. Ct. at 1948.*fn15
2. Application of the Brady Standard to Ahmed's Claim
Ahmed has not satisfied the second Brady prong, that evidence was suppressed by the government: according to AUSA Marcus A. Asner, the lead prosecutor on Ahmed's case, "the Government is unaware of any Brady material in Ahmed's case. As part of its discovery obligations, the Government produced, among other things, all of the tape recordings in its possession and control, together with translations of those recordings." (Dkt. No. 3: 10/5/05 Gov't Opp. Letter at 15.) Ahmed has offered no proof to the contrary. (Dkt. No. 2: Pet. ¶ 12(2).) Consequently, Ahmed cannot show that his trial counsel was deficient for not obtaining Brady material because there was no such Brady material to obtain. See Armatullo v. Taylor, 04 Civ. 5357, 2005 WL 2386093 at *11 (S.D.N.Y. Sept. 28, 2005) (no ineffective assistance where defense counsel did not press the government to turn over Brady evidence where there was no proof that alleged Brady material existed, and after prosecutor stated on the record that "she would turn over the information if she had it"); United States v. Sapia, 02 Civ. 649, 2002 WL 620483 at *9 (S.D.N.Y. Apr. 18, 2002) (no ineffective assistance where defense counsel allegedly "failed to investigate" purported Brady material, since government represented to the Court that "'there simply was no Brady material.'"); Vega v. Artuz, 97 Civ. 3775, 2002 WL 252764 at *14 (S.D.N.Y. Feb. 20, 2002) (no ineffective assistance where defense counsel "failed to obtain" purported Brady material, prosecutor had "set forth in detail all of the discovery materials that she had disclosed to defense counsel," and no true Brady material existed).*fn16
Ahmed's ineffective assistance of counsel claim relating to the failure to obtain Brady material should be DENIED.
II. AHMED'S THIRD HABEAS GROUND LACKS MERIT BECAUSE HE ADMITTED TO THE 2 KILOGRAM DRUG QUANTITY AT HIS PLEA ALLOCUTION
Ahmed's third habeas ground asserts that his sentence was not constitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). (Dkt. No. 2: Pet. ¶12(3).) Specifically, Ahmed states that his "enhanced sentence based entirely on facts neither found by a jury beyond a reasonable doubt nor admitted by defendant violated Blakely v. Washington." (Pet. ¶ 12(3).) In addition, Ahmed asserts that "[t]he evidence clearly established that neither Defendant was part of the broader conspiracy between his co-defendants, nor did the Defendant admit culpability to an offense beyond 277 grams of drug. Thus Blakely mandates a sentence commensurate to the facts admitted by Defendant which is 277 grams of heroin." (Pet. ¶ 12(3).)
Aside from any procedural defects (which the Court need not reach), the problem with Ahmed's argument is that he himself admitted in his plea allocution the facts that were used to sentence him: while he personally only sold 277 grams of heroin, he admitted that it was part of 2 kilograms that he knew his co-conspirators were selling. (See pages 3-5 above.) Facts admitted by a defendant in his plea allocution, including as to drug quantities, still can be used in sentencing under the Supreme Court's Apprendi-Blakely-Booker line of cases. See, e.g., United States v. Gonzalez, 420 F.3d 111, 123-125 (2d Cir. 2005) (Apprendi line of cases not implicated where defendant admits to specific drug quantity during plea allocution); United States v. Champion, 234 F.3d 106, 111 (2d Cir. 2000); United States v. Arias, 04 Cr. 411, ---F. Supp. 2d ---, 2005 WL 2414549 at *11 (S.D.N.Y. Sept. 20, 2005) (discussing Gonzalez, noting that "'[t]he drug quantities specified in 21 U.S.C. § 841 are elements that must be pleaded and proved to a jury or admitted by a defendant to support any conviction on an aggravated drug offense'") (emphasis added); Acevedo v. United States, 00 Civ. 9696, 98 Cr. 1230, 2002 WL 1453828 at *3 (S.D.N.Y. July 3, 2002) (In Champion, "the Second Circuit held that Apprendi concerns were not implicated where the defendant had stipulated [in a plea agreement] to the amount of drugs at issue . . ."); Valdez v. United States, 00 Civ. 9105, 2001 WL 29998 at *1-2 (S.D.N.Y. Jan. 8, 2001) (holding that the defendant who stipulated to drug quantity in his plea agreement had no claim under Apprendi); Lendof v. United States, 99 CR 286, 00 Civ. 4312, 2001 WL 327155 at *9 (S.D.N.Y. Apr. 4, 2001) (same); see also cases cited at page 22 above. Here, Ahmed specifically stated during his plea allocution that he participated with his co-conspirators in selling two kilograms of heroin and that he understood that by pleading guilty to that conspiracy, he would be responsible for not only what he did, but also what his co-conspirators did. (See page 5 above.) Ahmed's sentence was based on his plea allocution as to his involvement in a conspiracy to sell two kilograms of heroin, even though he personally sold only 277 grams. His sentence did not violate the Apprendi-Blakely-Booker line of cases.
Ahmed's third habeas ground therefore should be DENIED.
For the reasons set forth above, Ahmed's § 2255 petition should be DENIED in its entirety.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff (with a copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
Andrew J. Peck United States Magistrate Judge