The opinion of the court was delivered by: Garaufis, United States District Judge.
Petitioner Steven LoCurto has moved pursuant to 28 U.S.C. § 2255 for a writ of habeas corpus vacating his December 16, 2002 guilty plea for conspiracy to distribute marijuana (21 U.S.C. §§ 846 and 841(b)(1)(C)). LoCurto entered a guilty plea pursuant to an agreement with the government. LoCurto now asserts a Sixth Amendment ineffective assistance of counsel claim. LoCurto argues that there was an actual and unwaivable conflict of his defense counsel, Larry Bronson, Esq., that led to a lapse in his representation in that Bronson failed to correct LoCurto's impression that he would not be prosecuted in the future in exchange for his guilty plea. (Pet.¶ 12(C).) Additionally, LoCurto contends that his guilty plea was not made "knowingly and voluntarily," but rather that he was coerced into accepting it because he was told by Bronson and the Assistant U.S. Attorney that in exchange for the guilty plea he "would not [be charged] . . . with any more crimes." (Id. ¶ 12(B).) Finally, LoCurto asserts that he did not understand that the guilty plea could be used as a predicate act in a later prosecution of a racketeering conspiracy charge. (Id. ¶ 12(A).) As LoCurto is now a defendant in United States v. Urso, 03-CR-1382 (NGG), facing a racketeering charge alleging the instant marijuana distribution conspiracy as a predicate act in a racketeering conspiracy, LoCurto in this petition seeks not only to collaterally attack his conviction in the instant matter, but also the use of this conviction as a predicate act in the Urso racketeering charge against him. (Oppenheim Ltr., dated July 20, 2005, at 3.)
LoCurto's application for habeas relief on the basis of ineffective assistance of counsel fails because Bronson had no actual conflict during his period of representation, LoCurto knowingly and voluntarily waived any potential conflict that Bronson might have had in his representation of him, and the plea agreement was not the result of ineffective assistance of counsel. LoCurto's other bases are procedurally defaulted and are squarely foreclosed by the plea agreement and his plea testimony. Accordingly, LoCurto's petition is dismissed.
LoCurto was arrested in March 2002 and charged with "conspiring to distribute marijuana in violation of Title 21, United States Code, Sections 841(a), 841(b)(1)(B)(vii) and 846." (Gov't's Ltr. Br. Opp. Petition, dated July 2, 2005, at 1.) In United States v. LoCurto, 02-CR-307 (NGG), LoCurto was represented by Larry Bronson, Esq. (Oppenheim Ltr., dated July 20, 2005, at 3.) Bronson, joined by Barry Weinstein on December 10, 2002, represented LoCurto from LoCurto's arrest through his guilty plea in December 2002, and is a signatory to LoCurto's December 16, 2002 plea agreement. (Plea Agreement, attached as Ex. A to Gov't Br. ("Plea Agreement"), at 5; see also Transcript, attached as Ex. C to Gov't Br.)
Bronson also represented LoCurto's co-defendant Frank Coppa, who was arrested on October 2, 2002. At the arraignment of Coppa before Magistrate Judge Cheryl Pollak, Bronson acknowledged the potential conflict in representing Coppa and LoCurto, and stated that "I intend to represent Mr. Coppa and Mr. Locurto will either get other counsel or probably is going to plead guilty from negotiations we've been having." (Coppa Arraignment, attached as Exhibit A in Oppenheim Ltr., dated July 20, 2005, at 7.) In November 2002, Coppa "retained separate counsel to pursue cooperation with the government." (Gov't's Ltr., dated September 21, 2005, at 2.) Attorneys Ralph Cafaro and Richard Mays signed Coppa's proffer agreement on November 5, 2002; Bronson did not sign this or any agreement related to Coppa's plea and did not appear on behalf of Coppa during Coppa's Plea Hearing. (Id. at 2-3; see also Proffer Agreement, attached as Ex. A to Gov't Ltr.; Transcript of Plea, dated Dec. 12, 2002 ("Coppa Plea Hearing"), attached as Ex. B to Gov't Ltr.) However, Bronson had understood that he still represented Coppa at least until LoCurto's plea allocutions on December 16, 2002. (Transcript of Plea Hearing, dated Dec. 16, 2002 ("LoCurto Plea Hearing"), at 3, attached as Ex. C to Gov't Ltr. Br.)
In light of Bronson's representation of LoCurto and Coppa, on October 24, 2002 I appointed Harry Batchelder, Esq. as counsel to LoCurto to advise him of potential conflicts that Bronson might have in his representation of LoCurto ("Curcio counsel"). Assistant United States Attorney Greg Andres wrote to Batchelder on November 15, 2002, explaining the potential conflict. Before taking LoCurto's guilty plea, I conducted a hearing to determine whether LoCurto waived potential conflicts in Bronson's representation of him and Coppa:
The Court: Mr. Locurto, you've had an opportunity to speak with Mr. Batchelder regarding any potential conflict of interest that may arise as the result of Mr. Bronson representing you and Mr. Co[p]pa; is that right?
[LoCurto]: I have. I spoke to him on the phone.
The Court: Did Mr. Batchelder discuss with you what the possible consequences of such a conflict would be, if indeed that conflict did occur?
[LoCurto]: Yes, your Honor.
The Court: Have you considered whether or not you wish to continue with Mr. Bronson, with the knowledge that there may be at some point in the future a conflict which may arise between Mr. Bronson's representation of you and his representation of Mr. Co[p]pa?
[LoCurto]: Yes, your Honor.
The Court: At this time do you wish to go forward with Mr. Bronson's representation of you or do you wish to have another attorney represent you?
[LoCurto]: Mr. Bronson is fine. Thank you.
The Court: You're aware of the potential conflict, which is not an actual conflict, but you would like Mr. Bronson to continue to represent you at this time.
[LoCurto]: Yes, but I understand it's a waivable conflict anyway.
The Court: It's waivable in that it's a potential conflict and if there were an actual conflict, we'd have to examine what kind of conflict it was and whether or not it would be appropriate for Mr. Bronson to continue to represent one or the other of you, but we haven't crossed that bridge. We'll cross that bridge when we come to it. Do you understand that?
[LoCurto]: Yes, your Honor.
Mr. Andres: Judge, just to be clear, neither Frank Co[p]pa Senior nor Stephen LoCurto are charged in the same counts. Mr. Locurto isn't charged in the RICO count and Mr. Frank Cop[p]a Senior is. The substantive counts that Mr. Frank ...