The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Gregory Graves ("Graves"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 challenging his conviction pursuant to a guilty plea. As grounds for habeas relief, Graves asserted that he did not receive the effective assistance of counsel during his plea bargain, at sentencing, and on appeal due to, inter alia, counsel's failure to request "specific performance" of the Government's alleged promise to make a downward departure motion in return for Graves' cooperation.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By Indictment No. 01-CR-6051 filed on September 21, 2000, a federal grand jury charged Graves with violations of 28 U.S.C. § 841(a) (possession of crack cocaine with intent to distribute) and 28 U.S.C. § 844 (felony possession of crack cocaine). On May 14, 2001, Graves entered into a plea agreement with the Government, pursuant to which he agreed to waive indictment and plead guilty to a felony information charging him with one violation of 28 U.S.C. § 924(c)(1) (possession of a firearm in furtherance of a drug-trafficking crime). In exchange for his guilty plea, Graves was guaranteed a sentence of fifteen years in accordance with former Rule 11(e)(1)(c) (now Rule 11(c)(1)(c)) of the Federal Rules of Criminal Procedure. The plea agreement also contained a cooperation provision which would be accomplished by the "[d]efendant's providing complete and truthful information regarding his knowledge of criminal activity and by testifying to the extent deemed necessary by the Government." Graves, 374 F.3d at 81. However, the cooperation section of the plea agreement did not require the defendant to provide or obtain information about criminal activity by acting as an informant nor did it provide that the Government would move, or consider moving for a 5K1.1 departure for rendering substantial assistance. Furthermore, Graves agreed that he would not appeal or collaterally attack the agreed upon fifteen-year sentence.
On September 13, 2001, the Government advised the Court that it was declining to move for the § 5K1.1 downward departure. Graves moved to withdraw the plea on November 27, 2001, and, after oral argument on December 10, 2001, the Court denied Graves's application. On December 14, 2001, Graves was sentenced to a term of imprisonment of fifteen years. Graves filed a notice of appeal on December 21, 2001, and on November 1, 2002, the Government's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there were no meritorious issues which could be raised on appeal.
The Court of Appeals for the Second Circuit filed an order on August 21, 2003, directing appellate counsel to file a revised brief addressing several additional issues: (1) whether the Government breached its cooperation agreement by failing to move for a downward departure because the information provided by Graves was not of an "historical nature"; (2) whether trial counsel was ineffective; (3) whether ineffective assistance of counsel was a basis for Graves to withdraw his plea; and (4) whether ineffective assistance of counsel claims are properly brought on direct appeal in the first instance when the defendant has different trial and appellate counsel; and (5) whether an Anders motion which fails to raise an ineffective assistance claim may be granted on the ground that the appellant may raise ineffective assistance in a 28 U.S.C. § 2255 petition in the first instance, without being procedurally barred. See Respondent's Memorandum of Law at 4 (Docket #29, No. 01-CR-6051T).
Graves then filed an appellate brief on October 23, 2003, in which he sought to compel the Government to move for a downward departure, arguing, inter alia, that the Government had breached the cooperation portion of the plea agreement. See Exhibit 5 to Respondent's Motion to Dismiss the Petition (Docket #29). The Government responded on December 20, 2003, and contended that it had not acted in bad faith in declining to make the downward departure motion. The Second Circuit issued a mandate on July 6, 2004, remanding the case to this Court for "factual inquiry as to what exactly was said about 'proactive cooperation,' what understanding was reasonably conveyed to the Defendant concerning the cooperation that would be required for him to have a chance for a reduced sentence and whether he would be released in order to render such cooperation, and whether the Government intended to oppose such release." United States v. Graves, 374 F.3d 80, 85 (2d Cir. 2004).
Pursuant to the Second Circuit's mandate, this Court held a hearing on September 9, 2004. At the opening of the hearing and before any factual inquiries were made, Graves, through appellate counsel, requested that he be permitted to withdraw his motion to withdraw the plea and to continue serving the original fifteen-year sentence.*fn1 The Court confirmed on the record that Graves was satisfied with appellate counsel's representation and that it was his informed decision not to proceed with the earlier motion to withdraw the plea. See Transcript of September 9,2004 Hearing at 3-5.
Graves filed the instant pro se petition for habeas relief on July 11, 2005, in which he raises the following claims for relief: (1) plea counsel was ineffective in "fail[ing] to get the 5K1.1 aspect of the agreement in writing and fail[ing] to discuss the terms at defendant[']s plea elocution"; (2) appellate counsel was ineffective in failing to request "specific performance of the government[']s breach and not withdrawal of defendant[']s plea"; (3) sentencing counsel was ineffective in failing to "raise an Apprendi violation due to unconstitutional sentencing enhancements" and failing to raise objections to the pre-sentence report; and (4) appellate counsel was ineffective in failing to raise a "Booker, Fanfan nor [sic] Blakely*fn2 violation due to unconstitutional sentence enhancements" and failing to raise objections to the pre-sentence report. See Petition at 5-6 (Docket #26, No. 01-CR-6051T).
Graves subsequently sought the appointment of counsel on August 1, 2005. The Court granted Graves's request on April 5, 2006, appointing attorney James Vacca, Esq. ("Vacca") to represent Graves. Vacca submitted a Response to Government's Motion to Dismiss Pursuant to 28 U.S.C. § 2255 ("Petitioner's Response") on Graves's behalf on July 7, 2006. Also attached to Petitioner's Response was Graves's pro se Reply to the Government's Response to the Motion to Vacate ("Petitioner's Reply"), dated May 9, 2006. The argument section of Petitioner's Response contains two main point headings: (1) trial counsel should have moved for specific performance of the cooperation/5K1.1 aspect of the plea agreement; and (2) trial counsel was ineffective in failing to move the District Court to bind the Government to its "5K1.1 promise," or, in the alternative, "to hold a bad-faith hearing on the same." In both of the argument sections, Vacca essentially makes the same argument, elaborating on Graves's assertion that he did not receive the effective assistance of counsel due to counsel's failure to request specific performance of the Government's alleged breach of the "5K1.1 agreement" instead of moving for withdrawal of petitioner's plea.
According to Vacca, Graves did not and does not want to withdraw his plea--rather, he "just [wanted to] hold the Government to its promise." Indeed, at the remand hearing, attorney Hosken only stated that Graves had decided to withdraw his motion to vacate the plea and continue serving his fifteen-year sentence. Vacca asserts that Hosken should have argued that Graves "was not contending that he had been assured that he would receive less than 15 years, but that he had been assured an opportunity to provide the Government with cooperation and substantial assistance that would warrant a 5K1.1 motion, which would give Mr. Graves a chance for a reduced sentence." Petitioner's Response at 8 (emphasis in original) (citing Graves, 374 F.3d at 84).
Both Vacca and Graves are requesting that the Court now hold the bad faith hearing originally ordered by the Second Circuit in 2004. In the event that the Government is found to have acted in bad faith, due to its alleged breach of its obligations under the so-called "cooperation clause" by failing to secure Graves's release from custody so that he could provide "proactive" cooperation to the Government, Vacca and Graves request specific performance of the so-called "cooperation 5K1.1 aspect of the plea agreement."
For the reasons set forth below, petitioner's request for a hearing is denied and his petition for a writ ...