The opinion of the court was delivered by: Trager, J.
Barry Reese ("petitioner"), appearing pro se, brings this motion pursuant to 28 U.S.C. § 2255, arguing three grounds for vacating, setting aside or correcting his 324-month prison sentence. See Pet'r Br. at 3, 5 & 12. Petitioner first claims that he received ineffective assistance of counsel. Id. at 3. Next, he argues that the indictment did not properly set forth the offenses for which he was sentenced. Id. at 5. Finally, petitioner argues that the indictment was constructively amended. Id. at 12. The petition is denied.
In April 1996, petitioner was indicted along with several others on various narcotics trafficking offenses. Gov.'s Opp'n Mem. at 1-2. Counsel was appointed to represent petitioner, but in August 1997, Steven Zissou ("Zissou") was appointed as substitute counsel. Id. at 2. Zissou represented petitioner for the next six years, up to and including petitioner's direct appeal. Zissou Aff. ¶ 2.
In August 1998, after several of petitioner's co-defendants became cooperating witnesses, the government obtained a superseding two-count indictment (the "S-4 Indictment") against petitioner alone. Gov.'s Opp'n Mem. at 2; Gov.'s Ex. 2 (S-4 Indictment). Count One of the S-4 Indictment charged petitioner with conspiring to distribute heroin and cocaine base in violation of 21 U.S.C. § 841(a)(1). Gov.'s Ex. 2. This count did not specify the quantity of drugs involved; it just contained a string citation to statutes that mentioned the relevant drug quantity, specifically, 21 U.S.C. § 841(b)(1)(A)(i) (requiring sentences of at least ten years and up to life in prison for offenses involving one kilogram or more of heroin) and 21 U.S.C. § 841(b)(1)(A)(iii) (requiring sentences of at least ten years and as much as life in prison for offenses involving fifty grams or more of cocaine base). See Gov.'s Opp'n Mem. at 2.
Count Two of the S-4 Indictment, which is the primary focus of this petition, charged petitioner with violating 21 U.S.C. § 848(e) by killing Ricky Beasley "while engaged in an offense punishable under Section 841(b)(1)(A) of Title 21, United States Code, to wit, the offense charged in Count One of this superseding Indictment." Gov.'s Ex. 2. Count Two carried a penalty of twenty years to life imprisonment or death. 21 U.S.C. § 848(e)(1)(A).
In support of Count Two, the government, during petitioner's plea, stated that it was prepared to prove petitioner approached Eddie Castro ("Castro"), a narcotics dealer with whom he worked, and told Castro that Ricky Beasley ("Beasley"), a dealer who worked for them, had been stealing drugs from them. See Gov.'s Ex. 5 (Sentencing Transcript) at 9. According to the government, petitioner told Castro that they should kill Beasley. The government obtained this information from Castro, who had agreed to cooperate with the government. Gov.'s Opp'n Mem. at 3. Petitioner does not dispute that, on June 3, 1993, he and Castro murdered Beasley. See Gov.'s Ex. 4 (Pleading Transcript) at 26. However, petitioner claimed during sentencing and now maintains that the murder was actually Castro's idea and petitioner only agreed to participate so that Castro would not kill him. See Gov.'s Ex. 5 at 11.
Zissou and petitioner discussed the advantages and disadvantages of proceeding to trial and the possibility of mounting a successful duress defense to the Beasley murder. Zissou Aff. ¶ 7-8. After lengthy discussions with Zissou, petitioner entered into a plea agreement covering both counts of the indictment. In the plea agreement, he agreed to waive any rights to appeal and any collateral attacks, provided that his sentence was below 405 months, the maximum penalty allowed under the estimated Guidelines range of 324-405 months. Id. at ¶ 9; Gov.'s Opp'n Mem. at 3. In August 1999, petitioner pled guilty to both counts. See Gov.'s Ex. 4 at 23.
During his plea allocution before Magistrate Judge Robert M. Levy, petitioner admitted that the drug conspiracy involved a kilogram or more of heroin and fifty grams or more of cocaine base. Gov.'s Ex. 4 at 25-26. In his affidavit in response to the present petition, Zissou maintains that he permitted petitioner to admit to the quantity because, at the time of the allocution, drug quantity was not considered an element of the offense, just a sentencing factor which the judge could find by a preponderance of the evidence. Zissou Aff. ¶ 13. Additionally, Zissou knew the government had several cooperating witnesses who could establish the drug quantities involved were substantially more than the statutory requirement. Id. As such, he did not believe the questions concerning drug quantities were particularly significant. Id.
After petitioner pled guilty, but before he was sentenced, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Thus, it allowed defendants to argue that the mandatory minimums of § 841 apply only if the government pleads the quantity of drugs and either proves it beyond a reasonable doubt or the defendant admits to it. Gov.'s Opp'n Mem. at 4.
Petitioner appeared for sentencing on January 26, 2001. See Gov.'s Ex. 5. In pre-sentencing papers and during oral argument, Zissou mounted a two-pronged Apprendi-based attack aimed at limiting petitioner's sentence. See Zissou Aff. ¶ 15-16; Gov.'s Opp'n Mem. at 4. First, he argued that the government did not specifically plead the quantity of drugs in Count One of the indictment. As a result, under Apprendi, petitioner could only be found guilty of violating § 841(b)(1)(C), which does not require a weight as an element of the crime. Zissou Aff. ¶ 15. That section carries a maximum sentence of twenty years. Id. Next, Zissou argued that the deficiencies of Count One also taint Count Two. Id. at ¶ 16. Because Count Two alleged a murder committed "while engaged in . . . the offense charged in Count One," and Count One had been reduced to a § 841(b)(1)(C) charge, Zissou maintained that petitioner could not be punished under Count Two or, alternatively, could only be sentenced to a maximum of twenty years. Id.
At sentencing, the government agreed with Zissou's argument on Count One, and I held that no mandatory minimum applied to Count One and that the maximum sentence for that count was twenty years. See Gov.'s Ex. 5 at 2. However, I held that Count Two did not suffer from this same defect. See id. at 19-20. Count Two was adequately pled because it tracked the statue and, therefore, gave the defendant sufficient notice of the charges. See id. at 14. Petitioner was sentenced to 324 months in prison, the minimum under the Guidelines, on Count Two and a concurrent term of 240 months on Count One. Id. at 24.
On my suggestion, Zissou filed an appeal of the sentence, despite petitioner's waiver of appeal under the plea agreement. See Zissou Aff. ¶ 19. The government moved to dismiss the appeal based on petitioner's waiver of appeal and, in the alternative, petitioner's stipulation as to the narcotics quantity involved. Gov.'s Opp'n Mem. at 5. Zissou submitted papers opposing the government's motion to dismiss. See Gov.'s Ex. 6. The Court of Appeals for the Second Circuit dismissed petitioner's appeal, not on waiver grounds, but on the alternative basis argued by the government, holding that even if the Apprendi error was outside the scope ...