The opinion of the court was delivered by: John G. Koeltl, District Judge
The petitioner, Ambionis Soriano, brings this motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the grounds that: (1) the imposition of his sentence was unconstitutional under the rules set forth in Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), (2) his guilty plea was not knowing, voluntary, and intelligent, and (3) his counsel provided ineffective assistance in connection with his plea. For the reasons stated below, the petitioner's motion is denied.
On February 5, 2002, the petitioner pleaded guilty, along with one co-defendant, to one count of conspiring, in violation of 21 U.S.C. § 846, to distribute and possess with the intent to distribute over five kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). (See Plea Tr. of Feb. 5, 2002 ("Plea Tr."), attached as Ex. C to Gov't Mem. in Opp'n. ("Gov't Mem.").) At his plea allocution, the Court specifically advised the petitioner that, if he did not plead guilty, the Government would be required to prove beyond a reasonable doubt at trial that the amount of cocaine involved in the conspiracy was five kilograms or more. (Id. at 14.) The Court also advised the petitioner that the crime to which he was pleading carried a mandatory minimum sentence of ten years and a maximum penalty of life imprisonment. (Id. at 14--15.) The Government provided the petitioner with a letter pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), but the petitioner did not plead pursuant to any plea agreement with the Government.
Prior to sentencing, the petitioner and his co-defendant moved for various downward departures from the applicable Sentencing Guidelines range. The Court held an evidentiary hearing on September 26, October 7, and October 14, 2003 to resolve factual disputes arising from the requested departures. During his hearing testimony, the petitioner admitted his involvement in negotiating a 100-kilogram cocaine transaction. (See Hr'g Tr. of Oct. 7, 2003 ("10/7/03 Hr'g Tr."), attached as Ex. A to Gov't Mem., at 32, 48, 50.) Following the hearing, in an order dated December 10, 2003, the Court denied the defendants' request for a downward departure. See United States v. Soriano, 295 F. Supp. 2d 317, 324 (S.D.N.Y. 2003). The Court noted that "the credible evidence establishes that the defendants agreed to purchase 100 kilograms of cocaine." Id. at 322.
At sentencing, the Court calculated the Sentencing Guidelines range in the petitioner's case at 135 to 168 months in part based on the finding that the conspiracy involved 100 kilograms of cocaine. (Sentencing Tr. of Feb. 27, 2004 ("Sent. Tr."), at 6.) The Court then sentenced the petitioner at the bottom of the range principally to a term of 135 months imprisonment. (Id. at 8.)
The judgment of conviction was entered on March 12, 2004. The petitioner did not file a notice of appeal. The petitioner timely filed this motion pursuant to 28 U.S.C. § 2255, which was received by the Court's Pro Se Office on February 9, 2005.
The thrust of the petitioner's complaint is that the Court unconstitutionally imposed a sentence based on a judicial finding that the petitioner engaged in a conspiracy involving 100 kilograms of cocaine. The petitioner raises three claims.
First, the petitioner argues that, based on the Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), the imposition of his sentence violated the Sixth Amendment because he was sentenced in excess of the statutory maximum based on judicial findings of fact that were not proved to a jury beyond a reasonable doubt or admitted by the defendant in his plea allocution. Second, the petitioner argues that the failure of the Court to advise him during his plea allocution that the Government would have to prove the 100-kilogram amount to a jury beyond a reasonable doubt resulted in a plea that was unknowing and involuntary. Third, the petitioner argues that his counsel was ineffective for failing to object to the Court's use of the 100-kilogram amount in calculating his sentence. These arguments are without merit.
As the petitioner recognizes, the judgment of conviction in his case became final before the Supreme Court issued its decisions in Blakely and Booker.*fn1 Thus, the threshold question is whether the petitioner can rely on the rules announced in these cases in seeking collateral review of his sentence under § 2255.
The Second Circuit Court of Appeals squarely addressed and resolved this issue as to Booker, holding that "Booker is not retroactive: it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." Guzman v. United States, 404 F.3d 139, 141 (2d Cir. 2005). With respect to Blakely, neither the Supreme Court nor the Second Circuit has declared that Blakely applies retroactively to cases on collateral review. Rather, in the context of second or successive petitions under § 2255, the Second Circuit Court of Appeals has stated that Blakely does not apply retroactively. Carmona v. United States, 390 F.3d 200, 202--03 (2d Cir. 2004). Other courts have held that Blakely does not apply retroactively to cases on collateral review. See, e.g., Schardt v. Payne, 414 F.3d 1025, 1027 (9th Cir. 2005); United States v. Price, 400 F.3d 844, 846--49 (10th Cir. 2005); Olivares v. United States, No. 05 Civ. 6094, 2006 WL 2057188, at *3 ...