The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On October 27, 2005, Petitioner Apolimar Guzman deposited in the institutional mailbox a Motion for Consideration to Amend Judgment Nunc Pro Tunc Under [United States Sentencing Guideline ("U.S.S.G.")] § 5G1.1(b), under 28 U.S.C. § 2255. On May 3, 2006, Petitioner filed an Amended Motion. Petitioner seeks credit for imprisonment from November 20, 2002 to May 7, 2005 (Pet'r Mot. 1-2); specifically, nineteen months while on a writ from state custody spent at the Metropolitan Detention Center in Brooklyn ("MDC"), as well as ten months spent in state custody after the imposition of two federal sentences. (Am. Mot. 8.) He also makes a claim of ineffective assistance of counsel. (Id. at 7-8.)
Petitioner argues that, pursuant to U.S.S.G. § 5G1.3(b), at time of sentence on August 22, 2003, this Court should have reduced his federal guideline sentence of seventy months by the time he served in state custody, citing United States v. Kiefer, 20 F.3d 874 (8th Cir. 1994) and United States v. Dorsey, 166 F.3d 558 (3d Cir. 1999) in support. (Am. Mot. 4-5.) Petitioner supports his position with a lengthy quote, without attribution, from the discussion in Dorsey, 166 F.3d at 560, of Application Note 2 to U.S.S.G. § 5G1.3, entitled "Adjusted concurrent sentence-subsection (b) cases." (Am. Mot. 5-6.)
Petitioner's claim of ineffective assistance of counsel states that counsel failed to request that the Court impose a concurrent sentence with his to-be-imposed state sentence; failed to file a direct appeal; "abandoned Defendant [to] file the judgment of conviction and sentenced hereto"; "failed to adequately make clear the sentencing regime that faced Petitioner on conviction (including his not yet imposed state sentence)";*fn1 "failed to explain the plea agreements [Petitioner] was offered"; failed to request translation of the plea agreement into Spanish despite the fact that Petitioner spoke little English; and failed to request the services of an interpreter. (Am. Mot. 7.)
Count One of Petitioner's underlying indictment charged that he and others conspired to distribute five kilograms and more of cocaine between April 2002 and October 24, 2002. On June 25, 2003, Petitioner pled guilty to Count One of the underlying indictment pursuant to a plea agreement containing a stipulated guideline range of seventy to eighty-seven months in prison. At the time of the plea, Petitioner responded affirmatively when asked (1) if he had read the plea agreement and understood its terms, (Hr'g of June 25, 2003 Tr. ("Plea Tr.") 4), (2) if he understood he was giving up his right to appeal any sentence within the stipulated guideline range, (id. at 8), and (3) if he understood "that [he has] given up [his] right to litigate a guideline sentence, if it's imposed of between 70 to 87 months in any post-conviction litigation," (id.)
On August 22, 2003, Petitioner appeared for sentencing, and the following colloquy occurred in his presence:
Court: . . . I have several questions about [the presentence report]. The first is as I read the report, this man has been writted out of state custody since November 20th, 2002.
[Defense Counsel]: That is correct, your Honor. My client is currently a defendant in the state system. He has not yet been sentenced, but he is housed in Rikers Island awaiting charges in Bronx County.
Court: Serious charges? [Defense Counsel]: That's correct, your Honor, they will be addressed in the appropriate [forum].
Court: As I gather you are all aware, the time in federal custody on a writ will not be credited to his federal sentence. [Defense Counsel]: I understand that, your Honor. There is an issue,
I've explained that to my client.
Court: He understands it. [Defense Counsel]: He understand that, your Honor, and there's an issue in terms of what's transpiring in the Bronx, which I don't want to put forth on the record. I understand, your Honor.
Court: I don't know whether you will get credit on the state charges either for time in federal custody. [Defense Counsel]: Well, your Honor, with all due respect and deference, my client maintains his innocence on that case, and it might just be an academic ...