The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Rasheem Jackson ("Petitioner") brings this petition, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence on the ground that he received ineffective assistance of counsel from his appellate attorney, Mary Anne Wirth. For the following reasons, the petition is denied.
On September 30, 2002, Jackson pled guilty to two counts of narcotics trafficking in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(c), and 846. Jackson entered his plea pursuant to a written plea agreement made with the United States Attorney's Office. In the agreement, Petitioner agreed that "neither a downward nor upward departure from the [s]entencing range [of 151-188 months] is warranted." (Plea Agreement, dated September 30, 2002 ("Plea") at 3.) However, the agreement did reserve Jackson's right to advance arguments at sentencing with respect to his Criminal History Category under the Guidelines and to seek what is known as a "horizontal departure." (Government's Opposition to Defendant Rasheem Jackson's Petition Pursuant to 28 U.S.C. §2255 ("Gov't Opp.") at 3 n.1.) Petitioner also agreed not to appeal or collaterally attack any sentence within or below the range of 151 to 188 months. (Plea at 5.)
Prior to sentencing, the parties briefed the issue of whether Jackson was eligible for a horizontal departure. Defendant's counsel, Elizabeth Macedonio, argued that Petitioner's Criminal History Category ("CHC") of VI overstated the seriousness of his prior crimes and cited to United States v. Mishoe, 241 F.3d 214 (2d Cir. 2001). (Letter from Elizabeth Macedonio, dated January 8, 2002 at 3.) In Mishoe, the Second Circuit held that, under United States Sentencing Guidelines ("USSG") § 4A1.3, a court could depart from CHC VI based on "an individualized consideration of factors relevant to an assessment of whether CHC VI 'significantly over-represents the seriousness of [the] defendant's criminal history or the likelihood that the defendant will commit further crimes.'" Id. at 219 (quoting USSG § 4A1.3). Referring specifically, to an offense involving sale of drugs, the opinion set forth a list of factors that might impact a court's decision to depart including, "the amount of drugs involved in [a defendant's] prior offenses, his role in those offenses, the sentences previously imposed, and the amount of time previously served compared to the sentencing range called for by placement in CHC VI." Id. The Government opposed Jackson's application for a horizontal departure. It contended that, given Petitioner's repeated serious felony convictions, Mishoe was inapposite and the Criminal History points were properly calculated. (See Gov't Opp. at 4.)
On January 22, 2003, at the sentencing hearing, the Court stated that the defendant in Mishoe was in a similar situation to Petitioner because "he qualified for VI both because of his prior state court convictions and also because he had in his case two prior narcotics convictions qualifying him as a career offender." (Transcript, dated January 22, 2003 ("1/22 Tr.") at 20.) The Court also noted, after reading the pertinent parts of Mishoe, aloud, that it needed to "look at the defendant's situation again" to see if it could depart. Upon reconsideration of Petitioner's prior record and the amount of prison time he had served for his prior offenses, however, the Court decided that Mishoe did not provide grounds for departure in the instant case, saying, "Mr. Jackson, I think that you made a very good statement and intend to turn yourself around at this point, but I don't think under the Mishoe case I can depart in the light of criminal history category, the crimes committed and the crimes for which you are charged here." (Id. at 25.) The Court proceeded to sentence Jackson to 151 months' imprisonment to be followed by three years of supervised release, and charged him with a special assessment of $200. (Id.)
On June 23, 2003 Mary Anne Wirth, Esq. was appointed to represent Petitioner on direct appeal. On January 6, 2004, she filed a motion in the Second Circuit to be relieved as Petitioner's attorney, as well as an Anders Brief. In her brief, she asserted that there were no non-frivolous issues for the Court's review. (Anders Brief, dated January 26, 2004 at 18.) Wirth concluded that there were "no appealable issues arising out of Jackson's sentence." (Id.) Wirth found no merit in Jackson's claim that this Court failed to recognize its ability to grant a horizontal departure under the Federal Sentencing Guidelines: "Judge Patterson recognized his authority to grant a horizontal departure from criminal history category VI, [and] his decision not to do so is not reviewable on appeal." (Id. at 27.)
On July 20, 2004, Petitioner's conviction was summarily affirmed and Wirth's motion to be relieved as counsel was granted by a Second Circuit panel. See United States v. Jackson, No. 03-112 (2d Cir. July 20, 2004) (summary affirmance of conviction and order granting motion to be relieved as counsel). Petitioner filed a Motion for Rehearing/Rehearing En Banc on August 4, 2004. This motion was denied without prejudice, as a motion for rehearing in light of Blakley v. Washington, 542 U.S. 296 (2004). The motion was renewed on January 25, 2005. On May 5, 2005, Petitioner's motion was dismissed because "the waiver of the right to appeal a sentence contained in a valid plea agreement is enforceable against appeals premised on Booker." United States v. Jackson, No. 03-1132 (2d Cir. May 5, 2005) (order reinstating July 24, 2004 summary affirmance).
On June 9, 2006, Petitioner filed a petition with this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. The Government submitted its Opposition on August 31, 2006. Petitioner submitted his Reply on October 11, 2006.
The Petition is denied both because Petitioner waived his right to post-conviction litigation under 28 U.S.C. § 2255 in his plea agreement and because his claim of ineffective assistance of counsel fails on its merits.
A.Petitioner Waived the Right to File a § 2255 Motion
Petitioner foreclosed his right to file this motion when he signed his plea agreement with the government. His plea explicitly stated that he would not "file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the stipulated Guidelines sentencing range of 151-188 months." (Plea at 5.) At the plea hearing Petitioner stated that he had never been treated for a mental illness, and that he had not used any drug, medication or alcoholic beverage of any kind within the last two days. (See Transcript, dated September 30, 2002 ("9/22 Tr." at 3.) Then the Court ensured that Petitioner understood the meaning of the appeal waiver:
THE COURT: Do you understand that in this plea agreement, there is a limitation on that right to appeal, and that is that if the sentence is within the stipulated guideline range of 151 to 188 months, ...