MEMORANDUM-DECISION AND ORDER*fn1
Pro se Petitioner Juan Espinal-Martinez ("Petitioner") filed this Petition to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, on May 11, 2006. Petitioner alleges that (1) he was denied effective assistance of counsel, in violation of his rights under the Sixth Amendment to the Constitution of the United States, and (2) Petitioner objects to the sentencing scheme under 8 U.S.C. § 1326(b). For the following reasons, the Petition is denied.
Petitioner is a citizen of the Dominican Republic and first entered the United States as an illegal alien. He was deported by the Immigration and Naturalization Services ("INS") approximately eighteen (18) months prior to his arrest for the possession of heroin. Petitioner entered a guilty plea to a one count indictment of illegal re-entry into the United States of an alien following deportation, a violation under 8 U.S.C. § 1326(a) and (b), on July 15, 2004. Petitioner was sentenced on September 10, 2004 to eighty-eight (88) months imprisonment. Petitioner appealed his conviction and sentence, and the U.S. Court of Appeals for the Second Circuit withheld an opinion in order to let this Court determine whether to re-sentence Petitioner, pursuant to the United States Supreme Court's opinion in United States v. Booker 543 U.S. 220 (2005). This Court declined to re-sentence Petitioner on November 3, 2005. Neither party appealed the November 3, 2005 order. See Petitioner's Motion (Dkt. No. 1) at 1, 2.
A. Error Cognizable Under a Writ of Habeus Corpus
There is a high standard of error that must be established by a petitioner to succeed under a writ of habeas corpus. To rise to the level cognizable under a writ of habeas corpus, a trial court's error must be either jurisdictional or constitutional, or amount to "a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). This is the standard by which this Court evaluates Petitioner's claims.
B. Ineffective Assistance of Counsel
Petitioner alleges that he was denied effective assistance of counsel because his counsel failed to: (1) argue the United States v. Booker decision as a basis for appeal, (2) ask the court to exercise its sentencing discretion to correct the sentencing disparity created by the district courts that are "fast track" and this district, (3) argue the hardship faced by Petitioner's family, (4) advise Petitioner to file a direct appeal from the denial of re-sentencing. See Petitioner's Motion (Dkt. No. 1) at 4-6
For Petitioner to prevail on a claim of ineffective assistance of counsel, he must satisfy the two-part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, Petitioner must establish that his attorney's performance "fell below an objective standard of reasonableness," and second, that Petitioner was prejudiced because there is a "reasonable probability" that the outcome of the case would have been different but for the error. Id. at 688-694. For the first prong, counsel should be given a "strong presumption" of adequate assistance. Id. at 690.
1. Petitioner Was Not Denied Effective Assistance of Counsel When Counsel Did Not Make United States v. Booker Argument
The Supreme Court's ruling in United States v. Booker, held that the United States Sentencing Guidelines were no longer mandatory, and instead were to be considered advisory. Booker, 543 U.S. at 245-46. The Supreme Court also re-affirmed the holding from Apprendi v. New Jersey, 530 U.S. 466 (2000) saying, "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id. at 244. The Supreme Court found that the ruling would apply retroactively to direct review; however, did not reach the issue of collateral review. Booker, 543 U.S. at 268. This issue has been addressed by the Second Circuit which found that Booker does not apply retroactively on collateral review to cases in which the verdict was final before the date Booker came down, January 12, 2005. Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005).
Petitioner is pro se and as such the Court is required to read his submissions liberally. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 47 (2d Cir. 2006). The Court can only discern that Petitioner is alleging that his sentence is unconstitutional under Booker because his prior convictions were used to enhance his sentence even though they are facts that were not put to the trier of fact. See Petitioner's Motion (Dkt. No. 1) at 4-6. Petitioner appears to assert that it was outside the jurisdiction of the Court to look at his prior deportation following an aggravate felony. Id. Petitioner's argument is without merit. Booker clearly states that when courts consider prior criminal convictions during sentencing, these convictions need not be presented to the trier of fact. Booker, 543 U.S. at 244. By making an argument based on Booker, Petitioner would be asking the Court to find that enhancements based on prior convictions are unconstitutional when Booker clearly says the opposite. Even if Petitioner's counsel raised a challenge under Booker, the Court would have not have ruled differently. Further, it is not ineffective assistance of counsel when counsel chooses not to make a meritless argument. United States v. Arena, 180 F.3d 380, 396-97 (2d Cir. 1999). Since Petitioner would not have received a different outcome had his counsel made a Booker argument, Petitioner cannot show he was prejudiced by his counsel's failure to do so.
2. Petitioner Was Not Denied Effective Assistance of Counsel for Counsel's Failure to Make an Argument that the Sentencing Disparity Created Because of Fast-Track Districts is a Violation of Equal Protection
The Second Circuit recently held that a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable. See United States v. Mejia, 461 F.3d 158, 164 (2d Cir. 2006); United States v. Pereira, 465 F.3d 515, 522-23 (2d Cir. 2006). The Circuit held this notwithstanding the fact that the defendant might have been treated more favorably in a fast-track jurisdiction. Mejia, 461 F.3d at 164. This means that courts in non fast-track jurisdictions need not account for the difference that would occur if a defendant were processed in a fast-track jurisdiction. Since courts do not have to account for the difference between fast-track and non fast-track jursidictions, Petitioner cannot say with any reasonable probability that had his counsel made an argument alleging that the difference should be factored into sentencing, that the outcome of his ...