The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Petitioner was convicted of seven criminal counts related to involvement in a continuing criminal enterprise. Petitioner subsequently filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate, set-aside, or correct his sentence. Petitioner has since filed a number of supplemental pleadings in support of this motion. The Government filed a motion to dismiss the petition (as amended) in its entirety.
On December 2, 1998, the Government filed an indictment charging Petitioner in connection with a narcotics conspiracy based in Utica, New York. On March 17, 1999, Petitioner was tried on seven counts: engaging in a continuing criminal enterprise ("CCE"); conspiracy to distribute cocaine, cocaine base, and marijuana; possession with intent to distribute cocaine; possession with intent to distribute cocaine base; and conspiracy to commit money laundering.*fn1 After a jury trial, Petitioner was found guilty on all counts. During sentencing, the trial court placed Petitioner at a base offense level of 38 with a level II criminal history. The court applied a four-point enhancement for Petitioner's leadership role in the CCE and another two-point enhancement for the use of a minor during the course of a drug trafficking crime. This resulted in a total offense level of 44, which was reduced to 43, the maximum level under the United States Sentencing Guidelines. Based on this calculation, Petitioner was sentenced to life imprisonment on the CCE and the substantive cocaine base charges. In addition, Petitioner was sentenced to 20 years each on the substantive cocaine counts and the conspiracy to commit money laundering count. The narcotics conspiracy was vacated as a lesser included offense of the CCE conviction.
After trial, Petitioner filed an appeal to the Court of Appeals for the Second Circuit.*fn2 On appeal, Petitioner claimed that the trial court erroneously failed to instruct the jury that it was required to find three prior violations of Title 21 to convict him on the CCE count. Petitioner also contended that there was insufficient evidence of the quantity of drugs involved in the conspiracy to support a base offense level of 38. Likewise, Petitioner asserted that because drug quantity was neither charged nor submitted to the jury, Petitioner's sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), which entitles a criminal defendant to notice and jury determination of every element of a charged crime, id. at 476--77. Petitioner further argued that the trial court erroneously enhanced his offense level for Petitioner's use of minors in the course of the conspiracy and incorrectly calculated his criminal history by including a conviction for conduct that was part of the instant offense.
The Second Circuit affirmed Petitioner's conviction. United States v. Jennings, 29 Fed. App'x. 645 (2d Cir. 2002). The Second Circuit found that any error in the jury instructions was harmless because the jury unanimously agreed upon four separate violations of the drug laws. Id. at 5. The Circuit Court also found that the trial court correctly calculated a base level of 38 because Petitioner was responsible for 29,240 kilograms of marijuana in documented undercover buys and the estimated quantities provided by several confidential informants pushed the overall amount above the 30,000 kilograms required for a base level of 38. Id. at 5--6. The Second Circuit explained that, to fall below this threshold, it would have to discredit all informant testimony, which it was unwilling to do. Id. at 6. The Circuit Court also held that the two-point enhancement for use of a minor was correct because, even if the enhancement did not properly apply to the CCE count, it would nevertheless attach to the cocaine and cocaine base convictions. Id. Finally, the Second Circuit affirmed the use of Petitioner's prior conviction to place him in Criminal History Category II. Id.
In the instant motion, Petitioner alleges six grounds in support of his motion to vacate, set-aside, or correct his sentence: (1) that the trial court's jury instructions for the CCE charge were erroneous (Mot. to Vacate at 6); (2) that the trial court erred in determining the base offense level, id. at 9; (3) that the trial court erred in determining Petitioner's criminal history, id. at 14; (4) that the trial court should have applied certain amendments to the Sentencing Guidelines to reduce his sentence, id. at 9; (5) that the Government failed to meet its burden of proving every element of the CCE count, id. at 1; (6) that Petitioner was deprived of his constitutional right to the effective assistance of counsel, id. at 16; and (7) that the trial court imposed life sentences in violation of the Supreme Court's recent ruling in United States v. Booker, 543 U.S. 220 (2005) (Mot. Requesting Leave to File Third Supp. Pl'g at 2).
The first three grounds were presented on appeal to the Second Circuit and rejected by that court. Jennings, 29 F.App'x 645 (2d Cir. 2002). Thus, these issues are not properly before this Court. A motion for habeas corpus relief pursuant to 28 U.S.C. § 2255 is not a substitute for direct appeal. Sapia v. United States, 433 F.3d 212, 217 (2d Cir. 2005). A habeas motion also is not an opportunity for a second bite at the apple for matters raised and considered on direct appeal. United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001). Accordingly, this opinion addresses only the final four grounds Petitioner raises in his motion, treating grounds 5 and 6 concurrently.
A. Whether the Court should have Applied
Amendments 505 and 591 to the Sentencing Guidelines to reduce Petitioner's sentence.
Petitioner argues that Amendment 505 to the Sentencing Guidelines, effective November 1, 1994, should apply to reduce his sentence. (Mot. to Vacate at 9). Amendment 505 caps the maximum drug level under the Guidelines to level 38. Amendment 505, Appendix C (Volume I), Amendments to the Guidelines Manual (Nov. 2005); see U.S. v. Desdune, No. 96-2367, slip op. at 1 (2d Cir. 1996). Petitioner argues that this Court should apply Amendment 505 to reduce Petitioner's base level to 38. (Mot. at 9). The Court rejects this argument. The Court calculated Petitioner's base level to be 38. The offense level was increased through the application of enhancements. Although Amendment 505 places a ceiling on the base level, it does not foreclose increasing a defendant's sentence through enhancements. See U.S. v. McBride, 283 F.3d 612 (3d Cir. 2002) (applying Amendment 505 to reduce defendant's sentence but not disturbing enhancement for possession of a firearm).
Petitioner also asserts that Amendment 591 should apply to reduce his sentence by removing the enhancement for use of a minor. (Mot. at 11). Amendment 591, effective Nov. 1, 2000, requires that a court's initial selection of a particular offense guideline must be based only on the statute under which a defendant is convicted, rather than judicial findings of conduct such as drug quantity. Amendment 591, Appendix C (Volume II), Amendments to the Guidelines Manual (Nov. 2005); see U.S. v. Rivera, 293 F.3d 584 (2d Cir. 2002). Petitioner argues that the trial court failed to apply Amendment 591 and thus this Court should vacate the two-level enhancement of his sentence on the CCE count. (Mot. at 11). Petitioner correctly indicates that the enhancement under Sentencing Guidelines section 2D1.2, governing conspiracy to commit drug offenses involving underage individuals, only applies if Petitioner is convicted of certain offenses. See United States Sentencing Comm'n, Guidelines Manual, § 2D1.2, Statutory Provisions (Nov. 2005)(indicating that section 2D1.2 only applies if defendant is convicted of 21 U.S.C. §§ 859, 860, or 861). Petitioner was not convicted of those offenses. However, the Court did not rely on section 2D1.2 and instead used the enhancement under section 3B1.4, governing use of ...