The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Petitioner, Manaman Grant ("Petitioner"), seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255("§ 2255") on the ground that he was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution.
On July 17, 2003, an indictment was filed against Petitioner, Manaman Grant. Count one charged that Petitioner had conspired from in or about 1996 up to and including May 2003 to distribute and to possess with intent to distribute more than one kilogram of heroin and more than five kilograms of cocaine; count two charged that Petitioner had distributed and possessed with intent to distribute approximately three kilograms of heroin in January 2003; count three charged that Petitioner had distributed and possessed with intent to distribute approximately ten kilograms of cocaine in January 2003; and count four charged that Petitioner committed money laundering.*fn1
On January 9, 2004, Petitioner, represented by trial counsel, pled guilty to the indictment pursuant to a plea agreement with the Government (Plea Agreement ("Plea"), dated Jan. 5, 2004.) The plea agreement stipulated that Petitioner was responsible for "the distribution of approximately 7 kilograms of heroin and 15 kilograms of cocaine," (Plea at 2.), and that, based on these amounts, Petitioner's stipulated Guidelines range was 135 to 168 months imprisonment. (Id. at 5.) Petitioner also agreed to forfeit proceeds from his drug dealing of approximately $1,000,000 and the proceeds from his money laundering of $190,000. (Id. at 5-6; Plea Transcript, dated January 9, 2004 ("Plea Tr.") at 23.) Petitioner further agreed that he "[would] not file a direct appeal from, nor otherwise litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range" of 135-168 months. (Plea at 5.)
On September 28, 2004 Petitioner, as a first offender, was sentenced to 135 months in prison on counts one, two and three, and a concurrent sentence of 120 months on count four to be followed by five years of supervised release and a mandatory special assessment of $400 - $100 on each count. (Sentencing Transcript ("Sentencing Tr."), dated September 28, 2004 at 23.) The Court also notified the Defendant as follows:
Since there was a plea agreement, [your attorney] probably cannot file a notice of appeal on your behalf, Mr. Grant. So if you wish to file a notice of appeal you must do it yourself. All you have to do is write a letter to the court, the Southern District of New York, 500 Peal Street, saying you wish to appeal your sentence or your conviction, and that is sufficient. But if you don't do it within ten days of today, you waive your right, and the Court of Appeals won't hear your appeal. So the notice of appeal has to be received within that ten-day period. So if you wish to do that, please do it yourself. Don't rely on [your attorney] to do it for you.
(Id. at 26.) Neither Petitioner nor his trial attorney filed a notice of appeal.
On October 24, 2005, Petitionerfiled this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn2 On March 23, 2006, the Government filed its Opposition. Petitioner filed a Rebuttal to the Government's Reply on May 1, 2006 ("Pet.'s Rebuttal").
On July 28, 2006, the Court ordered an evidentiary hearing to determine whether Petitioner had instructed his attorney to file a notice of appeal.*fn3 See Grant v. United States, 05 Civ. 8994, dated July 28, 2006. Daniel Meyers, Esq., was appointed to represent Petitioner for purposes of the hearing, which was held on January 25, 2007. The Government filed a post-hearing brief on February 26, 2007, Petitioner responded on March 13, 2007. For the reasons that follow Petitioner's motion is denied.
Petitioner's only legal basis for challenging his conviction and sentence is that he received ineffective assistance of counsel from the attorney who represented him during both the plea and sentencing hearings. Petitioner claims that this ineffective assistance of counsel affected (1) his guilty plea, (2) his sentence and (3) his failure to file a direct appeal.
Petitioner proceeded pro se in submitting his petition and brief.*fn4 Accordingly, his submission will be "liberally construed in his favor," Simmons v. Abruzzo, 49 F. 3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), and read to "raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.2d 75, 79 (2d Cir. 1996) (internal citation omitted).
1. Ineffective Assistance Affecting Petitioner's Plea
Petitioner claims that, due to ineffective assistance of trial counsel, his plea was not knowing and voluntary. He also alleges that his attorney's failure to file a bail application, or a motion to suppress constitutes ineffective assistance. (See Pet.'s Memorandum of Law, dated October 24, 2005 ("Pet's. Mem.") at 7.)
To establish a claim for ineffective assistance of counsel, a petitioner must demonstrate (1) that his counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The performance of counsel is deficient if it "fell below an objective standard of reasonableness" under "prevailing professional norms." Id. at 688. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. To show prejudice, a defendant who pleads guilty ...