The opinion of the court was delivered by: Glasser, United States Senior District Judge
Frantz Bouloute ("Bouloute" or "Petitioner") moves to vacate, set aside, or correct his sentence from his 2005 conviction in this Court pursuant to 28 U.S.C. § 2255 ("Section 2255"). In 2003, Bouloute was indicted for conspiracy to import cocaine pursuant to 21 U.S.C. § 963, importation of cocaine pursuant to 21 U.S.C. § 952(a), and attempted possession with intent to distribute cocaine pursuant to 21 U.S.C. § 846. The jury found Bouloute guilty on all three counts on January 27, 2005.
The Pre-Sentence Report prepared by the United States Probation Department found Bouloute responsible for 30.19 kilograms of cocaine, the full amount of the drugs involved in the conspiracy, which corresponded to a base offense level of 34 under the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G."). At sentencing on May 2, 2005, Bouloute's counsel stated that he had reviewed the Pre-Sentence Report, and that he would not seek any amendments or deletions with respect to that Report. Tr. at 2. However, Bouloute's counsel urged the Court to sentence Bouloute below the applicable Guidelines range, which was 151 to 188 months, because Bouloute was a "minor participant" in the scheme to import and distribute cocaine as compared to his co-conspirators. Tr. at 4-6. Finding that Bouloute was an active participant in the scheme, and after discussing the sentencing factors found in 18 U.S.C. § 3553(a), the Court on May 2, 2005, sentenced Bouloute to 130 months imprisonment to run concurrently on each of the three counts of which he was convicted, to be followed by five years of supervised release, and a $300 special assessment. Tr. at 8-10. The sentence imposed was ten months higher than the mandatory statutory minimum required by 21 U.S.C. §§ 960(b)(1)(B)(ii) and 841(b)(1)(A)(ii)(II).
Bouloute filed a timely appeal of his sentence, arguing that it was unreasonable because this Court failed to consider all the sentencing factors enumerated in 18 U.S.C. § 3553(a), and because the sentence was greater than necessary to do justice. Affirming this Court's sentence, the Second Circuit found that the 130 month sentence was selected "precisely because, after considering all relevant factors, [the district court] concluded that a 151-month sentence was greater than necessary to do justice in the case." United States v. Bouloute, 185 Fed. Appx. 102, 106 (2d Cir. 2006).
Bouloute's habeas petition argues that this Court violated his due process rights when it sentenced him based on what he alleges is "erroneous and unsubstantiated information contained in the Pre-Sentence Investigation Report," and that he suffered from ineffective assistance of counsel when his attorney failed to object to the Court's miscalculation of the offense level under U.S.S.G. § 1B1.3. Pet. Br. at 1. Essentially, Bouloute asserts that, in calculating his base offense level, the Court should have made an individualized finding of the amount of cocaine he was personally responsible for conspiring to import instead of attributing to him the entire amount of the cocaine seized. He claims that, because "the scheme to import cocaine . . . had many participants all expecting a share of the drugs for their role in the offense," he should only be responsible for the portion of drugs he expected to receive as part of the conspiracy. Pet. Br. at 5.
For the reasons explained below, and based on this Court's findings that Bouloute was an active participant in the conspiracy and that he was found guilty of two substantive counts of direct involvement in the importation, the sentence was correct pursuant to U.S.S.G. § 1B1.3. Therefore, his counsel's failure to object did not constitute ineffective assistance of counsel.
Section 2255 permits a convicted person in federal custody to petition the sentencing court to vacate, set aside, or correct a sentence. Collateral relief under Section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). To obtain collateral relief, the petitioner must prove by a preponderance of the evidence that his sentence was imposed unlawfully. Rodriquez v. United States, 05 CV 5704 (CPS), 2006 U.S. Dist. LEXIS 46321, at *5 (E.D.N.Y. July 10, 2006).
Petitioner contends that: (1) the sentence imposed was procedurally unreasonable because the Court unconstitutionally and erroneously miscalculated his base offense level, and by extension the applicable sentencing range, and (2) he received ineffective assistance of counsel based on his attorney's failure to object to or correct this miscalculation. He frames the issues as separate claims for review under Section 2255. Petitioner, however, failed to raise the constitutional challenge on direct appeal. A procedural default of even a constitutional issue will bar review of Section 2255 claims unless a petitioner can show cause excusing the default and actual prejudice that resulted from the error. Napoli v. United States, 32 F.3d 31, 37 (2d Cir. 1994). Because Bouloute has not shown cause or prejudice, the Court may not separately consider the constitutional challenge. The Court may, in any event, examine Bouloute's ineffective assistance of counsel claim, which is premised on the alleged constitutional error. See Massaro v. United States, 538 U.S. 500, 505 (2003) (holding that a petitioner may raise a claim of ineffective assistance of counsel on a habeas petition even if he has failed to do so on direct appeal).
B. Ineffective Assistance of Counsel
To succeed on an ineffective assistance of counsel claim, a defendant must prove: "(1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." United States v. Jones, 482 F.3d 60, 76 (2d Cir. 2006) (citing Strickland v. Wash., 466 U.S. 668, 687 (1984)). To show that an attorney's performance is deficient, a defendant must establish that his attorney's conduct fell "outside the wide range of professionally competent assistance," and show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 690, 694. The Supreme Court has taught courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. at 689.
As a threshold matter, this Court notes that even if Bouloute's challenge to his five year sentence for the conspiracy count were successful, his prison term would be unaffected because he also received a five year sentence for two substantive counts that run concurrently with his conspiracy sentence, and he does not challenge the validity of the sentences for those two counts. See United States v. Moreno, No. 96-1758, 1998 U.S. App. LEXIS 1206, at *4 (2d Cir. Jan. 27, 1998). Regardless, considering Bouloute's argument as to the conspiracy count alone, it fails because there was no constitutional ...