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Alcantara v. United States

April 9, 2008


The opinion of the court was delivered by: Shirley Wohl Kram, U.S.D.J.


This case comes before the Court on a motion for relief under 28 U.S.C. § 2255. The petitioner, Diomedes Alcantara ("Alcantara"), argues that the Court should re-sentence him because: (1) his trial counsel provided ineffective assistance, and (2) the Court's original sentence violated United States v. Booker, 543 U.S. 220 (2005). For the reasons that follow, the Court denies the petitioner's requests for relief in their entirety.


On August 17, 1999, a grand jury sitting in the Southern District of New York returned a three-count indictment against Alcantara and his coconspirators (the "New York Indictment"). Count One of the New York Indictment charged Alcantara with engaging in a conspiracy to distribute, and possession with intent to distribute, cocaine, in violation of 21 U.S.C. § 846. At the time the New York Indictment issued, Alcantara was in federal custody in Florida on five-year-old charges of conspiracy to import and distribute large quantities of marijuana, and bail jumping (the "Miami Indictments"). In connection with the Miami Indictments, Alcantara retained Arturo V. Hernandez ("Hernandez") to represent him. Alcantara did not initially retain counsel to represent him on the New York Indictment.

In early February 2000, Alcantara pleaded guilty to the charges set forth in the Miami Indictments. After an unfruitful application to transfer to the Southern District of New York his sentencing on the Miami Indictments, Alcantara was sentenced in the Southern District of Florida principally to 85 months' imprisonment. In the meantime, federal officials transported Alcantara to New York in March 2000 to answer the New York Indictment. There, Hernandez represented Alcantara at his arraignment and initial conference on March 29, 2000. Nevertheless, on April 10, 2000, Hernandez withdrew from representing Alcantara, see 99 Cr. 805 (SWK), Dkt. No. 41, who remained without counsel until James Neville, Esq. ("Neville") entered a notice of appearance on April 26, 2000, see 99 Cr. 805 (SWK), Dkt. No. 42.

In September 2000, Neville withdrew from representing Alcantara due to a conflict of interest. See 99 Cr. 805 (SWK), Dkt. No. 48. Alcantara then retained new counsel, Greg Cooper, Esq. ("Cooper"). At or around that time, the Government offered Alcantara a plea agreement with a stipulated guidelines sentencing range of 188 to 210 months' imprisonment (the "Plea Offer"). Alcantara rejected the Plea Offer, opting instead on October 18, 2000, to plead guilty without the benefit of a cooperation agreement to Count One of the New York Indictment. At his plea allocution, Alcantara admitted that he was responsible for the transportation of approximately 125 kilograms of cocaine from New Orleans to New York, making him eligible for a sentence of 292 to 325 months' imprisonment.

Shortly after his allocution, Alcantara retained a fourth attorney, Howard Leader, Esq. ("Leader"). Leader unsuccessfully attempted to resuscitate the Plea Offer. Moreover, in a written submission to the Court dated April 4, 2002, Leader argued that the Court should impose a sentence in keeping with the Plea Offer. Alcantara's fifth trial counsel, Lawrence Ruggiero, Esq. ("Ruggiero") expatiated upon this argument in a written submission to the Court dated August 29, 2002. In that submission, Ruggiero contended that Alcantara should be sentenced to a term of imprisonment within the stipulated guidelines set forth by the Plea Offer, which Alcantara had rejected only because of the ineffectiveness of prior counsel. The Court rejected this argument, sentencing Alcantara on June 18, 2003, to a term of 292 months' imprisonment, to run concurrently with his 85-month sentence on the Miami Indictments.

Thereafter, Alcantara filed a notice of appeal from his conviction and sentence on the New York Indictment. Ruggiero, who served as Alcantara's appellate counsel, submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967), contending that there existed no non-frivolous issues for appeal. On June 14, 2004, the Second Circuit summarily affirmed Alcantara's conviction and sentence. On June 14, 2005, Alcantara filed the instant motion under 28 U.S.C. § 2255 to vacate his sentence on the New York Indictment.


Collateral relief under 28 U.S.C. § 2255 is available "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)). Here, Alcantara claims that his trial counsel*fn1 was constitutionally ineffective in violation of his Sixth Amendment rights, inasmuch as counsel failed to represent him adequately in plea negotiations. In addition, Alcantara argues that his sentencing violated his Sixth Amendment rights as set forth in Booker, insofar as the Court found drug-quantity facts that were not determined by a jury or admitted by the defendant. In the sections that follow, the Court addresses these claims and finds them to be wholly without merit. Thus, the Court dismisses Alcantara's petition under 28 U.S.C. § 2255 and denies him a certificate of appealability.

A.The Ineffectiveness Claims

Although Alcantara did not raise his ineffectiveness claims on direct appeal, the Court will consider the merits of these claims on the instant petition for collateral review. See Massaro v. United States, 538 U.S. 500, 504 (2003) (holding that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.").*fn2 To make out a claim for ineffective assistance of counsel, a defendant must show that: (1) his counsel's conduct fell below an objective standard of reasonableness under prevailing professional norms; and (2) his counsel's deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984). This "standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on [it]." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Indeed, in reviewing a claim for ineffective assistance, courts generally "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

In order to carry the hefty burden prescribed in Strickland and its progeny, a defendant must, inter alia, "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. Here, Alcantara alleges that his counsel's representation during the plea negotiation process was unreasonable on two fundamental grounds. First, Alcantara claims that Hernandez unreasonably delayed the resolution of the Miami Indictments and inexplicably failed to timely seek the consolidation of those indictments with the more serious New York Indictment. (Pet. 5-8, 11-13.) Alcantara posits that Hernandez engaged in dilatory tactics in an effort to enlarge his fee, and thus, that Hernandez labored under an actual conflict of interest. (Pet. 10.) Alcantara further argues that Hernandez's tardy resolution of the Miami Indictments and belated attempt to consolidate them with the New York Indictment prevented him from securing an advantageous plea deal because, by the time he arrived in New York, the information he possessed was largely stale. (Pet. 6, 10.) Second, Alcantara alleges that his counsel obstructed his desire to accept the Plea Offer, which would have significantly reduced the Guidelines range applicable to his offense.*fn3 (Pet. 5-6, 9, 13.)

For the reasons that follow, the Court finds that Alcantara has failed to show professionally unreasonable conduct either in Hernandez's alleged delays or in his counsel's purported obstruction of his acceptance of the Plea Offer. Moreover, the Court holds that Alcantara's counsel did not perform in a professionally unreasonable manner on the totality of the record before it. Thus, the Court determines that Alcantara has ...

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