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Sturgis v. United States

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


July 15, 2008

JAMES STURGIS, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT

The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Now before the Court is the pro se petitioner' s application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below , the application is denied.

28 U.S.C. § 2255

Section 2255 provides, in relevant part, as follow s: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence w as imposed in violation of the Constitution or law s of the United States, or that the court w as w ithout jurisdiction to impose such sentence, or that the sentence w as in excess of the maximum authorized by law , or is otherw ise subject to collateral attack, may move the court w hich imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255. The Court may dismiss a section 2255 petition w ithout conducting a hearing if the petition and the record " conclusively show " that petitioner is not entitled to relief. 28 U.S.C. § 2255. As w ill be seen below , Petitioner' s arguments and submissions do not merit an evidentiary hearing.

BACKGROUND

For purposes of the instant application, it is sufficient to note the follow ing facts. The Court first turns its attention to the circumstances leading to Petitioner' s September 15, 2004 plea to, and his January 24, 2005 sentence for, the crime of possession w ith intent to distribute cocaine base, w hich plea and sentence are the subjects of this petition.

On December 4, 1987, Petitioner James Sturgis (" Petitioner" ) w as indicted by a Grand Jury in Monroe County, New York, Indictment 886/87, for the crime of Criminal Possession of a Controlled Substance in the Third Degree, in violation of New York Penal Law (" Penal Law " ) § 220.16(1), w hich provides, in relevant part: " A person is guilty of criminal possession of a controlled substance in the third degree w hen he know ingly and unlaw fully possesses . . . a narcotic drug w ith intent to sell it." In that regard, the indictment alleged that on or about October 16, 1987, Petitioner possessed heroin w ith the intention of selling it.*fn1

On March 10, 1988, Petitioner w as indicted by a Grand Jury in Monroe County, New York, Indictment 182/88, for the crime of Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law § 220.16(1) for possessing, w ith intent to sell, cocaine and heroin. In that regard, the indictment alleged that on or about December 2, 1987, Petitioner possessed cocaine and heroin w ith the intention of selling the same.*fn2

On June 23, 1988, Petitioner pled guilty to Attempted Criminal Possession of Controlled Substance in the Third Degree, in satisfaction of Indictment 886/87. The same day, Petitioner also pled guilty to Attempted Criminal Possession of a Controlled Substance in the Third Degree, in satisfaction of Indictment 182/88. On September 8, 1988, Petitioner w as sentenced as a second felony offender to an indeterminate sentence of imprisonment of three-to-six years on each conviction, w ith the sentences to run concurrently.

On January 22, 1991, Petitioner w as convicted, upon a plea of guilty, of Conspiracy to Distribute Heroin, a felony. He w as subsequently sentenced to a term of imprisonment of 24 months.

In addition, Petitioner has numerous other convictions, including convictions for attempted possession of a controlled substance, operating a vehicle w hile license suspended, criminal possession of a controlled substance in the seventh degree, promoting prison contraband, criminal possession of a w eapon in the third degree, and aggravated unlicensed operation of a motor vehicle, all of w hich pre-date the instant offense of conviction.

Turning now to the subject offense, on August 11, 2004, Petitioner w as stopped by police in Brighton, New York, for driving w ithout a seatbelt. Police arrested Petitioner after discovering that he w as driving w ith a suspended license. Subsequently, police discovered 45 baggies of crack cocaine in Petitioner' s car, having an aggregate w eight of 6.530 grams, and over $800 in cash. Petitioner subsequently gave a statement to police, in w hich he admitted that he possessed the crack cocaine w ith the intent to distribute it. On September 15, 2004, in the United States District Court for the Western District of New York, Petitioner w aived indictment and pled guilty before the Honorable Michael A Telesca, United States District Judge, pursuant to a w ritten plea agreement, to a one-count information charging him w ith possession w ith intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), for w hich the maximum statutory sentence w as thirty years. Specifically, Petitioner admitted that on or about August 11, 2004, he know ingly, intentionally, and unlaw fully possessed 45 plastic bags of cocaine base, w ith the intent to distribute them in the Western District of New York. (Plea Agreement at 4). It is notable that, as part if the plea agreement, Petitioner was allowed to plead to an information with an unspecified drug quantity. Otherwise, based on the weight of the cocaine base (6.53 grams), and pursuant to 21 U.S.C. § 841(b)(1)(B), Petitioner would have been subject to a mandatory minimum term of imprisonment of ten years and a maximum of life imprisonment.

During his plea, Petitioner stated that he had review ed the plea agreement w ith his attorney, Assistant United States Public Defender Roxanne Mendez-Johnson (" Mendez-Johnson" ), and that Mendez-Johnson had explained the agreement to him. (Plea Minutes at 7). Petitioner further stated that no one had " threatened or forced" him to enter into the plea agreement. (Id.). Judge Telesca found, based on Petitioner' s answ ers to questions put to him by the Court, that Petitioner w as " fully competent and capable of entering an informed plea," and that Petitioner w as " aw are of the nature of the charges and the consequences of his plea of guilty." (Id. at 9). During the plea allocution, Petitioner also agreed that he possessed all 45 bags of cocaine base w ith the intent of distributing them:

THE COURT: I' m going to ask the United States Attorney to give me a summary of the evidence that they have against you. Evidence that they w ould introduce if there w ere a trial in this case. I' ll ask you to listen carefully, because after he gives me the summary I' ll ask you if w hat he states is correct. May I hear from the Government?

MR. TAFFE: Yes , your Honor. If the matter proceeded to trial, the evidence w ould show on or about August 11th of this year w ithin the Western District of New York in Brighton the Defendant w as found w ith 45 plastic bags of cocaine base. The Defendant understands that he possessed it w ith the intent to transfer or distribute it to another and that all occurred w ithin the Western District of New York.

THE COURT: Is w hat he states correct?

THE DEFENDANT: Yes, sir. (Plea Transcript at 7).

As part of the plea agreement, Petitioner acknow ledged having three prior felony drug trafficking convictions, w hich included the tw o aforementioned New York State convictions for Attempted Criminal Possession of a Controlled Substance in the Third Degree, as w ell as the federal conviction for Conspiracy to Distribute Heroin. Based on these prior convictions, Petitioner agreed that, under the advisory Federal Sentencing Guidelines, he w as a Career Offender, Guideline § 4B1.1(b)(B), w ith a criminal history category VI. In that regard, § 4B1.1(b)(B) states, in relevant part:

A defendant is a career offender if (1) the defendant w as at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offence; and (3) the defendant has at least tw o prior felony convictions of either a crime of violence or a controlled substance offense. (Emphasis added). The Sentencing Guideline Manual defines a " controlled substance offense" as an offense under federal or state law , punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) w ith intent to manufacture, import, export, distribute, or dispense.

Guideline § 4B1.2(b).

Petitioner further agreed that, under the sentencing guidelines, his offense level w as 34, although, under the agreement, the Government agreed not to oppose a three-level reduction for acceptance of responsibility, bringing Petitioner' s adjusted offense level dow n to 31. The parties further agreed that w ith a offense level of 31 and a criminal history of VI, Petitioner' s sentencing range under the advisory guidelines w as 188 -235 months, and Petitioner agreed that he w ould not appeal or collaterally attack a sentence w ithin that range.

On November 8, 2004, Respondent filed a motion for a dow nw ard departure, based on " Extraordinary Medical Circumstances and a Convergence of Factors." In that regard, Petitioner argued that the court should impose a sentence below the recommended guideline range, based on his unusual family history, and on the fact that he suffered from high blood pressure, liver disease, enlarged lymph nodes, edema, degenerative disc disease, umbilical hernia, asthma, sleep apnea, enlarged heart, arthritis, obesity, anxiety and depression.

Subsequently, Judge Telesca transferred the case to the undersigned. On January 24, 2005, Petitioner appeared before the Court for sentencing. At that time, the Court indicated that a dow nw ard departure w as not w arranted under the advisory guidelines. The Court review ed Petitioner' s criminal record, and remarked, " [t]o say it' s lengthy is an understatement . . . . [I]f ever there w as anyone w ho could be characterized as a career offender in my mind, it' s you." (Sentencing Minutes at 11, 13). Subsequently, the Court sentenced Petitioner to, inter alia, a term of imprisonment of 188 months. (Id. at 20). Despite receiving a sentence that w as w ithin the range contemplated by the Plea Agreement, Petitioner filed an appeal. How ever, on September 7, 2005, the United States Court of Appeals for the Second Circuit dismissed the appeal, finding that " the Appellant know ingly and voluntarily w aived his right to appeal." (See, Second Circuit Mandate, Docket [#20], 05-0581-cr).

On December 20, 2006, Petitioner, proceeding pro se, filed a petition [#24] pursuant to 28 U.S.C. § 2255. The petition alleged that: 1) the court erred by accepting Petitioner' s guilty plea w ithout first having a competency examination, w hich it should have done based on Petitioner' s history of substance abuse and based on the fact that Petitioner w as taking various prescription medications; 2) Petitioner' s tw o prior state court felony convictions under New York Penal Law § 220.16 w ere not " controlled substance offenses" ; 3) Petitioner' s tw o prior state court felony convictions under New York Penal Law § 220.16 should have been treated as a single conviction for purposes of sentencing; 4) the 45 bags of crack cocaine seized from Petitioner should not have been used to calculate his base offense level, because the drugs w ere for his personal use; and 4) trial and appellate counsel w ere ineffective, because they failed to request a competency hearing, failed to investigate Petitioner' s prior state court drug convictions, and failed to argue that the drugs seized from Petitioner w ere for his personal use.

On February 5, 2007, Petitioner filed an Amended Petition, w hich is now the operative petition in this action. The Amended Petition essentially re-casts all of the allegations in the original petition as claims for ineffective assistance of counsel. In addition, the Amended Petition alleges that trial counsel coerced Petitioner into pleading guilty. More specifically, Petitioner alleges that during plea negotiations, his attorney failed to properly investigate his criminal history, w hich resulted in him being mistakenly classified as a career offender pursuant to Guideline § 4B1.1(b)(B). According to Petitioner, his attorney w as deficient because she failed to discover that his tw o prior state-court convictions for Attempted Criminal Possession of Controlled Substance in the Third Degree involved " simple possession," not possession w ith intent to distribute.*fn3 He also alleges that his attorney w as ineffective for failing to object to the calculation of his base offense level under the advisory guidelines, on the grounds that the drugs w hich he possessed w ere for his ow n consumption, not for distribution. Further, he alleges that his attorney had a conflict of interest, because of w hich, she " threatened and coerced" him into pleading guilty, by telling him that he w ould " definitely" receive a sentence of life imprisonment if convicted after trial. (Amended Petition at 16). And finally, he alleges that his attorney w as ineffective for failing to request a competency hearing, based upon Petitioner' s past drug use. (Amended Petition at 7) (" [A] competency hearing should have been requested by trial counsel after know ing in advance that defendant w as a substance abuser and had consumed prescribed medications on the date he w as coerced and threatened to enter [sic] by trial counsel." ).*fn4

DISCUSSION

The Petition is Untimely The Court finds at the outset that Petitioner' s application must be denied as untimely.*fn5 Motions under 28 U.S.C. § 2255 "may be filed within one year from the date on which the judgment of conviction becomes final," and "a judgment of conviction becomes final for purposes of § 2255 when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Burrell v. U.S., 467 F.3d 160, 163-164 (2d Cir. 2006) (citations and internal quotation marks omitted), cert. den. 127 S.Ct. 2031 (2007). A petition for review on certiorari must be filed "within 90 days after entry of the judgment." U.S. SUP. CT. RULE 13.

Here, the Second Circuit entered its judgment dismissing Petitioner's direct appeal on September 7, 2005. Petitioner then had 90 days, or until December 6, 2005, to file a petition for review on certiorari. Petitioner did not petition for such review, and accordingly, his conviction became final on December 6, 2005. Thereafter, Petitioner had one year, or until December 6, 2006, to file a motion under 28 U.S.C. § 2255. However, Petitioner did not file the instant action until December 20, 2006, which is two weeks beyond the one-year deadline. Nor can Petitioner benefit from the prison "mailbox rule," since his application was signed and dated on December 11, 2006, beyond the limitations deadline.

Petitioner contends that the limitations period should be equitably tolled. However, there is no merit to Petitioner's argument. To qualify for equitable tolling, a "petitioner must establish that 'extraordinary circumstances prevented him from filing his petition on time,' and that he 'acted with reasonable diligence throughout the period he seeks to toll.'" Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). In this case, on February 12, 2007, the Court issued a Decision and Order [#25], directing Petitioner to explain how his petition was timely. In response, on March 1, 2007, Petitioner filed an affidavit, in which he essentially claims that his attorney, Mendez-Johnson, misled him into believing that she had filed a petition for certiorari to the United States Supreme Court, and that, after waiting more than a year without hearing anything from the Supreme Court, he decided to take matters into his own hands and file a Section 2255 petition. Specifically, he states that in September 2005, he asked Mendez-Johnson to file a petition for certiorari to the United States Supreme Court. He further states that, because counsel informed Petitioner as of early December, 2006, that she has not yet heard from the Supreme Court on her filings, then Petitioner assumed that he actually did not have to do anything until he hears again from counsel. The only reason Petitioner went ahead and filed the pending section 2255 motion which was dated December 11, 2006, was because he grew tired of waiting for counsel and the Supreme Court to give him the go-ahead. (Petitioner's Timeliness Response [#27] at 2-3). This attempt to establish "extraordinary circumstances" is wholly incredible. However, more importantly, it is flatly contradicted by Petitioner's earlier sworn statements, contained in both his original Section 2255 Petition [#21] and his Amended Petition [#36], in which he stated that, except for his direct appeal to the Second Circuit, he had not taken any further appeal or filed "any petitions, applications, or motions with respect to this judgment in any federal court." (Id. at 2). Accordingly, the Court declines to give any weight to Petitioner's belated contention that he was misled into believing that a petition for certiorari had been filed.*fn6 Moreover, even assuming that Petitioner could establish extraordinary circumstances, which he cannot, the Court finds that he did not act with reasonable diligence. Accordingly, this action must be dismissed as untimely.

Lastly, on this point, even assuming arguendo that Petitioner's original § 2255 petition w as somehow timely, that petition contained no allegation that defense counsel had threatened or coerced him into pleading guilty. Petitioner did not make that allegation until he filed his proposed Amended Petition on February 5, 2007. The original petition gave no hint of such a claim, and accordingly, Petitioner' s claim that defense counsel coerced him into pleading guilty w ould not relate back to the filing of the original petition. See, Fama v. Commissioner of Correctional Services, 235 F.3d 804, 815 (2d Cir. 2000) (" In determining w hether the claim arises out of the same conduct or occurrence [set forth in the original pleading], the pertinent inquiry is w hether the original complaint gave the defendant fair notice of the new ly alleged claims." ) (citation and internal quotation marks omitted).

The Ineffective Assistance of Counsel Claims Lack Merit Further, even assuming that Petitioner' s claims w ere timely, they nevertheless lack merit. To establish ineffective assistance of counsel, petitioner must meet tw o requirements:

First, he must demonstrate that his attorney' s performance ' fell below an objective standard of reasonableness' under the ' prevailing professional norms.' Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must show a ' reasonable probability' that absent counsel' s error, the outcome of the proceeding w ould have been different. Id. at 687-88.

Vadas v. U.S., 527 F.3d 16, 20 (2d Cir. 2007) (footnote omitted). Applying this standard to the facts of the instant case, the Court finds no merit to Petitioner' s claims of ineffectiveness.

Petitioner Has Not Show n That He Was Coerced Into Pleading Guilty At the outset, the Court finds that counsel w as not ineffective for advising Petitioner to plead guilty, or for allegedly " coercing" him to do so. In that regard, as mentioned above, Petitioner alleges that his attorney improperly pressured him into pleading guilty under the plea agreement, by advising him that unless he did so, the Government w ould indict him for possessing the entire 6.53 grams of cocaine base, and that if he w ere convicted, he w ould receive a life sentence, pursuant to 21 U.S.C. § 841(b)(1)(B). How ever, this claim of ineffective assistance of counsel is contradicted by Petitioner' s sw orn plea allocution, in w hich he stated that he understood the plea agreement and the rights that he w as giving up by pleading guilty, and in w hich he denied that he w as threatened or coerced into pleading guilty. See, U.S. v. Applebaum, No. 94 CR 209 (AGS), 1995 WL 723348 at * 10 (S.D.N.Y. Dec. 7, 1995) (" It is w ell settled that a defendant' s statements at a plea allocution carry a strong presumption of veracity, and are conclusive absent credible reasons justifying departure from their apparent truth." ) (citations and internal quotation marks omitted), aff' d 101 F.3d 686 (2d Cir. 1996). Nor has Petitioner show n that counsel' s advice or professional opinion amounted to coercion. See, Id. (" [W]here, as here, a law yer recommends in the exercise of his professional judgment, that his client plead guilty, and the client relies upon that advice, the client can not later validly attack his guilty plea on the basis of attorney coercion." ) (citation omitted); see also, U.S. v. Juncal, 245 F.3d 166, 172 (2d Cir. 2001) (" Nor does defense counsel' s blunt rendering of an honest but negative assessment of appellant' s chances at trial, combined w ith advice to enter the plea, constitute improper behavior or coercion that w ould suffice to invalidate a plea." ). Additionally, Petitioner has failed to show that counsel' s recommendation to plead guilty w as so erroneous as to amount to ineffective assistance of counsel. See, U.S. v. Applebaum, 1995 WL 723348 at * 10. In that regard, by pleading guilty to the information, Petitioner w as able to limit the maximum possible sentence to 30 years, as opposed to a sentence of life imprisonment that he otherw ise could have faced, pursuant to 21 U.S.C. § 841(b)(1)(B), if he had been indicted. Moreover, by pleading guilty Petitioner received a three-point reduction of his offense level for acceptance of responsibility. Accordingly, Petitioner has not show n that his attorney' s advice to plead guilty constituted ineffective assistance.

Counsel Was Not Ineffective For Failing to Argue That Drugs Were For Petitioner' s Personal Use Petitioner contends that his counsel w as ineffective for failing to challenge the calculation of his base offense level, w ith regard to the quantity of cocaine base that he possessed w ith the intent to distribute. Specifically, Petitioner alleges that, because of his history of cocaine addiction, his attorney should have argued that all of the drugs he possessed w ere intended for his ow n consumption. (See, Petitioner' s Motion to Amend [#24] at 9) (" [T]he evidence clearly demonstrated that the drugs Defendant [w as] arrested for w ere strictly for personal use." ). On this point, Petitioner is correct that, " in calculating the quantity of drugs relevant for purposes of sentencing under 21 U.S.C. § 841, any fractional quantity of drugs intended for personal use must be excluded." U.S. v. Williams, 247 F.3d 353, 358 (2d Cir. 2001). How ever, in this case, during his plea allocution, Petitioner stated under oath that he possessed the entire 45 bags of cocaine base w ith the intention of distributing them. Consequently, Petitioner cannot now contradict those statements to prove that his attorney w as ineffective. See, U.S. v. Hernandez, 242 F.3d 110, 114 (2d Cir. 2001) (" [H]e fails on the merits because his factual assertions regarding his counsel' s alleged ineffectiveness simply contradict his sw orn statements at the plea allocution." ).

Counsel Was Not Ineffective For Failing to Request A Competency Exam Petitioner argues that counsel should have asked the Court to order a competency examination, based on Petitioner' s history of drug abuse and the fact that he w as taking certain prescription medications. In that regard, [t]he test for competence is " w hether the defendant has ' sufficient present ability to consult w ith his law yer w ith a reasonable degree of rational understanding' and has a ' rational as w ell as factual understanding of the proceedings against him.' " Godinez[v. Moran], 509 U.S. at 396 (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)). There are " no fixed or immutable signs w hich invariably indicate the need for further inquiry to determine fitness to proceed." Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The court may consider many factors to assess competency, including: " evidence of a defendant' s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial." Drope, 420 U.S. at 180. The court' s ow n observations of the defendant are also relevant to its determination, though observations alone " cannot be relied upon to dispense w ith a hearing on that very issue" if there is substantial other evidence that the defendant is incompetent. Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); see also United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir.1986) (" [D]eference is ow ed to the district court' s determinations based on observation of the defendant during the proceedings." ). A " failure by trial counsel to indicate that the defendant had any difficulty assisting in preparation or in comprehending the nature of the proceedings ' provides substantial evidence of the defendant' s competence.' " United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.1995) (quoting Vamos, 797 F.2d at 1150); see also Drope, 420 U.S. at 177, n. 13 (stating counsel' s judgment of competence is " unquestionably a factor w hich should be considered." ).

Davila v. U.S., No. 07-CV-1320 (JBW), 2008 WL 906691 at * 12 (E.D.N.Y. Mar. 31, 2008). Here, it is undisputed that Petitioner has a history of abusing illegal drugs, including cocaine and heroin. How ever, at the time of his plea in this case, on September 15, 2004, Petitioner had been in custody for over a month, and there is no indication that he used illegal drugs during that time. Further, although at the time of the plea Petitioner w as suffering from a variety of ailments, including heart disease, asthma, hypertension, and depression, for w hich he w as taking prescribed medications including Albuterol inhaler, Clonidine HCL (hypertension), aspirin, Advair inhaler, Trazodone (anti-depressant), Furosemide (a diuretic), and Wellbutrin (anti-depressant), there is nothing to suggest that such medications rendered Petitioner incompetent. To the contrary, during the plea and at sentencing, Petitioner behaved normally and responded appropriately to questions put to him by the Court. During the plea, Judge Telesca, w ho w as personally familiar w ith Petitioner,*fn7 observed Petitioner' s demeanor and specifically found that Petitioner w as " fully competent and capable of entering an informed plea," and that Petitioner w as " aw are of the nature of the charges and the consequences of his plea." (Plea Transcript at 9). At sentencing, the undersigned read aloud a lengthy and thoughtful letter that Petitioner had sent to the Court, in w hich he discussed the problems that he had experienced in his life, his faith in God and his plans to improve his life. (Sentencing Transcript at 2-5). The letter gave the Court no reason to question Petitioner' s competence. Later during sentencing, Petitioner spoke lucidly about his concerns regarding medical treatment in prison, and he asked the Court for leniency. (Id. at 9-10). Again, there w as nothing in Petitioner' s speech or demeanor to indicate that he w as incompetent. Nor does Petitioner claim that there w as anything unusual about his demeanor or behavior that w ould have caused either his attorney or the Court to question his competency. Instead, Petitioner argues that his attorney should have presumed that Petitioner w as not competent, based solely on his past drug usage and the fact that the w as taking prescription medications for his medical problems. The Court disagrees and, accordingly, Petitioner' s claim of ineffective assistance of counsel, based on the alleged failure to request a competency hearing, is denied.

Counsel Was Not Ineffective For Failing to Challenge the Career Offender Classification

Petitioner also alleges that counsel w as ineffective for failing to challenge the sentence calculation under the advisory sentencing guidelines, w hich designated him as a career offender under Guideline § 4B1.1(a). Specifically, Petitioner alleges that his attorney failed to investigate his convictions for Attempted Criminal Possession of a Controlled Substance in the Third Degree, pursuant to Penal Law § 220.16, and that if she had, she w ould have discovered that those convictions w ere not " controlled substance offenses." In this regard, Petitioner relies on the fact that, although he w as indicted for violating Penal Law § 220.16(1), which clearly would qualify as a controlled substance offense, the Judgments of Conviction state only that he was convicted of "Att CPCS 3rd," without specifying a particular sub-section of Penal Law § 220.16. On this point, Petitioner cites U.S. v. Green, 480 F.3d 627 (2d Cir. 2007), a case involving facts very similar to the subject matter, in which the Second Circuit held, inter alia, that the district court was not entitled to rely on the indictment in determining that the defendant had been convicted of Attempted Criminal Possession in the Third Degree in violation of Penal Law § 220.16(1).

However, the Court finds that Petitioner's reliance on Green is misplaced. In that regard, the Court notes, at the outset, that when applying the first Strickland prong, courts must be mindful of the diversity of the bar and the variety of approaches effective attorneys might employ when dealing with a particular set of facts. To give appropriate deference to counsel's independent decisionmaking, we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Another familiar risk is that, in the illuminating light of hindsight, we might look back and project ex post knowledge of consequences on the attorney's ex ante selection of one path among the many available to him. To counteract this inclination to evaluate counsel's performance against insight gained only through the passage of time, Strickland requires that "[w]hen assessing whether or not counsel's performance 'fell below an objective standard of reasonableness ... under prevailing professional norms,' " we must "consider the circumstances counsel faced at the time of the relevant conduct and ... evaluate the conduct from counsel's point of view." [Davis v. Greiner, 428 F.3d 81, 88 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052) (first ellipsis in original).

Parisi v. U.S., 529 F.3d 134, 141 (2d Cir. 2008). Consequently, an attorney is not ineffective for failing to anticipate a change in the law , unless such failure w as objectively unreasonable. See, Id. (" Under Strickland, w e must consider the circumstances counsel faced at the time of the relevant conduct, and [Petitioner] has not persuaded us that his attorney erred in not anticipating such a development in the law ." ) (citation omitted).

Considering the applicable law , the Court finds that defense counsel w as not ineffective for failing to challenge Petitioner' s classification as a career offender. First, the Court notes that Green w as not decided until March 13, 2007, w hich w as more than tw o years after the events at issue in this case. Additionally, Green is distinguishable since, unlike Petitioner, the defendant in Green did not agree, as part of his plea, that he w as a career offender. Moreover, unlike the instant case, in Green the government w as unable to produce a judgment of conviction. U.S. v. Green, 480 F.3d at 630 (" The government w as unable, how ever, to obtain from the New York court . . . a formal judgment." ). Furthermore, in this case, Petitioner' s classification as a career offender, based in part on his convictions under PL § 220.16, w as consistent w ith the Second Circuit' s decision in U.S. v. King, 325 F.3d 110 (2d Cir. 2003), cert. denied, 540 U.S. 920, 124 S.Ct. 313 (2003), w hich also involved New York Penal Law § 220.16. Specifically, in King, as here, the defendant had a prior conviction for Attempted Possession of a Controlled Substance in the Third Degree in violation of Penal Law § 220.16. Id. at 112. At sentencing, the district court held that this prior conviction constituted "a serious drug offense" within the meaning of 18 U.S.C. § 924(e). On appeal, the defendant raised the exact same argument as the one raised by Petitioner, namely, that since the certificate of conviction did not reference a particular sub-section of PL § 220.16(1), there was no way to tell if his conviction involved possession with the intent to distribute. However, in affirming the district court's ruling, the Second Circuit rejected the defendant's argument and held, inter alia, that the district court properly relied on the indictment in determining that the defendant's conviction involved the intent to distribute. In that regard, the court wrote:

The first count of the New York State indictment against King charged him with the crime of CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE in violation of Section 220.16(1) of the Penal Law of the State of New York committed as follows: The said ANTHONY KING ... knowingly and unlawfully possessed a narcotic drug with intent to sell it, to wit: cocaine.

People v. King, No. 92/0141 (N.Y. County Court, Indictment). King pleaded guilty to a reduced charge of "attempted" criminal possession of a controlled substance in the third degree. Although King suggests that his plea was ambiguous and may have related to some subsection of § 220.16 other than subsection (1)-and hence might not have admitted intent to sell-there is nothing in the record to support this suggestion. Only count one of the indictment charged King with cocaine possession in the third degree, and that count alleged that he violated § 220.16(1). Although two additional counts charged King with cocaine possession, those counts charged possession only in lesser degrees. In light of the facts that the certificate of King's conviction shows his plea of guilty to attempted possession in the third degree, that only one count of the indictment charged King with possession in the third degree, and that that count cited subsection (1) of § 220.16, we conclude that King's conviction was properly interpreted as one for attempt to violate 220.16(1).

U.S. v. King, 325 F.3d at 114 (emphasis added). Similarly, here the judgments of conviction showed that Petitioner pleaded guilty to "Att CPCS 3rd", and the relevant indictments showed that Plaintiff was indicted specifically for violating Penal Law § 220.16(1). Therefore, pursuant to King, it was proper to interpret Petitioner's convictions as involving the attempt to violate Penal Law § 220.16(1). Additionally, as stated before, Petitioner agreed as part of his plea that his convictions under Penal Law § 220.16 were "controlled substance offenses." Accordingly, counsel's failure to challenge those convictions as being controlled substance offenses, within the meaning of USSG § 4B1.1, was not objectively unreasonable.

Appellate Counsel Was Not Ineffective

Lastly, Petitioner contends that Appellate Counsel was ineffective, for failing to raise the same issues discussed above on his direct appeal, and for instead arguing that Petitioner should have received a downward departure based on his medical circumstances. (See, Petitioner's Traverse/Reply at 14) ("Appellate counsel overlooked the stronger arguments based on his lack of investigation and raised frivolous issues regarding Petitioner's mental and physical health pursuant to U.S.S.G. § 5H1.4 which this [sic] issue is discretionary and if the issue was meritorious this Court would have granted trial counsel's downward departure motion."). In that regard, it is well settled that, [i]n attempting to demonstrate that appellate counsel's failure to raise a . . . claim constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that counsel omitted a non-frivolous argument, for counsel does not have a duty to advance every non-frivolous argument that could be made. See Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 3314, 77 L.Ed.2d 987 (1983). However, a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker. As the Seventh Circuit has held: 'When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.' Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1985).

Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (some citations omitted). As already discussed, the issues that Petitioner believes should have been raised on appeal lack merit.

Accordingly, the Court cannot find that the issue that counsel raised on appeal was clearly and significantly weaker. Therefore, Petitioner's claim of ineffective assistance of appellate counsel is denied.

CONCLUSION

For the foregoing reasons, Petitioner's application is denied, and this action is dismissed. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability, since Petitioner has not made a substantial showing of the denial of a constitutional right.

So Ordered.


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