The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
On September 22, 2003, Petitioner Miguel Casiano was convicted by a jury of conspiracy to distribute and possess with intent to distribute cocaine base, heroin and cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). On March 9, 2004, Petitioner was sentenced to 144 months of incarceration. He was re-sentenced following appeal to the same term on November 30, 2005. Now before this Court is Petitioner's motion for a sentence of time served or, alternatively, to set aside the jury verdict pursuant to 28 U.S.C. § 2255.*fn1
For the reasons set forth below, Petitioner's application is denied.
The following facts are drawn from the parties' submissions in connection with this motion. Disputes are noted.
In June 2002 the Federal Bureau of Investigation began investigating a narcotics trafficking organization, headed by Jose Diaz, also known as "Joe Monte," that distributed large quantities of heroin, cocaine, cocaine base, and ecstacy during the period from January 2000 to November 12, 2002. September 2003 Trial Transcript (hereinafter "Tr. ___") 47. The heroin was sold by Diaz's organization to other drug dealers, typically in bulk or pre-packaged form, bearing Diaz's brand name, "Scorpion." During the course of the investigation, confidential informants purchased "Scorpion" brand heroin from Diaz and other individuals. Many of the covert purchases were made at Diaz's garage, located at 1208 Decatur Street in Brooklyn.
In September 2002, agents obtained court authorization to intercept communications made on Diaz's cellular telephone. Agents monitored and intercepted calls over Diaz's telephone during the period from September 26, 2002 through November 7, 2002. At the conclusion this period, agents obtained arrest warrants for Diaz, Petitioner, and 19 other individuals, as well as search warrants for locations in Brooklyn and the Bronx used by the Diaz organization to store, package and distribute narcotics.
On November 13, 2002, Petitioner and 19 other individuals were arrested and charged with conspiring to distribute heroin, cocaine, cocaine base, and MDMA. Edwin Perez, who was tried with Petitioner, was among those arrested. With the exception of a lone fugitive, all of Casiano and Perez's co-defendants pled guilty prior to September 2003. After a nine-day trial in September 2003, a jury convicted Casiano and Perez of the narcotics distribution conspiracy charge, the sole charge against them.
Petitioner was sentenced on March 9, 2004. Although his Sentencing Guidelines range called for a sentence between 188 and 235 months of imprisonment, I granted Petitioner a downward departure on grounds of an extraordinary medical condition and imposed a sentence of 144 months. On appeal, the Second Circuit affirmed the Petitioner's conviction, but remanded the case for re-sentencing in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). On November 30, 2005, I rejected Petitioner's request for a further downward departure and re-sentenced the defendant to 144 months imprisonment.
Petitioner again appealed. The Second Circuit granted the government's motion for summary affirmance on June 25, 2008.
Petitioner's motion includes seven claims.*fn2 Petitioner alleges that: 1) the jury's verdict convicting him of conspiracy to distribute narcotics was constitutionally invalid, 2) his trial should have been severed from his co-defendant, 3) he was denied effective assistance of counsel, 4) his right to confrontation was denied, 5) his actions were consistent with innocence, 6) his sentence of 144 months imprisonment constitutes "cruel and unusual punishment," and 7) he is eligible for a sentence reduction based on the amended Sentencing Guidelines.
I. The Jury Verdict Was Not Constitutionally Invalid
Petitioner was convicted of conspiracy to distribute and possess with intent to distribute cocaine base in the amount of 50 grams or more, heroin in the amount of 1 kg or more, and cocaine in the amount of 5kg or more. He contends that the jury verdict was defective because the evidence at trial did not establish the quantity of drugs alleged or the elements of conspiracy.*fn3
A defendant challenging the sufficiency of the evidence that was the basis of his conviction at trial "bears a heavy burden." United States v. Iodice, 525 F.3d 179, 182 (2d Cir. 2008) (internal citation omitted). The Second Circuit has stated that the evidence should be considered "in the light most favorable to the government, crediting every inference the jury might have drawn in favor of the government." Id. at 66 (citing United States v. Naiman, 211 F.3d 40, 46 (2d Cir. 2000)); see also United States v. Jones, 482 F.3d 60, 68 (2d Cir. 2006). The court must determine "whether, after viewing the evidence in the light most favorable to the [government], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Lorenzo, --- F.3d ---, 2008 WL 2780992, at *5 (2d Cir. Jul. 18, 2008) (internal quotations omitted); see also United States v. Florez, 447 F.3d 145, 154 (2d Cir. 2006). Direct evidence is not required; "[i]n fact, the government is entitled to ...