The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Juan Urias Medina ("Petitioner") filed the instant motion pursuant to 28 U.S.C. § 2255 challenging his criminal conviction and sentence. The government opposes this motion. For the reasons that follow, the motion is denied and his petition is dismissed.
On October 2, 2003, Petitioner, Juan Urias Medina, was convicted of Conspiracy to Possess and Distribute Marijuana, in violation of Title 21 U. S. C. §§ 841 (a)(1), 846. On June 14, 2004, he was sentenced to 135 months imprisonment and five (5) years supervised release. Petitioner then appealed his conviction to the Second Circuit Court of Appeals, which, in a decision entered on September 19, 2005, affirmed the conviction and remanded the matter pursuant to United States v. Crosby, 397 F. 3d 103 (2d Cir. 2005). See United States v. Medina, 149 Fed. Appx. 32, 2005 WL 2277628 (2d Cir. Sept. 19, 2005). This Court considered Petitioner's re-sentencing arguments and, on December 29, 2005, determined that the original 135-month sentence remained appropriate. See 12/29/05 Dec. & Ord., dkt. # 650. On September 22, 2006, the Second Circuit affirmed the Court's re-sentencing decision. See Mandate, dkt. # 708.
Petitioner has now filed a motion pro se pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. He alleges that: (1) both his trial counsel and appellate counsel were constitutionally ineffective because they failed to raise a "buyer-seller" defense to the conspiracy charge; (2) his trial counsel was constitutionally ineffective because he failed to inform Petitioner that Petitioner could have entered a plea to the indictment and received a three-level reduction for acceptance of responsibility; and that (3) Amendment 709, a November 2007 amendment to the Sentencing Guidelines, should lower his criminal history category from II to I and reduce his sentence accordingly. The government has opposed the motion and Petitioner filed a reply.
a. Ineffective Assistance Claims
To prevail on a Sixth Amendment claim for ineffective assistance of counsel, a petitioner bears the heavy burden of proving, by preponderance of the evidence, that (1) counsel's conduct "'fell below an objective standard of reasonableness,'" and that (2) this incompetence caused prejudice to the petitioner. United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005)(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). This standard applies equally to the conduct of appellate counsel. Frederick v. Warden, 308 F.3d 192, 197 (2d Cir. 2002). In determining whether counsel was constitutionally ineffective, "[a] court can jump [directly] to the prejudice prong without first determining whether counsel's performance was deficient." United States v. Burch, 166 F. Supp. 2d 1319, 1322 (D. Kan. 2001); see also Goodrich v. Smith, 643 F. Supp. 579, 582 (N.D.N.Y. 1986). As explained in Strickland, and as followed by this Court:
[A] court need not determine whether counsel's performance was deficient before examing [sic] the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.
Goodrich, 643 F. Supp. at 582 (alteration in original) (quoting Strickland, 466 U.S. at 697). Further, a court can often make this determination on the record before it, as supplemented by affidavits of counsel and submissions by the petitioner, and need not hold an evidentiary hearing in each case. Crisci v. United States, 2004 WL 1932638, at *27 (2d Cir. Aug. 31, 2004) (rejecting ineffective assistance of counsel claim without conducting hearing based on affidavits from petitioner and his counsel); see also Chang v. United States, 250 F.3d 79, 82, 84--85 (2d Cir. 2001) (finding no abuse of discretion where district court denied, without a hearing, § 2255 motion alleging ineffective assistance of counsel following submissions of petitioner and his counsel that demonstrated petitioner was not entitled to relief).
To satisfy the prejudice prong of Strickland, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. This probability must be shown with at least "some objective evidence other than defendant's self-serving assertions. . . ," Crisci, 2004 WL 1932638, at *27; see also Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (requiring additional objective evidence), since "in most circumstances a convicted felon's self-serving testimony is not likely to be credible." Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003). Accordingly, a petitioner's "bare, unsubstantiated, [and] self-serving . . . statement[s]" are generally insufficient by themselves to sustain an ineffective assistance of counsel claim unless they are found credible given all the relevant circumstances. Slevin v. United States, 71 F. Supp. 2d 348, 357, 357 n.7 (S.D.N.Y. 1999); see also Purdy, 337 F.3d at 259 (noting that although a petitioner's statements ought not be rejected solely because they are unsubstantiated, they will be insufficient unless found credible given all relevant circumstances).
1. Failure to Raise "Buyer-Seller" Defense
Petitioner first argues that both his trial counsel, Joseph McCoy, Esq., and his appellate counsel, Bruce R. Bryan, Esq., were constitutionally ineffective because they failed to raise a "buyer-seller" defense to the conspiracy charge. A petitioner cannot prevail on an ineffective assistance claim based on the failure to raise a defense, however, if that defense was "meritless" or would have "stood little chance of success." Shire v. Costello, 2008 WL 2323379, at *12 (N.D.N.Y. June 2, 2008); see United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not amount to ineffective assistance."), cert. denied, 531 U.S. 811 (2000); Hall v. Phillips, 2007 WL 2156656, at *13 (E.D.N.Y. July 25, 2007) ("The law in this circuit is clear that when the underlying claims themselves are found to be meritless, the ineffective assistance claim is meritless as well."). Therefore, if the buyer-seller defense would have been meritless under the circumstances of this case, Petitioner's claim that ...