The opinion of the court was delivered by: Denise Cote, District Judge
Luis Maldonado has moved pursuant to 28 U.S.C. § 2255 to vacate his conviction on the ground that his counsel, who represented him at his plea of guilty and on appeal, was ineffective. For the following reasons, the petition is denied.
Maldonado was charged on June 12, 2001, in a single count indictment with conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin from 1995 through August 1996, in violation of 21 U.S.C. § 846. The Government's evidence, which included conversations recorded pursuant to court-authorized wiretaps, showed that Maldonado was the principal supplier of heroin to a heroin distribution organization led by Jose Antonio Garcia ("Garcia").
Maldonado was arrested on July 2, 2001. In the Pimentel letter that the Government provided to his counsel, the Government estimated that his offense level was 43.*fn1 This estimate was based on a base offense level of 38 for the distribution of more than 30 kilograms of herion; a 2 level enhancement for possession of a firarm in connection with the drug-distribution activities; and a 4 level enhancement for Maldonado's role in the offense. The letter opposed any adjustment for acceptance of responsibility. Based on a Criminal History Category II, the letter projected a guidelines sentence of life imprisonment.
Maldonado pleaded guilty on May 1, 2003, before the Honorable Andrew Peck. Maldonado admitted to distributing more than one kilogram of heroin through his arrangements with others. On May 16, the Honorable John Martin accepted the plea.
The presentence report ("PSR") found that the guidelines range was 292 to 365 months' imprisonment based on an offense level of 38 and a Criminal History Category of III. It awarded a 2 level adjustment for acceptance of responsibility; and it rejected any role enhancement.
Judge Martin held a Fatico hearing on September 24, 2003. Based on the hearing evidence, Judge Martin found that Maldonado was responsible for the distribution of 10 to 30 kilograms rather than 30 kilograms or more. This finding resulted in a base offense level of 36. Judge Martin also found that Maldonado did possess a firearm in relation to drug trafficking and did lead and organize five or more participants in the criminal activity. He awarded a 2 level adjustment for acceptance of responsibility. As a result, the total offense level was 40, with a guidelines range of 360 months' to life imprisonment.
Judge Martin then departed from the guidelines range, both horizontally and vertically. Finding that Maldonado was a substantial, but medium-level drug dealer who customarily dealt in half-kilo lots, the court concluded that the conduct was outside the heartland of dealers who distribute 10 to 30 kilograms of heroin, and departed 2 levels. Referring to the timing of a state case, whose resolution had increased Maldonado's criminal history category, the judge departed horizontally from Criminal History Category III to II. With an offense level of 38 and in Criminal History Category II, the guidelines range became 262 to 327 months' imprisonment. Judge Martin sentenced Maldonado principally to 262 months' imprisonment after the conclusion of the Fatico hearing, and requested that the sentence run concurrently with Maldonado's nine-year state sentence for kidnapping.
On appeal, Maldonado challenged the drug quantity determination. The Court of Appeals affirmed the sentence, but stayed its mandate pending the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). Following the Booker decision, the Second Circuit remanded the case for further proceedings in conformity with United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).
On remand, the case was reassigned to this Court. At a Crosby remand proceeding on May 24, 2006, the Court declined to resentence Maldonado. On November 8, 2007, the Court of Appeals rejected Maldonado's appeal and affirmed his sentence. Maldonado's petition for certiorari was denied on March 3, 2008.
On July 28, 2008, Maldonado filed this habeas petition, raising three ineffective assistance of counsel claims.*fn2 The claims concern Maldonado's representation in connection with his plea of guilty, at the Fatico hearing and sentence, and on direct appeal. He asks for a hearing to resolve these claims. Assigned CJA counsel Stephanie Carvlin represented Maldonado at each of the challenged proceedings, and has submitted an affidavit of February 5, 2009, pursuant to the Court's Order of December 29, 2008, to address Maldonado's claims about the adequacy of her representation. The Government opposed Maldonado's petition on February 13, and Maldonado filed a reply on March 16.
To prevail on an ineffective assistance of counsel claim, a defendant must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that, as a result, he suffered prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984); accord Hernandez v. United States, 202 F.3d 486, 488 (2d Cir. 2000). The performance inquiry examines the reasonableness of counsel's actions under "all the circumstances," Strickland at 688, and from the perspective of counsel at the time. Id. at 689; Rompilla v. Beard, 545 U.S. 374, 381 (2005); accord Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). A court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. To show prejudice, the ...